1

I EVOLUTION OF ADMINISTRATIVE LAW, DEFINITION AND

ITS SCOPE
Administrative Law has been characterized as the most
"outstanding legal development of the 201h century.''1 It does not
mean, however that the concept of administration was not in
existence in any country before the 20th century. It is an ancient
as the administration itself. Today the administration is ubiquitous
and impinges freely and deeply on every aspect of individual's
life. Therefore, administrative law has become a major area for
study and research.
In every country, there must be a perfect administrative
machinery which helps to maintain law and order in the society
and also it is an instrument which facilitate the concept of welfare
state in the country. The emergence of social welfare concept has
affected the democracies very profoundly. It has led to State
activism. The functions of modern State may broadly be place
into the following categories viz. the State as a protector,
provider, entrepreneur economic controller and arbiter. A State
consist of 3 organs-legislative, 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. Administration is the all-pervading feature
of life today.
In the modern democratic society administrative law has acquired
an immense accession of power and has come to discharge
fu·nctions which are varied and multifarious in scope nature and
ambit. In the words of Robson, the hegemony of the executive is
now an accomplished fact.2 The increase in administrative
functions has created a vast new complex of relation between the
administration and the citizen. 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.
In such a context, a study of administrative law become of great
 2

significance. A careful and systemic 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 a progressive branch and it is not possible to
confine the meaning of administrative
process in some words. Many scholars and jurists define the
administrative law with their different approaches.

According to American scholar, Kenneth Culp Davis,

administrative law is the law concerning the powers and
procedures of administrative agencies, including especially the
law governing judicial review
of administrative action. It does not include the enormous mass
of substantive law produced by the agencies.3

Dicey has defined administrative law as denoting that as that

portion of a nation’s legal system, which determines the status and
liabilities of all state officials and private individuals in dealings with
public officials, and which specifies the procedure by which those
rights and liabilities can be enforced. Dicey's formulation refers
primarily to one aspect of administrative law i.e. control of public
officials. Dicey formulated his definition with droit administrative in
view.4
Sir Ivor Jennings defines administrative law as the law relating to
the administration. It determines the organisation, powers and the
duties of administrative authorities.5
The unenviable diversity in definitions of the term 'administrative
law' is also due to the fact that every administrative law specialist
tries to lay more emphasis on any one particular aspect of the
whole administrative process, which according to his own
evaluation deserves singular attention.
A satisfactory and a proper formulation to define the scope,
content and ambit of administrative law appears to be as follows-
"Administrative law deals with the structure, power and functions
 3

of the organs of administration; the limits of their power, the

procedure and method in execution of their power and functions;
methods to control their powers including the legal remedies
available to the person aggrieved in case of infringement of his
right. Principles of administrative law emerge and develop
whenever and wherever any person becomes the victim of
arbitrary exercise of public power. Therefore, it will not be
incorrect to say that no one can specialize in administrative law.6
Administrative law is a by-product of intensive form of
government. In the present scenario, the role of government has
changed in almost every country of the world. Today there is a
demand by the people
. that government must solve their problems rather than merely
define their rights. It is felt that the right of equality in the
American Constitution will be a sterile right if the black is the first
to lose his job and the last to be re-employed. In the same
manner the equality clause in the Indian constitution would
become meaningless, unless the government comes forward to
actively help the weaker sections of society to bring about
equality in fact. This implies the growth of administrative law and
process.
The philosophy of welfare State has been specially embodied in
the constitution of India. Constitution itself provides social,
economic and political justice, equality of status and opportunity
to all the citizens of India. For the implementation of all these
objects the State is given power to impose reasonable restrictions
even on the fundamental rights guaranteed by the constitution.
Where there is a conflict between the societal interest and
individual interest. The societal interest will prevail over individual
interest State has a duty to protect the individual interest as well
as societal interest and maintain a balance between two.
Thus, on the one hand, the activities and powers of the
Government and administrative authorities have increased and
on the other hand, there is greater need for the enforcement of
the rule of law and judicial review over these powers, so that the
citizens should be free to enjoy the liberty guaranteed to them by
 4

the constitution. For this purpose, provisions are made in the

statues giving right of appeal, revision etc and at the same time
extraordinary remedies are available to them under Articles 32,
226 and 227 of the constitution of India. The principle of judicial
review is also accepted in our constitution and the orders passed
by the administrative authorities can be quashed and set aside if
they are malafide or ultravires the Act or the provisions of the
constitution. And if the rules, regulations or orders passed by
these authorities are not within their powers, they can be
declared ultravires, unconstitutional, illegal or void.
Reasons for the growth of Administrative Law: The
following factors are responsible for the rapid growth and
development of administrative law-
1. There is a radical change in the philosophy of the role played
by the state. The negative policy of maintaining law and order
and social welfare is changing. The state has not confined its
scope to the traditional and minimum functions of defense
and administration of justice, but has adopted the positive
policy and as a welfare state has undertaken to perform
varied functions 11.

2. It is not possible to decide and settle all the matters in

dispute by the judicial system. It was already overburdened,
and it was not possible to expect speedy disposal of even
very important matters, e.g. lookout, strikes etc. Therefore,
industrial tribunals and labour courts over established, which
possessed the techniques and expertise to handle these
complex problems.
3. It is not possible that legislature laid down each and every
detailed rules and provisions, they were found to be
inadequate and therefore, it was felt necessary to delegate
some powers to the administrative authorities.
4. There is a scope for experiments in the administrative
process. The rules and regulations can be made for a certain
period, they can be altered or modified within a short period
according to the changing circumstances. Thus, legislature is
 5

rigid in character while administrative process is flexible.

5. The administrative authorities can avoid technicalities, for
instance, administrative tribunals are not bound by the rules
evidence and procedure and they can take a practical view
of the matter to decide complex problems.
6. Administrative authorities can take preventive measures and
effective steps for enforcement of such preventive measures
which are not generally available through regular courts of
law.
Difference between Constitutional Law and
Administrative Law: Earlier there was no difference between
administrative law and constitutional law. Therefore, Keith
observed-"lt is logically impossible to distinguish administrative
from constitutional law and all attempts to do so are artificial".
However, according to Holland, the constitutional law describes
them in motion. Therefore, according to this view, the structure of
the legislature and the executive comes within the purview of the
constitutional law but their functions come within the purview of
administrative law. 7
According to Sir Ivor Jennings, administrative law deals
with the organisation, functions, powers and duties of
administrative authorities while constitutional law deals with the
general principles relating to the powers and organisation of the
various organs of the State and their mutual relationship and
relationship of these organs with the individuals.8
It can be said that constitutional law concern with the rights
and administrative law lays emphasis on public needs. However
the dividing line between constitutional law and the administrative
law is a matter of convenience because every student of
administrative law has to study some constitutional law.9
In the countries which have written constitution like India,
the difference between constitutional law and Administrative law is
not a problem. In such countries the source of constitutional law is
the constitution while the source of administrative law may be
 6

statutes, statutory instruments, precedents and customs. Though

at times of disciplines of constitutional law and administrative law
may overlap.
In India, in the watershed one can include the whole
control mechanism provided in the constitution for the control of
administrative authorities, i.e. Articles 32, 136, 226, 227, 300
and 311. It may also include the study of those administrative
agencies which are provided for by the constitution itself, i.e.
Interstate Council, Article 263, Finance Commission, Article
280; Interstate Water Dispute Authority, Article 262; Public
Service Commissions, Article 315 and Election Commission,
Article 324. It may be further included the study of
constitutional limitations on delegation of powers to the
administrative authorities and also those provisions of the
constitution which place fetters on administrative action i.e.
fundamental right.
 7

RULE OF LAW

General: The Rule of law is a viable and dynamic concept and

the term "Rule of law" is derived form the French phrase la
principe de legalite (the principles of legality) which refers to the
government based on the principles of law and not of men. In this
sense the concept of la principe de legalite was opposed to
arbitrary powers. Rule of the law is one of the basic principle of
the common law in England. This doctrine is accepted in the
constitution of U.S.A. and also in the constitution of India.
Sir Edward Koke was the originator of this concept and Dicey
developed this theory in his boot "The law and the constitution'
published in the year 1885.
Meaning: The concept of Rule of Law is not capable of any exact
definition. This, however does not mean that there is no
agreement on the basic values which it represents. The term Rule
of law can be used in two senses: (i) formalitistic sense; and (ii)
ideological sense. If used in formalistic sense it refers to
organised power as opposed to a rule by one man and if used in
an ideological sense it refers to the regulation of the relationship
of the individual and the state and in this sense it becomes a
concept of varied interest and content. Every legislative,
executive and judicial exercise of power must, therefore depend
on the ideal and values represented by Rule of Law for its validity.
Consequently, it is Rule of Law which defines law rather than the
law defining the Rule of Law According to Dicey, the rule of law is
one of the fundamental principles of English legal system. He
attributed the following three meaning of the said doctrine:
(i) Supremacy of law-Dicey states that rule of law means the
absolute supremacy or predominance of regular law as
opposed to the wide discretionary power. A man may be
punished for a breach of law, but can be punished for nothing
else.10 In the words of Dicey, wherever there is a discretion,
there is a room for arbitrariness. As wade11 says the rule of
law requires that the Government should be subject to the law,
 8

rather than the law subject to the Government.

(ii) Equality before law-Dicey states that there must be an
equality before law or equal subjection of all classes to the
ordinary law of the land administered by the ordinary courts of
law. He criticised the French Legal System of droit
administrative in which there were separate administrative
tribunals for deciding cases between the State and citizens.
According to Dicey, exemption of the civil servants from the
jurisdiction of the ordinary courts of law and providing them
with the special tribunals was the negation of the equality. In
the words of Lard Denning12 - Our English Law does not
allow to shelter behind a droit administrative."
(iii) Predominance of legal spirit-Dicey emphasised the role of
the courts of law as guarantors of liberty and suggested that
the rights would be secured more adequately if they are
enforceable in the courts of law than by mere declaration of
those rights.
Application of the Concept of Rule of Law: In England, the
doctrine of the rule of law was applied in concrete cases. According
to wade,13 if a man is wrongfully arrested by the Police, he can file
a suit for damages against them as if the police were private
individuals. In a famous case of Entick V. Carrington,14 a
publisher's house and papers were ransacked by the king's
messengers sent by the Secretary of State.
Modern Concept of Rule of Law: The doctrine of rule of law
expounded by Dicey was never fully accepted in England even in
his days. He failed to distinguish arbitrary power from discretionary
power. Though arbitrary power is inconsistent with the concept of
rule of law, discretionary power is not, if it is properly exercised.
The modern welfare of the state cannot work properly without
exercising discretionary powers. Arbitrary power is inconsistent with
the concept of rule of law but discretionary power not, if it is
properly.
As Mathew, J. Stated-"lf it is contrary to the rule of law that
discretionary authority should be given to Government
 9

departments or public authorities, than there is no rule of law in any

modern state.15
In the present context, Dicey's theory of rule of law cannot be
accepted in its totality. Davis16 gives seven principal meanings of
term Rule of Law-
1. Law and order
2. Fixed Rules
3. Elimination of discretion
4. Due process of law or fairness
5. Observance of the principles of the natural justice
6. Preference for judges and ordinary courts of law to
executive authorities and administrative tribunals
7. Judicial review of the administrative functions.
Rule of Law in lndia20:
In India, the concept of Rule of law can be traced back to the
Upanishads. In modern day as well, the scheme of the Indian
Constitution is based upon the concept of rule of law. The framers
of the Constitution were well familiar with the postulates of rule
of law as propounded by Dicey and as modified in its application
to British India. It was therefore, in the fitness of things that the
founding fathers of the Constitution gave due recognition to the
concept of rule of law. The doctrine of Rule of Law as
enunciated by Dicey has been adopted and very succinctly
incorporated in the Indian Constitution. The ideals of the
Constitution viz; justice, liberty and equality are enshrined in the
Preamble itself (which is part of the Constitution). The
Constitution of India has been made the supreme law of the
country and other laws are required to be in conformity with it.
Any law which is found in violation of any provision of the
Constitution, particularly, the fundamental rights, is declared void.
The Indian Constitution also incorporates the principle of equality
before law and equal protection of laws enumerated by Dicey
 10

under Article 14. The very basic human right to life and personal
liberty has also been enshrined under Article 21. Article 19(1) (a)
of the Indian Constitution guarantees the third principle of the
Rule of law (freedom of speech and Expression). No person can
be convicted of any offence except for violation of a law in force
at the time of the commission of the act charged as an offence
is also very well recognized in the Indian Constitution. The
principles of double jeopardy and self-incrimination also found its
rightful place in the Constitution. Articles 14, 19 and 21 are so
basic that they are also called the golden triangle Articles of the
Indian Constitution. The Constitution also ensures an
independent an impartial Judiciary to settle disputes and
grievances for violation of fundamental rights by virtue of Articles
32 and 226. In Union of India v. President, Madras Bar
Association , the Supreme Court held that"Rule of Law has
several facets, one of which is that disputes of citizens will be
decided by Judges who are independent and impartial; and that
disputes as to legality of acts of the Government will be
decided by Judges who are independent of the Executive."
Adoption of Rule of Law In India and Supreme Court
Judgments21:
Fundamental rights enshrined in part Ill of the constitution is a
restriction on the law making power of the Indian Parliament. It
includes freedom of speech, expression. association. movement.
Residence, property, profession and personal liberty. In its
broader sense the Constitution itself prescribes the basic legal
system of the country. To guarantee and promote fundamental
rights and freedoms of the citizens and the respect for the
principles of the democratic State based on rule of law. The
popular habeas corpus case, ADM Jabalpur v. Shivakant
Shukla is one of the most important cases when it comes to rule
of law. In this case, the question before the court was 'whether
there was any rule of law in India apart from Article 21'. This was
in context of suspension of enforcement of Articles 14, 21 and
22 during the proclamation of an emergency. The answer of the
majority of the bench was in negative for the question of law.
 11

However Justice H.R. Khanna dissented from the majority

opinion and observed that "Even in absence of Article 21 in the
Constitution, the state has got no power to deprive a person of
his life and liberty without the authority of law. Without such
sanctity of life and liberty, the distinction between a lawless
society and one governed by laws would cease to have any
meaning... "
Applied to the powers of the government, this requires that every
government authority which does some act which would
otherwise be a wrong (such as taking a man's land), or which
infringes a man's liberty (as by refusing him planning permission),
must be able to justify its action as authorized by law
-and in nearly every case this will mean authorized directly or
indirectly by Act of Parliament.
The secondary meaning of rule of law is that the government
should be conducted within a framework of recognized rules and
principles which restrict discretionary powers. The Supreme
Court observed in Som Raj v. State of Haryana that the
absence of arbitrary power is the primary postulate of Rule of
Law upon which the whole constitutional edifice is dependent.
Discretion being exercised without any rule is a concept which is
antithesis of the concept.
The third meaning of rule of law highlights the independence of
the judiciary and the supremacy of courts. It is rightly reiterated
by the Supreme Court in the case Union of India v. Raghubir
Singh that it is not a matter of doubt that a considerable degree
that governs the lives of the people and regulates the State
functions flows from the decision of the superior courts.
Although, complete absence of discretionary powers, or absence
of inequality are not possible in this administrative age, yet the
concept of rule of law has been developed and is prevalent in
common law countries such as India. The rule of law has
provided a sort of touchstone to judge and test the administrative
law prevailing in the country at a given time. Rule of law,
traditionally denotes the absence of arbitrary powers, and hence
one can denounce the increase of arbitrary or discretionary
 12

powers of the administration and advocate controlling it through

procedures and other means. Rule of law for that matter is also
associated with supremacy of courts. Therefore, in the ultimate
analysis, courts should have the power to control the
administrative action and any overt diminution of that power is to
be criticized. The principle implicit in the rule of law that the
executive must act under the law and not by its own fiat is still a
cardinal principle of the common law system, which is being
followed by India.
In Chief settlement Commissioner; Punjab v. Om Prakash, it
was observed by the supreme court that, "In our constitutional
system, the central and most characteristic feature is the concept
of rule of law which means, in the present context, the authority of
law courts to test all administrative action by the standard of
legality. The administrative or executive action that does not meet
the standard will be set aside if the aggrieved person brings the
matter into notice."
In India, the meaning of rule of law has been much expanded. It is
regarded as a part of the basic structure of the Constitution and,
therefore, it cannot be abrogated or destroyed even by Parliament.
The ideals of constitution; liberty, equality and fraternity have been
enshrined in the preamble. Constitution makes the supreme law of
the land and every law enacted should be in conformity to it. Any
violation makes the law ultra vires. In Kesavanda Bharti vs. State
of Kerala (1973) - The Supreme Court enunciated the rule of law
as one of the most important aspects of the doctrine of basic
structure

In Menaka Gandhi vs. Union of India - The Supreme Court

declared that Article 14 strikes against arbitrariness. In Indira
Gandhi Nehru vs. Raj Narahr - Article 329-A was inserted in the
Constitution under 39th amendment, which provided certain
immunities to the election of office of Prime Minister from judicial
review. The Supreme Court declared Article 329-A as invalid since
it abridges the basic structure of the Constitution.
In the case of Gadakh Yashwantrao Kankarrao v. Balasaheb
 13

Vikhe Patil the ratio laid down was "If the rule of law has to be
preserved as the essence of the democracy of which purity of
elections is a necessary concomitant, it is the duty of the courts
to appreciate the evidence and construe the law in a manner
which would subserve this higher purpose and not even
imperceptibly facilitate acceptance, much less affirmance, of
the falling electoral standards. For democracy to survive, rule
of law must. prevail, and it is necessary that the best available
men should be chosen as people's representatives for proper
governance of the country. This can be best achieved through
men of high moral and ethical values who win the elections on
a positive vote obtained on their own merit and not by the
negative vote of process of elimination based on comparative
demerits of the candidates."
In the case of Sukhdev v. Bhagatram Mathew J. declared that
"Whatever be the concept of the rule of law, whether it be the
meaning given by Dicey in his "The Law of the Constitution" or
the definition given by Hayek in his "Road to Serfdom" and
"Constitution of liberty" or the exposition set-forth by Harry
Jones in his "The Rule of Law and the Welfare State", there
is, as pointed out by Mathew, J., in his article on "The Welfare
State, Rule of Law and Natural Justice" in "Democracy, Equality
and Freedom," "substantial agreement is in juristic thought that
the great purpose of the rule of law notion is the protection of
the individual against arbitrary exercise of power, wherever it
is found". It is indeed unthinkable that in a democracy
governed by the rule of law the executive Government or any
of its officers should possess arbitrary power over the interests
of the individual. Every action of the executive Government
must be informed with reason and should be free from
arbitrariness. That is· the very essence of the rule of law and
its bare minimal requirement. And to the application of this
principle it
makes not difference whether the exercise of the power involves
affection of some right or denial of some privilege."

In Secretary, State of Karnataka and Ors. v. Umadevi (3) and

 14

Ors a Constitution Bench of this Court has laid down the law in
the following terms:'Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from passing
an order upholding a violation of Article
14 or in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the
Constitution."

Yet another case is of Yusuf Khan v. Manohar Joshi in which

the SC laid down the proposition that it is the duty of the state to
preserve and protect the law and the constitution and that it
cannot permit any violent act which may negate the rule of law.

Hence, it is quite evident that the concept of rule of law is gaining

importance and attention and judicial efforts are made to make it
stronger.
 15

SEPARATION OF POWERS

Administrative Law in Britain, the doctrine of 'separation of

powers' had an intimate impact on the development of
Administrative Law in the U.S.A." Davis22 also stated : "Probably,
the principle doctrinal barrier to the development of the
administrative process has been the theory of separation of
powers."
Meaning: There are three main organs of the government in the
State-(i) the legislature (ii) the executive and (iii) the judiciary.
According to the theory of separation of powers, these three
powers and functions of the Government must, in a free
democracy, always be kept separate and be exercised by the
separate organs of the Government. The theory of separation of
powers signifies three formulations of structural classification of
governmental powers-
1. The same person should not form part of more than one of the
three organs of the government. For e.g. Ministry should not sit in
parliament.
2. One organ of the government should not interfere with any other
organ of the government
3. One organ of the government should not exercise the functions
assigned to any other organ.
Separation of Powers in England: In England, the first
formulation of the theory of separation of power is negated by the
concept of 'parliamentary executive' that the same person should
not form part of more than one of the three organs of the
government For instance, the king, though an executive head, is
also an integral part of the legislature and all his ministers are
also members of one or other of the house of parliament. As
regards the second formulation, it is clear that the House of
Commons ultimately controls the executive. The judiciary is
independent but the judges of the superior courts can be
removed on an address from both House of Parliament. As to the
 16

exercise by one organ of the functions of the other organs, no

separation exists in England.
Separation of Powers in U.S.A.: In USA "separation of powers"
is the foundation stone of the constitution of America. Article 1
section 1 vests all legislative powers in the congress. Article 11
section 1 vests all executive powers in the President of the United
States. Article 111 section 1 vests all the judicial powers in the
Supreme Court. The constitution of America has not given
overriding power of judicial review to the Supreme Court.
Supreme Court has no power to decide political questions, so
that the court may not interfere with the exercise of power of
executive organ of the government. However, American
constitutional development has shown that in the face of the
complexity of modern governments, strict structural classification
of the powers is not possible. The President has veto power
through which he can interfere with the exercise of powers by the
Congress. He can interfere with the functioning of the Supreme
Court through the exercise of his power to appoint judges.
Congress also interferes with the power of President through vote
on budget, approval of appointments by the senates and
ratification of treaty. Congress also interferes with the exercise of
powers by the courts by passing procedural laws, creating
special courts and by appointing judges. In its turn, the judiciary
interferes with the powers of the congress and the President
through the exercise of its power of judicial review.
Separation of Powers in India: In India, the doctrine of
separation of powers has not been accorded a constitutional
states. Apart from the directive principles laid down in Article 50
which enjoins separation of judiciary from the executive, the
constitutional scheme does not embody any formalistic and
dogmatic division powers.23
The Supreme Court in Ram Jawaya Kapur Vs State of Punjab24,
held:
Indian Constitution has not indeed recognised the doctrine of
separation of powers in its absolute rigidity but the functions of the
different parts or branches of the Government have been
 17

sufficiently differentiated and consequently it can very well be said

that our Constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong to
another.

In Indira Nehru Gandhi Vs Raj Narain, Ray25, C.J. also observed

that in the Indian Constitution there is separation of powers in a
broad sense only.
In India, not only is there a functional overlapping but there is
personnel overlapping also. The constitution has invested the
constitutional courts with the power to invalidate laws made by
Parliament and State legislature transgressing constitutional
limitations. Legislature can re-enact the law with certain
amendments in that law. This new law or the amended law so
made can be challenged on other grounds again but not on the
ground that it sects to in effectuate or circumvent the decision of
the court. This is what is meant by 'check and balance' inherent in
a system of government incorporating separation of powers.26
From the above discussion it becomes clear that the doctrine in
its classical sense which is structural rather than functional cannot
be literally applied to any modern government because neither
the powers of the government can be kept in watertight
compartments nor can any government run on strict separation of
powers.
In Indira Nehru Gandhi v. Raj Narain,27 Chandrachud J. also
observed that the " political usefulness of
the doctrine of separation of powers is now widely recognised."
No constitution can survive without a conscious adherence to its
fine checks and balances. The principle of separation of powers
is a principle of restraint which has in it the precept, innate in
the prudence of self preservation that
discretion is the better part of valour."28
In conclusion, "Doctrine of separation of powers" in today's
context of liberalisation privatisation and globalisation cannot be
interpreted to mean either 'separation of powers' or 'check and
 18

balance' or 'principle of restraint' but 'community powers'

exercised in the spirit of cooperation by various organs of the
State in the best interest of the people.

IMPORTANT QUESTIONS

Q.1. "The Rule of law permeates the entire fabric of the

Indian Constitution and indeed forms part of its basic
feature". Comment.
Q.2. Discuss the contents and importance of the rule of law
in the study of administrative law.
Q.3. Briefly explain the meaning of the "doctrine of
separation of powers.
Q.4. Define Administrative Law and discuss its scope and
utility. Are there any disadvantages of Law which may
have originated during its growth?
Q.5. The basis of administrative law may be traced in the
constitution of India also like the doctrine of separation
of powers, judicial review, government's vicarious
liability and protection provided to government servants
etc. Discuss and explain any of sthese doctrines.
Q.6. Whether the 'separation of powers' has been adopted
and incorporated in the constitution of India? If so, to
what extent? Illustrate with the specific provisions.
Q.7. Define Administrate law. Discuss its nature and scope

DELEGATED LEGISLATIONS
Legislature is the law-making organ of any State. In India, the
combined effect of Articles 107 to 111 and 196 to 201 is that the
law-making power can be exercised for the Union by Parliament
and for the States by the respective State legislatures. But in the
 19

twentieth century these legislative bodies cannot give that quality

and quantity of laws which are required for the efficient
functioning of a modern intensive form of government. Therefore,
the delegation of law-making power to the administration is a
compulsive necessity. It is known as Quasi-legislative Action or
Delegated Legislation.
Definition : The term delegated legislation is difficult to define.
However, even if defined, it is equally difficult to determine with
certainty the scope of such delegated legislation. Mukherjee, J.
rightly observes, "Delegated Legislation is an expression which
covers a multitude of confusion. It is an excuse for the legislators,
a shield for the administrators and a provocation to the
constitutional jurists...
As stated in Halsbury's Law of England "When an instrument of
a legislative nature is made by an authority in exercise of power
delegated or conferred by the legislature it is called "Subordinate
legislation."
Generally, 'delegated legislation' means the law made by the
executive under the powers delegated to it by the legislature. A
simple definition of the term, 'delegated legislation' may be given
as follows:
"When the function of legislation is entrusted to organs other than
the legislature itself, the legislation made by such organs is called
delegated legislation".
NECESSITY OF DELEGATED LEGISLATION
The exigencies of the modern state especially social and
economic reforms have given rise to delegated legislation on a
large scale, so much so that a reasonable fear arises among the
people that they are being ruled by the bureaucracy. Many
factors are resonsible for the rapid growth of delegated legislation
in every modern democratic state. The traditional theory of
laissez faire has been given by every state and the old police
state has now become a wellfare state. Because of this redical
change in the philosophy as to the role played by the state its
functions have increased, consequently delegated legislation has
 20

become essential and inevitable.

In the opinion of the Committee on Ministers Powers, the
factors responsible for the growth of delegated legislation are :
1. Pressure upon Parliamentary Time : The legislative activity
of the state has increased in response to the increase in its
functions and responsibilities. It therefore formulates the
legislative policy and gives power to the executive to make
subordinate legislation for the purpose of implementing the
policy. The Committee on Ministers powers has rightly
observed - the truth is, that if parliament were not willing to
delegate law-making power, Parliament would be unable to
pass the kind and quality of legislation which modern public
opinion requires.
2. Filling Details of Legislation : The legislature has to make a
variety of laws. Sometimes, the subject-matter on which
legislation is required is so technical in nature or local or
specialised in nature that the executive must consult the
experts. Members of Parliament may be the best politicians but
they are not experts to deal with technical matters which are
required to be handled by experts. So the legislative power may
be conferred on experts to deal with the technical problem, e.g.,
gas, atomic energy, electricity etc.
3. The Need of Flexibility : At the time of passing any legislative
enactment, it is impossible to foresee all the contingencies. A
statutory provision can not be amended except by the
amendment passed by legislature and it is a very slow
procedure. It may be necessary to make changes in the
application of a provision in the light of experience. So through
the device of delegated legislation the executive can make the
changes in the law more easily, e.g., export and import, foreign
exchange etc.
4. Experiments : The practice of delegated legislation enables the
executive to experiment. This method permits rapid utilization of
experiences and implementation of necessary changes in the
application of provisions in such experiences.
 21

5. Emergency : In time of emergency, quick action is required to

be taken. Delegated legislation is the only convenient, indeed
the only possible remedy. Therefore, in time of war and other
national emergencies, the executive is vested with special and
extremely wide powers to deal with the situation. Similarly, in
the situation of epidemics, floods, inflation etc, delegated
legislation plays an important role to solve the problem in
practical sense.
6. Complexity of Modern Administration : The complexity of
modern administration and the expansion of the functions of the
State to the economic and social sphere have rendered it
necessary to resort to new forms of legislation and to give wide
powers to various authorities on suitable occasions. By
resorting to traditional legislative process, the entire object may
be frustrated by vested interests and the goal of control and
regulation over private trade and business may not be achieved
at all.
 22

CONSTITUTIONALITY OF DELEGATED LEGISLATION

The term 'constitutionality of administrative rule-making or
delegated legislation' means the permissible limits of the
constitution of any country within which the legislature, which as
the sole repository of law making power, can validly delegate
rule-making power to other administrative agencies. The new role
of State in order to facilitate the concept of welfare State can be
fulfilled only through the use of greater power in the hands of
government which is most suited to carry out the social and
economic tasks before the country. The task of enhancing the
power of the government to enable it to deal with the problems of
social and economic reconstruction has been accomplished
through the technique of delegation of legislative power to it. This
delegation of legislative power raises a natural question of its
constitutionality.

The Legislature is quite competent to delegate to other

authorities. To frame the rules to carry out the law made by it. In
the case of D. S. Gerewal v. The State of Punjab , K.N.
Wanchoo, it was observed that there is nothing in the words of
Article 312 which takes away the usual power of delegation,
which ordinarily resides in the legislature.
The words "Parliament may by law provide" in Article 312 should
not be read to mean that there is no scope for delegation in law
made under Article312…." In the England, the parliament being
supreme can delegated any amount of powers because there is
no restriction. On the other hand in America, like India, the
Congress does not possess uncontrolled and unlimited powers of
delegation. In Panama Refining Co. v. Rayans, the supreme
court of the United States had held.

Position in the USA: Two phenomena operate in the USA

namely—1. Separation of Power and 2. “Delegatus non potest
delegare”.
Position in England: In England, the Parliament is Supreme ,
unhampered by any constitutional limitations with wide legislative
 23

powers on the executive. Parliament being supreme and it power

to legislate being unlimited, there is nothing to prevent Parliament
from delegating its legislative power to the executive officers or
other subordinate bodies. In England, the practice of delegating
legislative power has certainly been facilitated by the close
fusion of the legislative and executive power resulting from the
development the cabinet system of government in England.

i) Pre-constitutional Position : Queen v. Burah is considered

to be leading authority on the subject. Privy Council reversed
the decision of the Calcutta High Court. It held that the Indian
Legislature was not an agent or delegate of the Imperial
parliament. It was only a case of conditional legislation.
The doctrine of conditional legislation was again applied by
the Privy Council in Emperor v. Benwari Lal when it
upheld the constitutionality of the ordinance passed by the
Governor General for the establishment of the special
courts and delegated power to the provincial governments
to declare this law applicable in their provinces at any time
they deem fit.
Therefore, during the 'period of privy council, the question of
permissible limits of delegated legislation remained uncertain.
Afterwards, the question of constitutionality came before
Fedral Court in Jatindra Nath Gupta v. Province of Bihar. In
this case Federal court held that the power of extension with
modifications is unconstitutional delegation of legislative
powers because it is an essential legislative function. Here, for
the first time, it was laid down that in India the legislative
powers cannot be delegated. However, Fazal Ali, J. in his
dissenting opinion held that such delegated power is
constitutional because according to him it merely amounted to
a continuation of the Act.
ii) Post Constitutional Position : The decision in Jatindra Nath
case created confusion about the limits of the delegation of
legislative powers. To clarify such doubts, the President of
India sought the opinion of the court under Article 143 of
 24

constitution on the constitutionality of the three Acts covering

three different periods, in the first leading case In Re Delhi
Laws Act, 1912 after the Constitution of India came into force
:
1) Section 7 of the Delhi Laws act, 1912
2) Section 2 of the Ajmer-Mewar (Extension of Laws) Act, 1947
3) Section 2 of the part 'C' states (Laws) Act, 1950
Seven Judges heard the case and propounded seven
separate judgements. The Supreme Court took the via media
and held :
1. Indian parliament was never considered an agent of anybody,
and therefore the doctrine of delegatus non potest delegare
has no application.
2. Doctrine of separation of power is not a part of the Indian
Constitution.
3. Parliament cannot abdicate or efface itself by creating a
parallel legislative body.
4. Power of delegation is ancillary to the power of legislation.

5. The limitation upon delegation of power is that the

legislative cannot part with its essential legislative power
that has been expressly vested in it by the constitution.
6. Power to apeal is legislative power and it can not be
delegated.
On the basis of this reasoning, the Supreme Court came to the
conclusion that all the Acts are valid except that part of section
2 of the part C, states (Laws) Act 1950 which delegated power
of repeal and modification of legislative policy as it amount to
excessive delegation of legislation powers.
The Supreme Courts has now made it abundantly clear that
the power of delegation is a constituent element of legislative
power as a whole under Article 245 of the constitution and
 25

other relative articles.

EXCESSIVE DELEGATION
Restraints on Delegation : As laid down in Delhi Laws Act
case restraints on delegation is that the legislature should not
delegate its essential legislative function which means laying
of policy and enacting it into a binding rule of conduct. Thus, in
this case, the doctrine of excessive delegation was
propounded.
Permissible Limits : In India, the court follows the doctrine of
excessive delegation. It means Indian legislature cannot
delegate unlimited legislative power to an administrative
authority. The advantage of the doctrine is that the courts can
declare too broad delegation of legislative power as excessive
and hence invalid. It is now well settled by the majority
judgment in In Re Delhi Law Act, 1912 that there is a limit
beyond which delegation may not go. As regards the
determination of the limit of delegation, there are two views :
1. Legislature can delegate legislative power provided that it
lays down the policy. Court has determined the validity of
delegation of legislative power on basis of these principles.
2. Legislature can delegate legislative power provided this does
not amount to abdication of essential legislative function.
In most of cases the validity of the delegated power has been
examined on the basis of above two views.
Legislative Policy to be found in Essential Legislative
Functions : In a number of cases the Supreme Court has
decided that the legislature must declare the policy of law, lay
down legal principles and provide standards for the guidance
of the delegate to promulgate delegated legislation, otherwise
the law will be bad on account of "excessive delegation".
In Raj Narain Singh v. Patna Administration Committee,
the Supreme Court held the delegation invalid on the ground
that the power to pick out a section for application to another
area amounts to delegating the power to change the policy of
 26

the Act which is an essential legislative power and hence

cannot be delegated.
In Hamdard Dawakhana v. Union of India, facts were that
Parliament passed the Drug and Magic Remedies
{Objectionable Advertisement)Act, 1954 to control the
advertisement of certain drugs. Section 3 laid down a list of
diseases for which advertisement was prohibited and
authorised Central Government to include other diseases in
the list. The court held sections bad as nowhere has the
legislature laid down any policy for the guidance of
Government in the matter of selection of disease. After the
Delhi Laws Act, this is the first case in which a Central Act was
held ultravires on the ground of excessive delegation.

Mathew J. reiterated his view in M.K. Papiah V. Excise

Commissioner. Thus, the decisions of the court in Gwalior
Rayon and Papiah case took two different and conflicting views
on the question of constitutionality of delegated legislation. Added
to this the Supreme Court's decision in Registrar of
Cooperative Societies
Vs. K. Kunjambu though upholds the 'policy and guideline' test
yet creates an impression that this test is tentative and can be
reopened.
Whatever may be the test to determine the constitutionality of
delegated legislation, the fact remains that due to the
compulsions of modern administration, courts have allowed
extensive delegation of legislative powers, especially in the area
of tax and welfare legislation.
The law on the constitutionality of delegation of legislative
functions was summed up by the Apex Court in Mahe Beach
Trading Co. Vs. U.T. of Pondicherry. The Court held "if there
is abdication of legislative power or there is excessive delegation
or if there is total surrender by the legislature of its legislative
functions to another body then that is not permissible."
Functions which can be delegated i.e. Permissible
Delegation
 27

1. Commencement of an Act depends upon the notification

published by the State Government in the official Gazette.
Several statutes contain an 'appointed day' clause, which
empowers the Government to appoint a day for the
enforcement of the Act. The Act comes into force when the
notification is published in the official Gazette. Such a
provision is valid for, as Sir Cecil Carr
remarks "the legislature provides the gun and prescribes the
target, but leaves to executive the task of pressing the trigger''.
2. The function of supplying details may be delegated to the
executive for giving effect to the
policies formulated by the legislature. These functions are
ancillary to the exercise of legislative function.

3. Inclusion is permissible delegation. Sometimes legislature

passes an Act and makes it applicable, in the first
instance, to some areas or classes of persons, but
empowers the Government to extend the application of
such statute to different territories, persons or
commodities etc.,e.g., the Transfer of Property Act, 1882
was made applicable to whole of India except
certainareas, buttheGovernment was authorised to apply
the provisions of the Act to those areasalso.
4. Exclusion of any territory or commodities etc by the
Government is permissible. Some statues empower the
Government to exempt from their operation certain persons,
territories etc.
5. Some statutes authorise the Government to suspend or
relax the provisions contained in such statue.

6. Some statutes confer the power on the executive to adopt

and apply statutes existing in other
states without modification to a new area provided the
legislative policy is laid down in the statute by the competent
legislature.
 28

7. Sometimes modification in the existing statute is allowed by

the provisions of statute itself but before its application. This
is a legislative act but sometimes it is necessary to deal with
local conditions.

8. In some cases the legislature delegates to the executive the

power to take punitive actions.
According to Indian Law Institute, this practice is not
objectionable, provided two safeguards are adopted-

a. The legislature must determine the maximum punishment

which the rule-making authority may prescribe for breach
of regulation and
b. If such power is delegated to any authority other than the
State or Central Government, the exercise of the power
must be subject to the provisions sanction or subsequent
approval of the State or Central Government.
9. A delegation of power to frame rules, bye-laws, regulations
etc. is not unconstitutional, provided that the rules, bye-laws
and regulations are required to be laid before the legislature
before they come into force and provided further the
legislature has power to amend modify or repeal them.
10. Sometimes, legislature delegates the power to the
Government to modify the provisions of the existing statues
for the purpose of removing difficulties. This is because of
the fact that at the date of the enactment of a statute, it is not
possible to foresee all the difficulties which may arise in
implementing it. Such removal of difficulties provision is also
necessary when the legislature extends a law to a new area
or to an area where the socio-economic conditions are
different.
Generally, two types of 'removal of difficulties' clauses are
found in a statute, - a narrow one, which empowers the
executive to exercise the power of removal of difficulties
consistent with the provisions of the Parent Act.
 29

Another type of 'removal of difficulties' clause is very wide

and authorises the executive in the name of removal of
difficulties to modify even the parent Act or any other Act.
Usually, such a provision is for a limited period and
nicknamed as "Henry VIII Clause" to indicate the executive
autocracy.
In Sinai v. Union of India it is submitted that by using a
'removal of difficulties' clause, the Government may slightly
tinker with the Act to round off angularities and smoothen the
joints or remove minor obscurities to make it workable, but it
can not change the feature of the Act.
Functions which cannot be delegated i.e. Impermissible
Delegation
1. Essential legislative functions cannot be delegated by the
legislature to the executive. In other words, legislative policy
must be laid down by the legislature itself and by entrusting
this power to the executive, the legislature cannot create a
parallel legislature.
2. Power to repeal a law is essentially a legislative function, and
therefore, delegation of power to the executive to repeal a
law is excessive delegation and is ultravires.
3. Power to modify the Act in its important aspects is an
essential legislative function and therefore delegation of such
power is permissible to a limited extent.
4. The legislature cannot delegate the power of exemption to
the executive without laying down the norms and policy for
the guidance of the latter.
5. The legislature has plenary power of law making in India,
Parliament can pass any law prospectively subject to the
provisions of the constitution. Giving an Act retrospective
effect is essentially a leqislative function and it can not be
delegated.
6. Legislature cannot delegate the power by which the
executive can adopt the laws which may be passed in future
 30

as this is an essential legislative function.

7. The legislature cannot empower the executive by which the
jurisdiction of courts may be ousted. This is a pure legislative
function.
8. The making of a particular act into an offence and
prescribing punishment for it is an essential legislative
function and cannot be delegated.
Conditional Legislation : Hart defines conditional legislation as
a 'Statute that provides controls but specifies that they are to go
into effect only when a given administrative authority finds the
existence of conditions defined in the statute'.
In conditional legislation, legislature makes the law and leaves to
the executive to bring the Act into operation on fulfillment of
certain conditions or contingencies and for this reason the
legislation is known as conditional legislation.
Distinction between delegated Legislation and Conditional
Legislation : In conditional legislation, it is the duty of the
executive to apply the law after performing the function of fact-
finding (to inquire whether facts requiring operation of the Act
exist). On the other hand, in case of delegated legislation, it is left
to the discretion of the Government whether to exercise the
power delegated to it or not.
In Hamdard Dawakhana v. Union of India, the Supreme Court
pointed out the distinction between the two in the fallowing terms -
'The distinction between conditional legislation and delegated
legislation is that in the former the delegate's power is that of
determining when a legislative-declared rule of conduct shall
become effective and
latter involves delegation of rule-making power which
constitutionally may be exercised by the administrative agent.
SUB-DELEGATION OF LEGISLATIVE POWERS
When legislature confers legislative powers on an executive
authority and executive authority further delegates those powers
to another subordinate authority or agency, it is called 'Sub-
 31

delegation'. This process of sub-delegation may go through many

stages.
The necessity of sub-delegation is sought to be supported on the
following grounds -
i) Power delegation necessarily carries with it power of further
delegation and
ii) Sub-delegation is ancillary to delegated legislation and any
objection to the said process is likely to subvert the authority
which the legislature delegates to the executive.
Sub-delegation of legislative power can be permitted either
when such power is expressly conferred by the statute or can
be inferred by necessary implication. Where a statute
expressly authorises an executive authority to sub-delegate
its powers, it is valid to the extent of the limits prescribed by
the statute itself. In other words, 'where a power is given to do
a certain thing in a certain way, the thing must be done in that
way or not at all.
Implied power of delegation means, in the absence of express
provision for the delegation of powers in the parent Act, the
same may be inferred by necessary implication.
Griffith rightly states "If the statute is so widely phrased that
two or more tiers of sub-delegation are necessary to reduce it to
specialised rules on which action can be based, then it may be
that the courts will imply the power to make the necessary sub-
delegated legislation."
Delegatus non Potest Delegare : This maxim applies in the
field of delegated legislation and sub delegation of power is
not permissible unless that said power is conferred either
expressly or by necessary implication. The meaning of the
above maxim is that a delegate cannot further delegate.
De Smith says, 'There is strong presumption against construing
a grant of delegated legislative power
as empowering the delegate to sub-delegate the whole or any
 32

substantial part of the law-making power entrusted to it."

 33

CONTROL OVER DELEGATED LEGISLATION

Introduction: In the present context, legislative powers can

validly be delegated to the executive within the permissible
limits. At the same time, there is inherent danger of abuse of
the said power by the executive authorities. The Committee
on Ministers' Powers states, 'Though the practice of
delegated legislation is not bad, risks of abuse are incidental
to it and therefore, safeguards are required if the country is
to continue the advantages of the practice without suffering
from its inherent dangers'.
The control mechanism of administrative rule-making
comprises three components, namely, parliamentary control,
procedural control and judicial control.
PARLIAMENTARY CONTROL
As usual, law making power is vested in the legislature but if
legislative powers are delegated to the executive by the
legislature, it is not only the right of the legislature, but also
its duty, as a principal to see how its agent (Executive)
carries out the agency entrusted to it. The underlaying
objective of such control is to keep watch over the rule-
making authorities and also to provide an opportunity to
criticise them if there is abuse of power on their part.
Legislative Control may be effectively exercised by
following three modes :
a. Proceeding in Parliament : Parliament is consisted of two
houses and each house has its own rules of procedure and
such rule requires that a bill involving proposal for delegation
of legislative power "shall be accompanied by a
memorandum explaining such proposals and drawing
attention to their scope and stating also whether they are of
exceptional or normal character. A number of proceedings
are involved in exercise of control over delegation of
legislative power by the legislature :
 34

i. Debate on Delegating Bill : Members of Parliament may

discuss all matters about delegation including necessity,
extent, type of delegation and the authority to whom power is
proposed to be given.
ii. Asking Questions and Giving Notices : Any member of
the house may ask questions on any matter concerning
delegation of legislative power and, if not satisfied, can give
notice for debate as laid down under rule 59 of the procedure
and conduct of business in Lok Sabha.
iii. Resolution on Motion : Any member of the House may
move resolution on motion, if the matter relating to
delegation of legislative power is of urgent and immediate
nature and the reply given by the government is not
satisfactory.

iv. Demand for Vote on Grant: Members can discuss any

thing about delegated legislation when budget demands are
presented by a Ministry. Any member may propose to
reduce grant.
v. Directions by Speaker : The speaker may refer bills
containing provisions for delegation of legislative powers to the
committee to examine the extent of such powers sought to be
delegated.
b. Laying on Table : This process of laying on table works as a
safety-valve through which legislature exercises supervision,
check and control over the executive rule making power.
"Laying technique" brings legislature into close and constant
contact with the administration.
Types of Laying : There are several types of laying. The
Selection Committee on Delegated legislation summarised the
procedure under seven heads.
i. Laying without Further Provision for Control : The parent
Act merely provides that the rules shall be laid before
Parliament. They become operative from the date they are
laid before the Houses. This procedure serves the purpose of
 35

only informing the Parliament as to what rules and regulations

were made by the administrative authorities.
ii. Laying with Deferred Operation : The requirement of laying
is linked with postponement of rules and in this way
Parliament gets greater degree of control than in the
preceding form of laying.
iii. Laying with Immediate Effect but Subject to Annulment :
In this case, the rules come into force when laid before
Parliament, but cease to be in operation if disapproved by it
within a specified period. According to May, "this is the most
common form of Parliamentary Control" and is known as
'negative resolution procedure.
iv. Laying in Draft but Subject to Resolution that no Further
Proceedings be Taken : This is a variant of 'negative
resolution' procedure. Under this, draft of statutory rules is
required to be laid before Parliament but the parent Act
provides that the rules should not be made effective until a
particular period has expired.
v. Laying in Draft and Requiring Affirmative Resolution: This
method provides a stringent Parliamentary Supervision over
delegated legislation unlike the negative resolution procedure.
The draft rules do not become operative until an affirmative
resolution has been passed by Parliament. Members get an
opportunity to discuss and react to the rules before its final
execution by the executive authority.
vi. Laying with Operation Deferred Until Approval Given by
Affirmative Resolution : In this case, rules are actually
made but they do not come into operation until approved by
Parliament. Legally in this case, the delegated legislation
exists, although it does not come into effect whereas in the
case of 'Positive Resolution' procedure under head
(V) the legislation is required to be laid in draft. It has no legal
existence if it has not been made.
vii. Laying with Immediate Effect but Requiring Affirmative
Resolution as Condition for Continuance : This method of
 36

laying is used where prompt operation of delegation of

legislative power is required but at the same time strict
Parliamentary Supervision is also necessary. The
confirmatory resolution keeps the delegated legislation alive,
which would otherwise die. It is often applied in cases of
taxation or to rules made during emergency.
In the absence of any general law in India regulating laying
procedure, the Scrutiny Committee made the following
suggestions:
1. All the Acts of Parliament should uniformly require that rules
be laid on the Table of the House ·as soon as possible'.
2. The laying period should uniformly be 30 days from the date
of final publication of rules and
3. The rule will be subject to such modification as the House
may like to make.
Legal consequences of non-compliance with the laying
provision : In India, it depends on whether the provisions in the
enabling Act are mandatory or directory. In Narendra Kumar v.
Union of India, the Supreme Court held that the provisions of
section 3(5) of the Essential Commodities Act, 1955 which
provides that the rules framed under the Act must be laid before
both Houses of Parliament, are mandatory and therefore clause
4 of the Non-Ferrous Metals Control Under, 1958 has no effect
unless laid before Parliament.
Even if the requirement of laying is only directory and not
mandatory, the rules framed by the administrative authority
without conforming to the requirement of laying would not be
permissible if the mode of rule-making has been consciously
violated.
c. Scrutiny Committee : The function of this committee is 'to
scrutinise' and report to the respective Houses whether the
powers to make regulations, rules, sub-rules, bye-laws, etc.
conferred by the constitution or delegated by Parliament are
being properly exercised within such delegation.
 37

The Indian Committee on Subordinate Legislation has

made interalia the following recommendations and
suggestions:
i. Power of judicial review should not be taken away or
curtailed by rules.
ii. A financial levy or tax should not be imposed by rules.
iii. Language of rules should be simple and clear and not
complicated or ambiguous.
iv. Discriminatory rules should not be framed by administration.
v. Sub-delegation is allowed with safeguards.
vi. Rules should not travel beyond the rule-making power
conferred by the Parent Act.
vii. There should not be inordinate delay in making of rules by
the administration.
viii. The defects should be cured as soon as possible.
ix. The final authority of interpretation of rules should not be with
the administration.
x. Rules should contain short title, explanatory notes, reference
to earlier amendments for convenience of location, ready
reference and proper understanding.
d. Conclusion : Parliamentary control over administrative rule-
making is admittedly weak. Wade says - "One of the features
of the 20th century has been a shift of the constitutional
centre of gravity away from Parliament and towards the
executive. "

PROCEDURAL CONTROL
As parliamentary Control over delegated legislation is not
effective, procedural control mechanism has the potential
which besides providing effective vigil over delegated
legislation can guarantee effective people participation for
better social communication, acceptance and effectiveness of
 38

the rules. There is now emphasis on procedural control. It has

three components -
a) Antecedent Publicity : In the interest of the citizens, the
primary safeguard to ensure the proper exercise of power of
delegated legislation lies in the development of adequate
procedures to be followed by the administrative process in the
formulation of rules and regulations. A means of obtaining
participation in the rule-making process by unorganised
interests is through the device of antecedent publicity. In India,
there is no separate law relating to the system of antecedent
publicity. However, in certain cases the enabling statutes have
provided for antecedent publicity. Section 43 of the Co-
operative Societies Act, 1912, section 30(3) of the Chartered
Accountants Act, 1949 and Section 15 of Central Tea Board
Act, 1949 provide exampls where it is required that the rules
must first be published in draft form to give an opportunity to
the people to have their say in the rule-making.
Antecedent publicity required by Parent Act attracts the
application of section 23 of the General ClausesAct, 1897
which provides :
i) That the authority shall publish a draft of the proposed rules in
the Gazette.
ii)That the authority shall invite objections and suggestions by a
specific date.
iii)That the authority shall take into consideration any objections
or suggestions which may be received by it while finalising the
rules.
It is, however, notable that the procedural safeguard prescribed
under section 23 of the General Clauses Act, 1897 is required
only in respect of rules, regulations and bye-laws. Delegated
Legislation appearing under any other name does not come
under its coverage.
b) Publication : It is a fundamental principle of law that,
"Ignorance of law is no excuse" (lgnorantia juris non excusat)
 39

but there is also another equally established principle of law

that the public must have access to the law and they should be
given an opportunity to know the law. M.P. Jain stated- "It is
essential, therefore that adequate means are adopted to
publicize delegated legislation. So that people are not caught on
the wrong fact in ignorance of the rules applicable to them in a
given situation. The system of publication ought to be such that
delegated legislation is not only made known to the people,
but it is also easy to locate as and when necessary".
In England : By the Rules Publication Act, 1893 certain
provisions were made for the giving of notice and inviting
representations from interested public bodies. Under the
statutory Instruments
Act 1946, certain provisions were made with a view to ensure
that the public would be aware of the delegated legislation.

In Johnson v. Sargant : The impugned order was passed on

May 16, but was published on
May, 17 the court held that the order could come into operation
only on May, 17, i.e. when it was made known.

In U.S.A. : Before 1935, there was no machinery for the

publication of delegated legislation in
U.S.A. But after the Panama Case, the Federal Register Act
was passed in 1935, requiring publication of all regulations.
In India : Unlike England and America, there is no statutory
provision requiring publication of delegated legislation. Yet the
courts have treated some sort of publication of delegated
legislation as an essential requirement for its validity.
Is the Requirement of Prior Publication of Delegated
Legislation Mandatory : The requirement of publication of
delegated legislation is mandatory and the defect of the
publication of delegated legislation gives a bad impact.
In Harlal v. State of Rajasthan, the legislation in question
passed by the Council was neither published nor was it made
 40

known to the general public through any other means. Holding its
publication necessary and applying the principle of Natural
Justice, the Supreme Court observed:
The thought that a decision reached in the secret recesses of a
chamber to which the public have no access and to which even
their accredited representatives have no access and of which
they can normally know nothing, can nevertheless affect their
lives, liberty and property by mere passing of a Resolution
without anything more is abhorrent to civilized man. It shocks his
conscience. Promulgation or publication of some reasonable sort
is essential.
In Narendra Kumar v. Union of India, Section 3 of the Essential
Commodities Act, 1955 required all the rules to be made under
the Act to be notified in the official Gazette. The principles
applied by the licensing authority for issuing permit for the
acquisition of non-ferrous metals were not notified. The Supreme
Court held the rules ineffective.
Mode of Publication : A question may also arise about the
mode, manner and method of publication. As a rule a distinction
must be drawn between the publication and method, mode and
manner of the publication. Even if the publication requirement is
held to be directory and strict compliance thereof may not be
insisted upon.
The question of mode of publication of delegated legislation
was considered by the Supreme Court in State of
Maharastra v. M.H. George. In this case Ayyanger, J.
formulated guidelines regarding the mode of publication of
delegated legislation thus-
i) Where there is statutory requirement as to the mode or form of
publication and they are such that in the circumstances, the court
holds to be mandatory, a failure to comply with those
requirements might result in their being no effective order, and
the contravention of which could be the subject of prosecution.
ii) Where there is no statutory requirement, it is necessary that it
should be published in the usual form i.e. by publication within
 41

the country as generally adopted to notify all the persons of the

making of rules and
iii) In India, publication in the official Gazette, viz, the Gazette of
India is the ordinary method of bringing a rule or subordinate
legislation to the notice of persons concerned.
Publication as a Corollary of Natural Justice : Publication of
delegated legislation has been taken by the courts as a corollary
of natural justice. Courts have treated publication of delegated
legislation as an essential requirement for its validity.
Effect of Delegated Legislation from the Date of Publication :
Unless the rule making authority specifies the date on which the
rules shall come into force, the rule generally takes effect on the
date of publication. Once the delegated legislation is
promulgated or published, It takes effect from the date of such
promulgation or publication.
Defect in Publication : In some statutes a provision is made that
no act done or proceeding taken under the Act shall be called in
question merely on the ground of any defect or irregularity in
such act or proceeding, not affecting the merits of the case.
Relying on such provisions, the Apex Court has held that failure
of proper publication does not invalidate the act.
But, it is submitted that the necessity and need of the
publication of subordinate or delegated legislation cannot be
underestimated.
In Srinivasan v. State of Karnataka, Chinnappa Reddy J.
submitted that, "where the Parent Act or statute prescribes the
mode of publication" or promulgation that mode must be
followed. Where the parent statute is silent, but the subordinate
legislation itself prescribes the manner of publication, such a
mode of publication may be sufficient, if reasonable.
c) Consultation : The term 'consult' implies a conference of two or
more persons or an impact of two or more minds in respect of a
topic in order to enable them to evolve a correct or, at least
satisfactory solution of a problem. It is process which requires
meeting of minds between the parties to consultation on material
 42

facts to come to a right conclusion.

Object of Consultation : An important measure to check and
control the exercise of legislative power by the executive is the
technique of consultation through which affected interests may
participate in the rule making process. This modus operandi is
regarded as a valuable safeguard against misuse of legislative
power by the executive authorities. The Administration is not
always the repository of ultimate wisdom. It learns from the
suggestions made by outsiders and often benefits from the
advice.
Nature and Scope: Consultation does not mean consent, it
postulates full and effective deliberation, exchange of mutual
viewpoints, meeting of minds and exchange of relative merits.
Even when consultation is not a legal requirement, such a step
generates greater confidence of the persons who may be
affected by an action that may be taken by the authority.
In England, though there is no statutory provision requiring
consultation of affected interests before the making of sub-
ordinate legislation, it is considered mandatory.
According to Griffith, such consultations are of two types -
i) Ordinary Consultation Divided : Into 2 categories -
a. Individual Objections: They are by statutory provisions, e.g.,
factory laws. The proposed regulations are required to be
published, objections are invited and opportunity of hearing is
given to the affected persons.
b. Consultation with Specified Interests : These consultations
are with statutory advisory bodies or local authorities, e.g., Traffic
Advisory Committee.
ii) Extra Ordinary Consultation : Also divided into two categories
-
a. Preparation by Affected Interests : The power to draft
regulations is delegated to the individual or a group and the
Minister becomes a confirming or approving authority.
 43

b. Approval by Statutory Body : Some statutes provide for

submission of the draft of the regulations to a statutory body by
the Minister and the report of that body is to be laid before
Parliament.
In U.S.A., the technique of prior consultation is very much
common. In the U.S.A., the Administrative Procedure Act, 1946
make provisions for consultation requiring that interested parties
should be given an opportunity to participate in the rule making
procedure.
In India, there is no general statutory provision requiring
consultation with the affected interests in the making of delegated
legislation. But some statutes specifically provide for consultation
which fall under the following heads :
1. Official Consultation : The rule making power is delegated to a
stipulation that it is to be exercised in consultation with a named
official authority or agency.
2. Consultation with Statutory Bodies : The rule making power is
conferred on the central Government which can be exercised
after consulting the Boards concerned.
3. Consultation with Advisory Bodies : Here advisory bodies are
constituted to assist the central government or other subordinate
authorities in framing rules.
4. Draft Rules by Affected Interests : The power to form rules is
directly conferred on the affected interest. Ultimately, the draft
rules may be approved by the central Government after hearing
affected interests.
Effect of the Failure to Consult : In England the position
requiring consultation has generally been regarded as
mandatory.
In India, the provisions regarding consultation were held to be
mandatory in some cases and in some cases it was directory.
As in Ibrahim v. Regional Transport Authority, consultation
with the municipality was required to be made by the Transport
Authority before certain routes for public buses were fixed. The
 44

Supreme Court held it to be merely directory.

On the other hand in Banwarilal v. State of Bihar the Supreme
Court held that the provision under section 59 of the Mines Act
requiring consultation with Mining Boards by the Central
Government before framing regulations was mandatory.
In Union of India v. S.H. Sheth in a different context while
considering the legality of an order of transfer of High Court
judges under article 222 of constitution of India, the Supreme
Court has elaborately discussed the requirement of consultation.
Wad J. states, "Consultation of interest infuses law-making
process with democratic forms, particularly in what is called
Bureaucratic legislation."
M.P. Jain rightly observes: "A consultative process can be
salutary safeguard against improper use of power of delegated
legislation as it infuses democratic norms in bureaucratic
legislation."
JUDICIAL CONTROL
It is for a court to hold a fair, generous and liberal construction of
an impugned statute whether the legislature exceeded such
limits. It is the duty of the court to strike down without any
hesitation any blanket power conferred on the executive by the
legislature.
In the control mechanism, judicial control has emerged as the
most outstanding controlling measure. It is exercised by applying
two tests:

i) Substantive Ultra Vires

ii) Procedural Ultra vires.
Ultra vires means beyond powers. When a subordinate
legislation goes beyond t e s ope _oaf uthority conferred on the
delegate to enact, it is known as substantive ultra vires. An act
which 1s done 1n excess
of power is ultra vires.
 45

Whena subordinate legislation is enacted without complying with

the procedural requirements prescribed by the Parent Act or by
the general law, it is known as procedural ultra vires.
Judicial control over delegated legislation is exercised by
applying the doctrine of ultravires in a number of
circumstances.
1. Where Parent Act is Ultra Vires the Constitution : The
constitution prescribes the limits within which the legislature can
act. If the parent Act or statute is ultravires the constitution and is
bad for that reason, delegated legislation is also necessarily bad
and therefore can be challenged. When the Parent Act is
challenged on the ground of unconstitutionality, the nature and
character
of the statute is required to be ascertained.
For that purpose, courts have evolved the doctrine of 'Pith and
Substance' or true nature and character of the statute.
The Parent Act is declared ultravires the constitution if it
violates the following limitations-
i) Express Constitutional Limits : The legislative powers of the
union and the state are expressly distributed in Article 246 of
constitution of India. If legislature encroaches upon the exclusive
sphere of the other as demarcated in the 3 lists, such legislation
will be ultra vires.
In such situation, the rule of pith and substance has to be applied
to determine the competence of the legislature. Each general
word should be held to extend to all ancillary or subsidiary
matters which can fairly and reasonable be comprehended in it.
ii) Implied Constitutional Limits : These limits are those which
where enunciated in Delhi Laws Act case viz, laying down policy
and enacting the policy into a binding rule of conduct. Legislation
cannot delegate essential legislative functions to any other
agency and if it is so delegated the Parent Act will be ultra vires
the constitution.
iii) Constitutional Rights : No legislature has competence to pass
a law violative of the provisions of commerce clause, right to
 46

property under Article 300-A or right to life and personal liberty

under Article 21. There is another ground on which the validity of
Parent Act may be challenged i.e., although the statute is well
within the legislative compliance, yet violates the provisions of
part Ill of the constitution by imposing what may be called an
unreasonable restriction on the enjoyment of fundamental rights.
2. Where Delegated Legislation is Inconsistent with Parent Act
: The validity of delegated legislation can be chall_enged on the
ground that it is ultravires the Parent Act. Delegated legislation
can be held valid only if it conforms exactly to the power granted.
Rules made by the subordinate authority are always open to
challenge on the ground that it is unauthorised. The validity of
delegated legislation is a matter if vires, that is, whether or not
the power has been exceeded or otherwise wrongfully exercised
or is inconsistent with the Parent Act or Statute.

Delegated Legislation in excess of the power

conferred by the Parent Act
If the subordinate authority keeps within the powers delegated,
the delegated legislation is upheld valid but if does not, the court
will certainly quash it.
In Chandra Bali v. R certain rules framed under the Northern
Indian Ferries Act authorised the making of rules for the purpose
of maintaining order ensuring safety of passengers and property.
However, the delegates made rules forbidding the establishment
of private ferries within the distance of two miles from the
boundaries of another ferry. The court held the rules ultra vires
as they were outside the scope of delegated power.
In Major Radha Krishan v. Union of India and others the
Supreme Court has held that an administrative action taken in
exercise of powers under a rule cannot override the provisions of
a statute under which the rule was made. In this case an
administrative action which was barred under the provision of the
statute was taken under a rule made there under getting over the
statutory provision. The court held the action to be null and void.
 47

The question whether a particular piece of delegated legislation

is in excess of the limits conferred on the delegates has to be
determined with reference to the specific provisions contained in
the relevant statute conferring the power to make the rule,
regulations etc and the object and purpose of the Act can be
gathered from the various provisions of the enactment.
i) Delegated Legislation in Conflict with the Parent Act : The
validity of delegated legislation can be challenged on the ground
that it is in conflict with any of the provisions of Parent Statute.
In White v. Morley, Channel L.J. observed, "A bye-law is not
bad because it deals with something that is not dealt with by the
general law. But it must not alter the general law by making that
lawful which the general law makes unlawful; or that unlawful
which the general law makes lawful.
Similarly, Krishna Iyer J. says, "A law has to be adjudged for its
constitutionality by the generality of cases it covers, not by the
freaks and exceptions, it martyrs".
In Supreme Court Employees' Welfare Association v. Union
of India, the Supreme Court has held that, "the validity of the
subordinate legislation can be challenged on such grounds as
any other legislative acts can be challenged."
After referring to a number of cases, the court concluded, "Where
the validity of subordinate legislation is in question, the court has
to consider the nature, objects and the scheme of the instrument
as a whole and on the basis of that examination, it has to
consider what exactly was the area over which and the purpose
for which, power has been delegated by the governing law.
ii) Delegated Legislation in Conflict with the Prescribed
Procedure of the Parent Statute : If Parent statute prescribes
procedure which must be followed by the administrative body
while exercising law-making power under it and if the procedure
is not followed, the delegated legislation may be declared bad. In
considering the question of validity of delegated legislation on the
ground of procedure, the court looks to the intent.
48
 49

iii) Malafide Bad Faith : In England, it is well settled that an Act

passed by the competent legislature cannot be questioned in
the court on the ground that same was passed malafidely.
Whenever the legislature confers any legislative power on any
administrative authority, the said power must be exercised in
good faith and on the proof of bad faith, the court can hold the
exercise of power ultravires.
In India, the courts may consider the malafide exercise of
power by the statutory authority. It may be submitted that not
only a delegated legislation but a statute passed by competent
legislature and even a Constitutional Amendment can be
challenged as being malafide.
iv) Unreasonableness : In England, it is well settled rule that the
bye-laws made by corporations, boroughs and other local
bodies may be declared as ultravires. As de Smith observes,
"there is no reason or principle why a manifestly unreasonable
statutory instrument should not be held to be ultravires on that
ground alone..."

In a leading case on unreasonableness of byelaws is

Kruse v. Johnson, deciding the case, Lord Russel C.J.,
propounded the test of unreasonableness of delegated
legislation as "Parliament never intended to give authority
to make such rules, they are unreasonable and ultravires.
But at the same time it should not be forgotten that such bye
laws must be 'benevolently construed' and they ought to be
supported if possible.
In India, the principle is same as accepted in England. In
India, the doctrine of unreasonableness of delegated
legislation has been based on a firm ground viz, Article 14 of
the constitution. According to the interpretation of Supreme
Court, Article 14 which guarantees equality before law can
now be used to invalidate any law and action which is arbitrary
or unreasonable. In a number of cases the Supreme Court
has established that Article 14 contains the principle of
 50

reasonableness. It has been held that "the concept of

reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is golden thread which runs through
the whole of fabric of the constitution. Accordingly, "every state
action whether it be the legislature or of the executive or of "an
authority under Article 12" shall be struck down by the court, if
it does not comply with requirement of reasonableness.
3. Where Deleted Legislation is unconstitutional : Sometimes
delegated legislation is consistent with the provisions of the
parent statute or delegating statute which may be
constitutional and valid, yet the delegated legislation may be
held invalid on the ground that it conflicts the provisions of the
constitution itself.
In Narendra Kumar vs Union of India, the validity of the
Non-Ferrous Metal Control order, 1958 issued under section 3
of the Essential Commodities Act 1955, was challenged on the
ground of its unconstitutionality. The petitioner has not
challenged the validity of the parent statute. The Supreme
Court held that even though a parent statute might not be
unconstitutional, an order made by the delegated legislation
can still be unconstitutional and can be challenged as violative
of the provisions of the constitution.
 51

IMPORTANT QUESTIONS
Q.1. What are the various means by which control is exercised
upon delegated legislation? Discuss.
Q.2. Explain the methods of parliamentary control.
Q.3. Define 'Subdelegation'.
Q.4. The ground of 'judicial review' of delegated legislation is-
a. Doctrine of pith and substance
b. Doctrine of delegate non potest delegare
c. Doctrine of abdication
d. Doctrine of ultra virus.
Q.5. What is meant by delegated legislation? Discuss the methods
of judicial control over delegated legislation?
 52

PRINCIPLES OF NATURAL JUSTICE

Natural justice is an important concept in the administrative law.
It is envisaged in administrative law for ensuring fair exercise of
power by administrative agencies. Fair exercise of power of
administration is possible when the power is used with in a fair
producer which inherits the rule of natural justice in the form of
fair hearing and rule against bias. Natural justice meant many
things to many writers, lawyers and system of law. It has many
colures, shades, forms and shapes. Natural justice is best
instrument to promote the interest of individual. It ensures
participation of the common man in administrative process; it
also seeks to further legitimate State purposes by ensuring the
government against committing elementary blunders in
administration due to ignorance etc.
Meaning of Natural Justice and Definition: Natural Justice is
an ethico-legal concept which is based on natural feeling of
Human Being. Rules of Natural Justice are inherent in the nature
itself and developed with the growth of civilization. It is great
principle of humanisation which informs law and procedure with
fairness and impartiality.
According to De Smith; "The term Natural Justice express the
close relationship between the common law and moral principles
and it has an impressive ancestry."
Natural justice is also known as "Substantial Justice",
"Fundamental Justice", "Universal Justice" or fair play in action. It
is a great humanizing principle intended to invest law with
fairness to prevent the miscarriage of justice. The standards of
fairness are known in legal literature as the principle of Natural
Justice. Natural Justice plays much the same part in Indian and
British law as the "due process of law" clause does in the
constitution of America.
Rule of Natural Justice has now been held to be a part of 'the
procedure established by law' provided under Article 21 of the
constitution of lndia.1
 53

In England since the decision in case of Ridge v/s Baldwin; the

courts have been insisting upon the observance of the rule of
Natural Justice in a variety of circumstances.
According to the Wade,2the rule of Natural Justice operates as
implied mandatory requirements, non observance of which
invalidates the exercise of the power. The above principle is
accepted in India also. In the case of A.K. Kraipak v. Union of
lndia,3 Hegde, Justice (Supreme Court) held that the aim of the
rules of natural justice is to secure justice or to prevent
miscarriage of justice.
Principles of Natural Justice: Natural Justice is not a fixed but
flexible concept. The standards of natural justice very with
situations. In Union of India v. P.K. Roy4 speaking for Supreme
Court, Ramaswami
J. observed:
"The extent and application of the doctrine of natural justice
cannot be imprisoned with in the strait-jacket of a rigid formula.
The application of doctrine depends upon the nature of
jurisdiction conferred on the administrative authority upon the
character of the rights of the persons affected, the scheme and
the policy of the statute and other relevant circumstances
disclosed in the particular case.
Again in R.S. Dass v. Union of lndia,5 the Supreme Court
stated:
"It is well established that the rule of natural justice are not rigid
rules, they are flexible and their applications depends upon the
setting and background of statutory provisions, nature of right
which may
be affected and the consequences which may entail its
application depends upon facts and circumstances of each
case."
The concept of Natural Justice entails two principles-

(1) Name judex in causa sua - No man shall be judge in his own
 54

cause or the deciding authority must be impartial and without

bias - Rule against Bias.
(2) Audi alterm partem - Hear the other side or both sides must be
heard or no man should be condemned unheard or that there
must be fairness on the part of deciding authority - Rule of
hearing or fair hearing
NEMO JUDEX IN SUA CAUSA (RULE AGAINST BIAS)
The first principle of Natural Justice is rule against bias. It means
the deciding authority must be impartial and neutral. This rule is
based upon the following maxims-
(1) No one should be judge in his own cause (Lord Coke)
(2) Justice should not only be done, but manifestly and undoubtly be
seen to be done (Lord Hewart)
(3) Judges, like caesar's wife should be above suspicion (Justice
Bowen)
Meaning of Bias: A predisposition to decide for or against one party
without proper regard to the true merits of the dispute is bias.6
'Bias' is a disqualifying factor in many administrative actions.
According to the dictionary meaning anything which tends or may be
regarded as tending to cause such a person to decide a case
otherwise than on evidence must be held to be biased.
Explanation of the Principle: The very first requirement of Natural
Justice is that the judges should be impartial and neutral and must be
free from bias.
It is well settled principle of law that justice should not only be done
but seen to be done. This principle is applicable not only to the
judicial proceedings but also to quasi-judicial as well as administrative
proceedings. 7
Types of Bias: Bias appears in various forms which may affect the
decision in variety of ways. The various types of bias are-
(1) Pecuniary Bias-Pecuniary interest however, small must disqualify
a judge from being a member of a tribunal.
 55

According to Griffith and Street,8 "a pecuniary interest however

slight will disqualify a judge, even though it is not proved that the
decision is in any way affected." In Bonham case, Dr. Bonham,9 a
doctor of Cambridge University was fined by the college of
physicians for practicing in the city of London without the licence of
such college.
According to Hewart, "Nothing is to be done which creates even a
suspicion that there has been an improper interference with the
course of justice."
In India, the same principle is accepted in Manak Lal v. Dr. Prem
Chand10 Gajendragadkar, J. Observed:
"It is obvious that pecuniary interest, however small it may be in a
subject matter of the proceedings, would wholly disqualify a
member from acting as a judge."
In an another case of Jeejeebhay Vs Astt. Collector of Thana 11,
Chief Justice Gajendragadkar reconstituted the Bench on the
ground that the Chief Justice, who was a member of bench was
also the member of the cooperative society for which the disputed
land had been acquired.
(2) Personal Bias-A number of circumstances may resulted into
personal bias. Here a judge may be a relative, friend or business
associate of a party. He may have some personal enmity, or
grievance or professional rivalry or any other kind of personal
interest against such party. In view of the factors there is very
likelihood that the judge may be biased towards one party or
prejudice towards other.12
Thus, in Mineral Development Ltd. v. State of Bihar,13 the
petitioners were granted mining licence for 99 years in 1947.
Petitioner and Minister were political rivals. Minister cancelled the
licence of petitioner. A criminal proceeding was also initiated by
Minister against the petitioner. It was held that there was a
personal bias against the petitioner and Minister was disqualified
from taking any action against the petitioner.
 56

In Meenglass Tea Estate v. Workmen,14 the manager conducted

an inquiry against a workman for the allegation that he had beaten
the Manager. The Supreme Court held that the inquiry was vitiated
because of personal bias.
In the leading case A.K. Kraipak v. Union of India,15 'X' was the
candidate for Indian Foreign Service selection and also the
member of the selection board too. The selection of 'X' was
challenged on the ground of Natural Justice. The Supreme Court
observed that it is against all canons of natural justice to make a
man judge in his own cause. It is true that he did not sit in the
board when his name was called as a candidate but being the
member of that board he had participate in the procedure of board
at every stage and under those circumstances it is difficult to
believe that he could be impartial.
About the importance of this case, Bhagwati J. has observed A.K.
Kraipak is a landmark in the development of administrative law and
it has contributed in large measure to strengthening of the rule of
law in this country.
Similarly in Rattan Lal V. Managing Committee,16 the Supreme
Court has held that one can not be the judge of its own cause and
the proceeding in the case were vitiated because of prejudice of
one of the number of committee.
In K. Vijay Bhaskar Reddy17 v. Government of A.P. it was held that
the plea of bias can also be
raised against the appointment of a person as a commission of
inquiry under the commission of Inquiry Act.
There was some situations in which the doctrine of necessity in
invoked to overcome the objection of bias. In the case of Election
Commission of India v. Dr. Subramaniam Swamy,18 the learned
Chief Justice said, ''we must have a clear conception of the
doctrine of absolute necessity. It is well settled rule that the law
permit certain things to be done as a matter of necessity which it
would otherwise not countenance on the touchstone of judicial
propriety.
 57

(3) Subject-matter Bias-Subject-matter bias may arise when the

judge has a general interest in the subject-matter.
According to Griffith and Street, "Only rarely will this bias invalidate
proceedings." A mere general interest in the general object to be
pursued would not disqualify a judge from deciding the matter.
There must be some direct connection with the litigation.
The proceedings were invalidated on the ground of official bias in
Gullapalli Nagestiwar Rao V.A.P.S.R.T.19 In the case the Supreme
Court quashed the decision of A.P. Government, which
nationalised road transport on the ground that the secretary of the
transport department who gave hearing was interested in the
subject matter. But the position is different in England and
America, where predisposition in favour of policy in public interest
is not held as legal bias invalidating administrative action.
(4) Departmental Bias-Departmental bias is inherent in administrative
process. If it is not checked it will negate the concept of fairness in
administrative process. In Gullapalli 1120 The minister heard the
objections and decided the case rejecting the objections in
Gullapally I. The decision of the Minister was upheld. The Supreme
Court observed that the proceedings were not vitiated as the
secretary was a part of the department whereas the minister was
only primarily responsible for the disposal of the business
pertaining to that department.
In the State of U.P. V.R.S. Sodhi,21 the question was whether
State Police should investigate into the alleged lake encounters.
Allegations were leveled against local police. According to the
Supreme Court, investigation into the matter by independent
agency was desirable. Accordingly the court directed C.B.I. to
investigate into the allegations.
(5) Policy Bias-Sometimes it happens that the minister or the official
concerned may announce beforehand the general policy which he
intends to follow. The question is whether such a statement would
disqualify him from acting as the deciding authority on the ground
that this indicates his partiality to the issue in dispute. According to
 58

Wade, Ministerial or departmental policy cannot be regarded as

disqualified bias.
Policy bias is inherent in administrative process and it cannot be
eliminated. It is useless to condemn a public officer on ground of
bias merely because he is pre-disposed in favour of some policy in
public interest.
Test of Bias: The position in case of pecuniary bias is that an
interest, however small it may be disqualifies a person from acting
as a judge. But that is not so in case of personal bias. In order to
challenge administrative action successfully on the ground of
personal bias, it is necessary to prove that there is a 'reasonable
suspicion of bias' or a 'real likelihood of bias'.
According to De Smith,22 "A real likelihood of bias means at least
substantial possibility of bias.
Reasonable apprehension in the mind of a reasonable man is
necessary to prove the real likelihood of
Bias. Such reasonable apprehension must be ba·sed on the
cogent materials.23

AUDI ALTERAM PARTEM

The audi alterm partem rule means no one should be

condemned unheard or both the sides must be heard before
passing any order or judgment. This is the second Fundamental
Principle of Natural Justice.
According to de Smith, "No proposition can be more clearly
established than that a man cannot incur the loss of liberty or
property for an offence by a judicial proceeding until he has had
a fair opportunity of answering the case against him." This the
first principle of a civilized jurisprudence and is accepted by laws
of men and God. Generally the above maxim includes two
elements-(i) Notice and (ii) Hearing.
(i) Notice-A basic principle of natural justice is that before any action
 59

is taken, the affected person must be given notice to show cause

against the proposed action and seek his explanation. The notice
must be clear, specific and un-ambiguous and the charges
should not be vague and uncertain.24
By the constitution (42nd Amendment Act 1976), if the inquiry is
under Article 311 of constitution of India is to be held, two notice
(first for charges and second for proposed punishment) should
be given to the person concerned. As a general rule, when a
notice regarding one charge or allegation has been given, the
person cannot be punished for a different charge for which no
notice or opportunity of being heard was given to him.
(ii) Hearing-The second requirement of the maxim, 'audi alteram
partem' is that the person concerned must be given an
opportunity of being heard before any adverse action is taken
against him.
In the leading case of cooper v. Wandsworth Board of works 25
the court held that the Board's power was subject to the
qualification that no man can be deprived of his property without
having an opportunity of being heard.
The Historical case of Ridge Vs Baldwin 26 has been rightly
described the 'Magna Carat' of Natural justice. In this case, the
House of Lords by a majority of 4:1 held that the power of
dismissal could not be exercised without giving a reasonable
opportunity of being heard and without observing the principles
of Natural Justice.
REASONED DECISION
Meaning and Significance: A reasoned decision means a
decision which must contains reasons in support of it. A
reasoned decision acts as a check upon the arbitrary use of
administrative power. A decision supported by reason is much
less likely to rest on caprice or careless consideration. The need
publicly to articulate the reasoning process upon which a
decision is based, requires the administrative authority to
workout all the factors which are present in a case. Lord Denning
 60

rightly says "the giving of reasons is one of the fundamental of

good administration."27
Scope and Object: There is no general rule of English law that
reasons must be given for administrative or even judicial
decisions.
In India also, till very recently it was not accepted that the
requirement to pass speaking orders is one of the principles of
natural justice. But the condition to record reasons introduces
clarity and excludes arbitrariness and satisfies the party
concerned against whom the order is passed. Today, the
government incorporates the concept of 'welfare state' in its
policies and therefore the functions of administration and
executive have increased, administrative tribunals and other
executive authorities have come to stay and they are armed
with wide discretionary powers and there are all possibilities of
abuse of power by them. To provide a safeguard against the
arbitrary exercise of powers by these authorities, the condition of
recording reason is imposed on them. The duty to give reasons
may be statutory or non-statutory. Where there is a statutory
duty, the authority is bound to give reasoned decisions in all
cases to which that provision applies. But in the absence of
statutory requirement, the courts have been emphatic to advise
judicial or quasi-judicial bodies to assign reasons in such a form
as to justify the orders being called what are described as
speaking orders.
A speaking order means order which speaks by itself. Thus
every order must contain reasons for support of it. Speaking
orders are necessary to make judicial review effective. The
affected party must know why and on what grounds an order has
been passed against him. This is a cardinal principle of natural
justice. Moreover fundamentals of procedural fairness demand
reasoned decision. A law which empowers any administrative
authority to take a decision affecting the rights of the people
without assigning any reason cannot be said laying down such a
procedure as is fair, just and reasonable and therefore it would
 61

violate Article 14 and 21.

DOCTRINE OF LEGITIMATE EXPECTATION
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
abuse of power. These principles are intended to provide
safeguard to the citizens against abuse or misuse of power by
the instrumentalities or agencies of the State. One of the latest
and important of these principles is the 'doctrine of legitimate
expectation', which is an outcome of synthesis between the
principle of administrative fairness (a component of the principles
of natural justice) and the rule of estoppel.
The doctrine of 'legitimate expectation' imposes in essence a
duty on public authority to act fairly by taking into consideration
all relevant factors relating to such legitimate expectation. The
doctrine is still at a stage of evolution but it has generated a
significant body of case law.
The doctrine of 'legitimate expectation' has been judicially
recognised by the Indian Supreme Court and this recognition has
paved the way for the development of a broader and more
flexible doctrine of fairness. Consequently, the ultimate question
should always be whether something has gone wrong to the
extent that the court's intervention is required and if so, what
form that intervention should take. In considering whether
something has gone wrong, the court has to determine whether
what has happened has resulted in real injustice. If it has, the
court must intervene in the appropriate manner, in this context.
The utility of the doctrine of legitimate expectation is manifold.
The legal position in India is more or less the same as in
England. The precise content of this doctrine, which enables an
aggrieved person to seek his remedy by judicial review, has also
been the subject matter of evolution through judicial decisions. In
Navjyoti Coop. Group Housing Society v. Union of lndia28, the
Supreme Court recognised that by reason of application of the
said doctrine, an aggrieved party would be entitled to seek
 62

judicial review, "if he could show that a decision of the public

authority affected him of some benefit or advantage which in the
past he had been permitted to enjoy and which he legitimately
expected to be permitted to continue to enjoy either until he was
given reasons for withdrawal and the opportunity to comment
such reasons".29 In this case the seniority as per the existing list
of cooperative housing society for allotment of land was altered
by subsequent decision. The previous policy was that the
seniority amongst housing societies in regard to allotment of land
was to be based on the date of registration of the society with
the Registrar. But on 20.1.1990, the policy was changed by
reckoning seniority as based upon the date of approval of the
final list by the Registrar.
This altered the existing seniority of the society for allotment of
land. The Supreme Court held that the societies were entitled to
a "legitimate expectation" that the past consistent practice in the
matter of allotment be followed even if there was no right in
private law for such allotment. The authority was not entitled to
defeat the legitimate expectation of the societies as per the
previous seniority list without some overriding reason of public
policy as to justify change in the criterion. No such overriding
public interest was shown.
The Supreme Court recognised that the doctrine, in essence,
imposes a duty on public authority to act fairly taking into
consideration all relevant factors before effecting a change in its
policies which would affect a person who had been beneficiary of
the continuing policy.
The doctrine of legitimate expectation provides that the
statements of policy or intention of the Government or its
Department in administering its affairs should be without abuse
or discretion. The policy statement could not be disregarded
unfairly or applied selectively for the reason that unfairness in the
form of unreasonableness is akin to violation of natural justice. It
means that said actions have to be in conformity of Article 14 of
the Constitution, of which non-arbitrariness is a second facet.
Public Authority cannot claim to have unfettered discretion in
 63

public law as the authority is conferred with power only to use

them for public good. Generally legitimate expectation is
essentially procedural in character as it gives assurance of fair
play in administrative action but it may in a given case be
enforced as a substantive right. But a person claiming it has to
satisfy the Court that his rights had been altered by enforcing a
right in private law or he has been deprived of some benefit or
advantage which he was having in the past and which he could
legitimately expect to be permitted to continue unless it is
withdrawn on some rational ground or he has received
assurance from the decision making Authority which is not
fulfilled, i.e., the kind of promissory estoppel.
Change of policy should not violate the substantive legitimate
expectation and if it does so it must be as the change of policy
which is necessary and such a change is not irrational or
perverse.
The next case in which the doctrine of "legitimate expectation"
was considered is the case of Food Corpn. of India v. Kamdhenu
Cattle Feed lndustries.30 There the Food Corporation of India
invited tenders for sale of stocks of damaged food grains and the
respondent's bid was the highest. All tenderers were invited for
negotiation, but the respondent did not raise his bid during
negotiation while others did. The respondent filed a writ petition
claiming that it had a legitimate expectation of acceptance of its
bid, which was the highest. The High Court allowed the writ
petition. Reversing the judgement, the Supreme Court referred
to CCSU Case31 and to Preston, in re32 and held that though the
respondent's bid was highest, still it had no right to have it
accepted. No doubt, its tender could not be arbitrarily rejected,
but if the Corporation reasonably felt that the amount offered by
the respondent was inadequate as per the factors operating in
the commercial field, the non-acceptance of bid could not be
faulted. The procedure of negotiation itself involved giving due
weight to the legitimate expectation of the highest bidder and
thus was sufficient.
 64

In Union of India v. Hindustan Development Corporation33, the

Supreme Court has pointed out that "the concept of legitimate
expectation which is latest recruit to a long list of concepts
fashioned by the courts for the review of administrative action,
must be restricted to the general legal limitations applicable
and binding (sic) the manner of the future exercise of
administrative power in a particular case".34 According to the
Supreme Court an element of 'speculation' and 'uncertainty' is
inherent in that very concept. In this case tenders were called
for supply of cast-steel bogies to the Railways. The three big
manufacturers quoted less than the smaller manufacturers.
The Railway then adopted a dual-pricing policy giving
counter-offers at a lower rate to the big manufacturers who
allegedly formed a cartel and a higher offer to others so as to
enable a healthy competition. This was challenged by three big
manufacturers complaining that they were also entitled to a
higher rate and a large number of bogies. The Supreme Court
held that the change into a dual-pricing policy was not vitiated
and was based on "rational and reasonable" grounds.
The Court noted that legitimate expectation was not the same
thing as a anticipation. It was also different from a mere wish to
desire or hope; nor was it a claim or demand based on a right. A
mere disappointment would not give rise to legal
consequences.35
At another place, in the same judgement, the position was
indicated as follows:
The legitimacy of an expectation can be inferred only if it is
founded on the sanction of law or custom or an established
procedure followed in regular and natural sequence.... Such
expectation should be justifiably legitimate and protectable.36
In M.P Oil Extraction v. State of M.P37 the Supreme Court ruled
that the doctrine of legitimate expectation has its application only
in the realm of public law and that in an "appropriate case,
constitutes a substantive and enforceable right". On the facts of
 65

the instant case, it was held that the industries, with whom the
State government had entered into agreements for supply of sal
seeds, had a legitimate expectation that in accordance with the
renewal clause and in accordance with the past practice, the
agreements would be renewed in the usual manner. The Court
also ruled that the selected industries, with which the state had
entered into agreements for supply of sal seeds at concessional
rates, needed the protection of continuing such agreements and
hence, the renewal clause ,were provided in those agreements.
The Court attached considerable importance to the need for
protection of such selected industries by upholding the validity of
the renewal clauses in those agreements, although it was
apparent in the mind of the Court that to ensure fair play and
transparency in the state's action, it was desirable that
distribution of state largesse was effected by inviting open
tenders or by public auction. The Court, however, felt that
special agreements entered into with the selected industrial units
by the state government were permissible. The decision reflects
the mind of the court that it considered the doctrine of legitimate
expectation as an equitable principle and that in order to give full
effect to this principle, application of another principle in the
realm of public law may, if need be, have to be restricted.
The Supreme Court laid down a clear principle that claims on
legitimate expectation required reliance on representation and
resultant detriment in the same way as claims based on
promissory estoppel. In National Buildings Construction
Corporation v S. Raghunathan38, the respondents were
appointed in CPWD. They went on deputation to NBCC in Iraq
and opted to draw, while on deputation, their grade pay in CPWD
plus deputation allowance. Besides that, NBCC granted them
foreign allowance at 125% of the basic pay. Meanwhile their
basic pay in CPWD was revised w.e.f. 1.1.1986 on the
recommendation of the Fourth Pay Commissioin. They
contended that the aforesaid increase of 125% should be given
by NBCC on their revised scales. This was not accepted by
NBCC. The contention of the respondents based on legitimate
 66

expectation was rejected in view of the peculiar conditions and

financial stringency (due to embargo put by UNO) under which
NBCC was working in Iraq. On the facts of the case, the Court,
found that since there was no promise or agreement or contract
of service executed by NBCC for payment of foreign allowance
to its employees, who were posted on overseas projects, they
could not have any legitimate expectation of receiving such
allowance. The Court further ruled that the question, whether the
expectations and the claims made thereupon were legitimate or
not, was essentially a question of fact and therefore, the rules of
pleading would strictly apply. A party which seeks a relief from
the Court claiming expectation, ought to place such facts before
the court as would enable it to satisfy itself that such claim is
legitimate. It was observed by the Supreme Court that the
doctrine of
"legitimate expectation" had both substantive and procedural
aspects.
The Supreme Court restated that a policy decision making
representation that benefits of substantive nature will be granted,
creates legitimate expectation which is substantive in nature and
is normally binding on the decision maker. But such policy can
be changed in overriding public interest, since choice of policy is
for the decision-maker. However, the Court emphasised that
change in policy defeating substantive legitimate expectation
must satisfy the test of Wednesbury reasonableness. The Courts
can interfere on being satisfied that change in policy is irrational
or perverse. In Punjab Communication v. Union of lndia,39 the
government had changed its earlier policy to provide digital
wireless telecom facility which was for Eastern Uttar Pradesh
villages to a policy to provide wider coverage of villages through
analog system. Punjab Communications Limited had filed lowest
tender under the first scheme and hence approached the court
on the ground of violation of its legitimate expectation. The Court
found that change in policy is neither irrational nor perverse,
hence, no violation of legitimate expectation.
Conclusion :
 67

The plea of legitimate expectation still remains a very weak plea

in Indian Administrative Law. A claim for a benefit on the basis of
legitimate expectation is more often negatived by the courts. It is
rarely that such a plea is accepted by courts in India. It is humbly
submitted, therefore, that in situation of confusion of ideas
regarding the concept of legitimate expectation what needs to be
realized is that the concept envisages not merely "expectation"
but "legitimate expectation" which means that there is already
something super-added to just "expectation" - some kind of
assurance or representation by the administration or the fact that
the expectation has been recognized over a period of time. What
needs to be realized is that the concept is more of an equitable
nature rather than legalistic in nature

IMPORTANT QUESTIONS
Q.1. Define 'Natural Justice'. Discuss briefly certain rules of natural
justice followed during administrative and quasi-judicial
proceedings.
Q.2. Define "Audi alterm partem".
Q.3. Discuss the rule against bias and audi alteram partem rule as
parts of natural justice. Illustrate.
Q.4. Discuss Doctrine of legitimate expectations
Q.5. What is reasoned decision.
Q.6. Explain the concept of Rule against bias.?
 68

WRITS WITH SPECIAL REFERENCE TO -

WRIT OF HABEAS CORPUS
The writ of Habeas Corpus is one of the most ancient writs
known to the common law of England. It is one of the most
invaluable writs of the legal remedies, which a person enjoys, in
a democratic government. The Latin phrase 'Habeas Corpus'
means 'have the body'. This writ is in the nature of an order,
calling upon the person, who has detained another to produce
the latter before the court. It is necessary to let
the court know on what grounds he has been confined and to set
him free if there is no legal jurisdiction for the detention.
History : In England, Habeas Corpus is of common law origin. It
was the remedial counterpart of the substantive right of freedom
against arbitrary detention guaranteed by the Magna Carta.
In India, the jurisdiction to issue any of the prerogative writs did
not form part of the power of any judge or court until the
establishment of Supreme Court by the Regulating Act 1773. In
1774, by a charter it conferred the power to issue writs on each
of the justice of that court.
The Criminal Procedure Code 1898, conferred power on the
presidency High Courts to issue directions in the nature of
Habeas Corpus. The Criminal Law Amendment Act of 1923,
amended Section 491 of the criminal procedure code to extend
the jurisdiction of Habeas Corpus to the appellate jurisdiction of
the High Court also.
Constitutional Position in India : Under the Constitution of
India, the Supreme Court under Article 32 and High Court under
Article 226 were empowered to issue a writ of Habeas Corpus.
Object : The writ of Habeas Corpus provided a prompt and
effective remedy against illegal restraint.
Lord Wright : The incalculable value of Habeas Corpus is that it
enables the immediate determination of the right of the
 69

appellant's freedom.
Thus, the object of writ of Habeas Corpus is to release a person
from the illegal detention and not to punish the detaining
authority.

Black Stone : It is a writ antecedent to statute and throwing its

root deep into the genus of our common law. It is perhaps the
most important writ known to the common law of England,
affording as it does a swift and imperative remedy in all cases of
illegal restraint or confinement.
Who May Apply : A petition for the Wirt of Habeas Corpus may
be made by the person illegally detained. If the person himself is
unable to make such petition it can be made by any other person
having interest in the prisoner as wife, father or even a friend.
The applicant should not be a total stranger.
Against Whom Habeas Corpus Would Lie : A Writ of Habeas
Corpus may be issued against any person or authority who has
illegally detained or arrested the prisoner. And now according to
the new judicial trend, Habeas Corpus is available against an
individual also.
Procedure : Every application of Habeas Corpus must be
accompanied by an affidavit stating the facts and circumstances
leading to the making of such an application. If the court is
satisfied that there is a prima facie case for granting the prayer, it
will issue a rule mini calling upon the detaining authority on a
specific day to show cause. If the court is of the opinion that the
detention was not justified, it will issue Writ and direct the
detaining authority to release the prisoner. The court has
jurisdiction to grant interim bail pending disposal of a petition. In
some exceptional circumstances, a petition is maintainable even
if the person is not actually detained. In case of Lacchhu Devi v.
Union of India, Bhagwati J. observed that the Supreme Court
was not to follow strict rule of pleading nor the place of the
application for Habeas Corpus. Even a post card written by a
detenue from jail had been sufficient to activate the court into
 70

examining the legality of the detention.

Delay in Applying : The right of personal liberty is one of the
fundamental rights (under Article 21) and it can not be waived.
Moreover, wrongful detention or arrest of a person is a
continuous wrong and the injury subsists till it is remedied. A
petition for a writ of Habeas Corpus cannot be dismissed on the
ground of delay only.
Grounds for Issuing the Habeas Corpus: As per the
traditional functions of such type of Writ, unlawful or
unauthorised detention or arrest could be a ground for issuing
the Writ of Habeas Corpus. However, in case of Sunil Batra v.
Delhi Administration judiciary opted for a new dimension for the
issuance of Writ of Habeas Corpus. A letter, written by the
convict of the above case on the subject matter of inhuman
treatment to a fellow convict was treated as a petition of Habeas
Corpus by Krishna Iyer J. Thus, the Supreme Court has widened
its scope by giving relief through the writ against inhuman and
cruel treatment meted out to prisoners in the jail. The base of
such a new facet for the issuance of the Writ of Habeas Corpus
is the followance of rules of natural justice and fair and just law.
When it may be Refused : Since the object of Habeas Corpus
is remedial and not punitive, the Writ would not be issued if the
time of rule mini, the prisoner was not illegally detained, even
though at the time of detention, the orders were illegal.
If during the pendency of the petition for the Writ of Habeas
Corpus the prisoner is released, it will become in fructuous.
Duty of State : When an action of detaining or arresting of any
individual is challenged, it is the duty of the State to place before
the court all the relevant and material facts leading to the
impugned action truly, faithfully and with utmost fairness.
Duty of Court : Judges have played a historic role in guarding
the freedom with zeal and jealously. When a person is in illegal
custody, it is the duty of the court to safeguard his freedom
against any encroachment on his life or personal liberty. It is the
duty of the court to strike a balance between the needs to protect
 71

community on the one hand and the necessity to preserve the

liberty of a citizen on the
other hand.
Successive Application for Habeas Corpus : A person has no
right to present successive applications for the Writ of Habeas
Corpus. But if there are some new or fresh grounds, the same
person can approach the court subsequently for the writ of
Habeas Corpus.
Compensation : Ordinarily in the issuance of Writs, the court
will not award compensation. But in
Appropriate cases the court may award compensation to the
victim. According to the learned judges in case of Rudal Shah v.
State of Bihar, 'one of the telling ways in which the violation of
the right can reasonably be prevented and due compliance with
the mandate of Article 21 secured, is to mulct its violators in the
payment of monetary compensation.
Execution : A Writ of Habeas Corpus issued by the Supreme
Court or by a High Court must be obeyed by the person to whom
it is issued. A willful interference by the person to whom it is
issued would amount to contempt of court and would be
punishable with the attachment of property and even
imprisonment of the contemner.
WRIT OF PROHIBITION
Writ of Prohibition is an order given by the Superior Courts to the
inferior Courts or tribunals in case of want of jurisdiction or
excessive jurisdiction.
Nature and Scope : A Writ of Prohibition is a judicial Writ. The
principle underlying the writ of prohibition is that 'prevention is
better than cure'. This writ can be issued against a judicial or
quasi judicial authority. When a subordinate court or an inferior
tribunal hears a matter over which it has no jurisdiction or
exceeding its jurisdiction, the High Court or Supreme Court can
prevent it from usurping jurisdiction and keep it within its
jurisdictional limits.
 72

Grounds -
1. Absence or Excess of the Jurisdiction : In case of total lack of
jurisdiction, such writ can be issued against a judicial or quasi-
judicial authority prohibiting it from exercising jurisdiction not
vested in it. For instance, if a taxing authority proposes to impose
tax on a commodity exempted there has to be a ground for the
issuance of such writ. Such lack of jurisdiction must be patent
and apparent on face of the record which prevents a lengthy
enquiry into question of fact for the establishment of the want of
jurisdiction. In case of exceeding the jurisdictional limits, writ of
prohibition can be issued also. But where a tribunal or court has
the jurisdiction to make an order, but, in the exercise of that
jurisdiction, it commits a mistake, it can be corrected by an
appeal or revision and not by a writ of prohibition.
2. Violation of Natural Justice : A writ of prohibition can also be
issued when there is a violation of the principles of natural
justice. For instance, if there is bias on the part of the judge or if
no notice was issued or hearing given to the person against
whom the action is sought to be taken, there is no jurisdiction
vested in the court or the tribunal to proceed with such matter.
3. Unconstitutionality of Statute : The writ of prohibition can be
issued if the court or tribunal proceeds to act under a law, whose
constitutionality is challenged or which itself is ultravires of any of
the provision of constitution or is beyond the competence of the
legislature.
4. Infringement of Fundamental Rights : Prohibition can also be
issued where the impugned action infringes the fundamental
rights by an arbitrary order passed by any subordinate court or
tribunal.
Who can Apply : In case of apparent defect of jurisdiction, an
application for prohibition can be brought not only be the
aggrieved party but also by a stranger.
Against Whom Prohibition Would Lie : A writ of prohibition is
a judicial writ and may be issued against the subordinate courts,
 73

tribunals and other quasi-judicial authorities such as tax authority

from discharging administrative executive or ministerial functions.
It would not lie against legislature restraining it from enacting or
enforcing a law.
Alternative Remedy : Prohibition is a writ of right and not
discretionary. Existence of alternative remedy is a matter which
may be taken into consideration by the High Court in granting a
writ of prohibition but it is not an absolute bar to the issuance of
such writ.
Conclusion : Writ of prohibition lies in case of lack of jurisdiction
or excess of jurisdiction. If the defect is apparent, it is not only
the power but the duty of the Superior courts to issue this writ to
prevent subordinate courts or inferior tribunals from the
usurpation of jurisdiction.
WRIT OF CERTIORARI
Certiorari means "to certify" : It is so named as in its original
Latin form it required - "the judge of any inferior court of record
to certify the record of any matter in the court with all things
touching the same and to send it to the king's court to be
examined. It is an order issued by Supreme Court Under Article
32 and by High Court under article 226 of Indian constitution to
an inferior court or any authority exercising judicial or quasi
judicial functions to transmit to the court the records of
proceeding pending therein for security and decide the legality
and validity of the orders passed by them.
Object : The object of certiorari is to keep all subordinate courts
and inferior tribunals and quasi judicial authorities within their
jurisdiction. If they act in excess of their jurisdiction, their
decisions can be quashed by superior courts by issuing this writ.
Conditions -
1. The judicial or quasi judicial body must have legal authority.
2. Such authority must be an authority to determine questions
affecting rights of subjects.
 74

3. It must have duty to act judicially, and

4. It must have acted in excess of their jurisdiction.
Grounds : A writ of certiorari may be issued on the following
grounds-
1. Error of Jurisdiction : When an inferior court or tribunal acts
without jurisdiction in excess of its jurisdiction or fails to exercise
proper jurisdiction vested in it by law, a writ of certiorari may be
issued against it.
For instance, in case of R.V. Ministers of Transport even though
the minister was not empowered to revoke the licence, he had
passed an order of revocation of licence. The order was quashed
on the ground that it was without jurisdiction and therefore 'ultra
vires'.
2. Jurisdictional Fact : Lack of jurisdiction may also arise from the
absence of some preliminary facts, which must exist before a
tribunal exercises its jurisdiction. They are known as
jurisdictional are collateral facts. If a jurisdictional fact does not
exist, the court or tribunal cannot act. If an inferior court or a
tribunal wrongly assumes the existence of such a fact, a writ of
certiorari can
be issued.
Ina case Supreme Court held that the satisfaction of the statuary
authority was a jurisdictional fact and the power can be exercised
only on the existence thereof. But if an inferior court or tribunal
acts within the jurisdiction vested in it, the writ of certiorari
cannot be issued against.

3. Error Apparent on Face of Record : If there is an error of law,

which is apparent on the fact of record, a decision of an inferior
court or tribunal may be quashed by a writ of certiorari. If an
inferior court or tribunal takes into account irrelevant
considerations or does not take into account relevant
considerations or erroneously admits inadmissible evidence or
refuses to admit admissible evidence or if the finding of fact is
 75

based on no evidence, it can be said that there is such an error.

But an error of fact, however grave it may appear to be, cannot
be corrected by the writ of certiorari.
In Ujjam Bai v. State of U.P., the question was regarding one of
the interpretations of a notification. Due to the wrong
interpretation of the said notification, tax imposition was
challenged by the petitioner. The Supreme Court refused to
interfere under Article 32 and observed:
"Where a quasi judicial authority has jurisdiction to decide a
matter, it does not lose its jurisdiction by coming to a wrong
conclusion, whether it is wrong in law or in fact.
4. Violation of Natural Justice : A writ of certiorari can be issued
when there is a violation of principles of natural justice.
5. Other Grounds : A writ of certiorari can also be issued when there
is an infringement of fundamental right of the petitioner or where
the order passed by the inferior court or tribunal is malafide.
While quashing the order of dismissal, the court can also grant
consequential benefits of re-instatement in service payment of
basic wages etc.
Who may Apply : Normally the party whose rights are affected
may apply for a writ of certiorari. But if the question affects the
public at large, any person may apply.
Where the application is made by the aggrieved party, the court
shall grant relief exdebito justitiae, but if it is made by a party not
directly affected in the litigation, to grant a writ is entirely in the
discretion of the court.
Against Whom it Would Lie : Certiorari (a judicial writ) lies
against subordinate courts, inferior tribunals, quasi tribunals,
quasi judicial bodies and authorities. Even if the court or tribunal
ceases to exist or becomes fuscous officio certiorari can still be
issued against it.
Alternative Remedy : A writ of certiorari is a discretionary
remedy and the fact that the aggrieved party has another
adequate remedy may be taken into consideration and it may
 76

not be issued on that ground.

Limits : A writ of certiorari can never be issued to call for the
record of papers and proceeding of an act or ordinance and for
quashing such act or ordinance.
Conclusion : A writ of certiorari controls all courts, tribunals and
other authorities when they purport to act without jurisdiction or in
excess of it. It is also available in case of the violation of the
principles of natural justice. Over and above judicial and quasi
judicial bodies, now writ is also available against administrative
orders.
WRIT OF MANDAMUS

Mandamus is a command which is issued by a court to an

authority asking it to perform a public duty imposed upon him by
the constitution or any other law.
Nature and Scope : Mandamus is a judicial remedy issued in
the form of an order from the Supreme Court or High Court to
any constitutional, statutory or non-statutory agency, corporate
or public authority to do or to forbear from doing something
which that agency is obliged to do or refrain from doing under
the law and which is in the nature of a public duty or statutory
duty.
Conditions for the Grant of Mandamus : The Writ of
Mandamus can be issued if the following conditions are satisfied
by the petitioner.
1. Legal Right : For the grant of mandamus the applicant must have
a right to compel the performance of some duty cast on the
authority and such right must belong to the petitioner. However, it
does not mean that a person can not enforce a public right which
does not specifically belong to any individual. These must be
imposed on the authority either by statute or constitution or by
some rules of common law but should not be contractual.
2. Demand and Refusal : The petition for a Writ of Mandamus must
be preceded by a demand of justice and its refusal. In Halsbury's
 77

Law of England, it is stated - "As a general rule the order will not
be granted unless the party complained of has known what it
was he was required to do. So that he had the means of
considering whether or not he should comply and it must be
shown by evidence that there was a distinct demand of that
which the party seeking the mandamus desires to enforce and
that demand was met by a refusal." The above principles are
accepted in India also.
3. Good Faith : Such an application must have been made in good
faith and not for any ulterior motive or purpose.
Who may Apply : A person whose right has been infringed may
apply for the writ of mandamus but such right must be subsisting
on the date of filing the petition.
Against Whom Mandamus Would Lie : Writ of mandamus is
available against parliament and legislatures, against the court
and tribunals, against Government and its officers, against local
authorities like municipalities, panchayats, against state owned
or state controlled corporation against universities, against
election tribunals and against other authorities falling within the
definition "State" U/Article 12 of the constitution of India.
Against Whom Mandamus Would not Lie : Writ of mandamus
would not lie against the President or the Governor of the State
for the exercise and performance of power and duties of his
office and for any act done or purporting to be done by him in
exercise of such power or duties. It will not lie against an inferior
or ministerial officer who is bound to obey the order of his
superior. It does not lie against a private individual or any
incorporate body.
Alternative Remedy : Writ of mandamus will not be refused on
the ground of alternative remedy being available if the petitioner
approaches the court with an allegation that his fundamental
right has been violated. But if allegation is not about the
infringement of fundamental right, the availability of alternative
remedy may be a relevant consideration. If revision or appeal is
available then mandamus may be refused.
 78

Conclusion : In India, Writ of mandamus is the most popular

writ, extensively and successfully used by aggrieved persons.
Since the object of public law is to make functioning of
administrative bodies in an efficient manner yielding the best
results to the state, society and the individuals without undue
delay or costs, it is the duty of the courts to hold this process
through the instrumentality of Writs more particularly by a Writ of
mandamus.
WRIT OF QUO-WARRANTO
WRIT OF QUO-WARRANTO Is what is your authority. It is a
judicial remedy against any public officer or franchise. By using
this writ, the person concerned is called upon to show to the
court by what authority he holds the office. If he has no authority
to hold such office, he can be ousted from its enjoyment. This
writ also protects the right of the holder of such office in case of
unlawful deprivation from his office.
Object : By this writ, judiciary can control executive action in the
matter of making appointments to public offices against the
relevant statutory provisions; it also protects a citizen from being
deprived of public office to which he may have a right.
Conditions Necessary for the Grant of Quo Warranto -

1. The office must be of a public nature. It means an office in which

public has an interest. and the holder of such office has no legal
authority to hold the said office. The writ will not lie in respect of
office of a private nature.
2. The office must have a substantive character i.e. must be an
independent office and the holder of such office also must be an
independent official not mere subordinate.
3. The office must be statutory or constitutional. Thus a writ of quo
warranto may be issued in respect of offices of Prime Minister,
Advocate General etc.
4. The holder must have asserted his claim to the office.
 79

Who may Apply : The application for a writ of quo warranto

challenging the legality and validity of an appointment to a public
office is maintainable at the instance of any private person even
though he is not personally aggrieved or interested in the matter.
The object of such writ is to prevent a person who has wrongfully
usurped a public office from continuing in that office.
When may be Refused : Quo warranto is a discretionary
remedy. It cannot be claimed as a matter of right. The grant of
such writ may be refused by the court after taking into account
the facts and circumstances of the case. In case of vexatious
issuance of such writ or where there was an acquiescence on
the part of petitioner, if holder of an office has ceased to hold the
office in question, the grant of such writ may be refused.
Alternative Remedy : If an alternative and equally effective
remedy is available to the applicant a writ may not issue quo
warranto and relegate him to avail of that remedy. Existence of
alternative remedy however does not act as an absolute bar.
Delay : Cause of action for a writ of quo-warranto is a
continuous one. If the appointment of an officer is illegal, every
day that he acts in that office, a fresh cause of action arises and
petition cannot be dismissed on the ground of delay.
Conclusion : The issuance of such writ assure that an usurper
or an intruder cannot be allowed to retain a public office any
more. It is the duty of the court that as soon as possible it takes
an action upon the petition regarding the writ of quo-warranto
and declares that person in question is not entitled to hold the
office and to restrain him from acting as such.
 80

IMPORTANT QUESTIONS
Q.1. Define the writ of certiorari. Can this writ be issued in a case
of the pri. Natural Justice being violated by some legal
authority?
Q.2. Short note on writs.
Q.3. Against whom a writ of prohibition can be issued.
Q.4. State as to which of the following pairs is correctly matched:
a. Writ of 'Habeas Corpus' is issued to the state only.
b. 'Writ of Mandamus' is issued to the public servant.
c. 'Writ of Quo-warranto is issued to the subordinate courts.
 81

PUBLIC INTEREST LITIGATION

Legal History: The Indian PIL is the improved version of PIL of
U.S.A. According to "Ford Foundation" of U.S.A., "Public interest
law is the name that has recently been given to efforts that
provide legal representation to previously unrepresented groups
and interests. Such efforts have been undertaken in the
recognition that ordinary marketplace for legal services fails to
provide such services to significant segments of the population
and to significant interests. Such groups and interests include the
proper environmentalists, consumers, racial and ethnic minorities
and others". The emergency period (1975- 1977) witnessed
colonial nature of the Indian legal system. During emergency state
repression and governmental lawlessness was widespread.
Thousands of innocent people including political opponents were
sent to jails and there was complete deprivation of civil and
political rights. The post emergency period provided an occasion
for the judges of the Supreme Court to openly disregard the
impediments of Anglo-Saxon procedure in providing access to
justice to the poor.
Public Interest Litigation popularly known as PIL can be broadly
defined as litigation in the interest of that nebulous entity: the
public in general. Prior to 1980s, only the aggrieved party could
personally knock the doors of justice and seek remedy for his
grievance and any other person who was not personally affected
could not knock the doors of justice as a proxy for the victim or the
aggrieved party. In other words, only the affected parties had the
locus standi (standing required in law) to file a case and continue
the litigation and the non affected persons had no locus standi to
do so. And as a result, there was hardly any link between the
rights guaranteed by the Constitution of Indian Union and the laws
made by the legislature on the one hand and the vast majority of
 82

illiterate citizens on the other. The traditional view in regard to

locus standi in Writ jurisdiction has been that only such persons
who: a) Has suffered a legal injury by reason of violation of his
legal right or legally protected interest; orb) Is likely to suffer a
legal injury by reason of violation of his legal right or legally
protected interest. Thus before a person acquired locus standi he
had to have a personal or individual right which was violated or
threatened to be violated. He should have been a "person
aggrieved" in the sense that he had suffered or was likely to suffer
from prejudice, pecuniary or otherwise.
However, all these scenario gradually changed when the post
emergency Supreme Court tackled the problem of access to
justice by people through radical changes and alterations made in
the requirements of locus standi and of party aggrieved. The
splendid efforts of Justice P N Bhagwati and Justice VR Krishna
Iyer were instrumental of this juristic revolution of eighties to
convert the Apex Court of India into a Supreme Court for all
Indians. Justice V. R. Krishna Iyer and P. N. Bhagwati
recognised the possibility of providing access to justice to the poor
and the exploited people by relaxing the rules of standing. In the
post-emergency period when the political situations had changed,
investigative journalism also began to expose gory scenes of
governmental lawlessness, repression, custodial violence,
drawing attention of lawyers, judges, and social activists. PIL
emerged as a result of an informal nexus of pro-active judges,
media persons and social activists. This trend shows starke
difference between the traditional justice delivery system and the
modern informal justice system where the judiciary is performing
administrative judicial role. PIL is necessary rejection of laissez
faire notions of traditional jurisprudence.
The first reported case of PIL in 1979 focused on the inhuman
conditions of prisons and under trial prisoners. In Hussainara
Khatoon v. State of Bihar , the PIL was filed by an advocate on
the basis of the news item published in the Indian Express,
highlighting the plight of thousands of undertrial prisoners
languishing in various jails in Bihar. These proceeding led to the
 83

release of more than 40,000 undertrial prisoners. Right to speedy

justice emerged as a basic fundamental right which had been
denied to these prisoners. The same set pattern was adopted in
subsequent cases.
A new era of the PIL movement was heralded by Justice P.N.
Bhagawati in the case of S.P. Gupta v. Union of India . In this
case it was held that "any member of the public or social action
group acting bonafide" can invoke the Writ Jurisdiction of the High
Courts or the Supreme Court seeking redressal against violation
of a legal or constitutional rights of .persons who due to social or
economic or any other disability cannot approach the Court. By
this judgment PIL became a potent weapon for the enforcement
of "public duties" where executed in action or misdeed resulted in
public injury. And as a result any citizen of India or any consumer
groups or social action groups can now approach the apex court
of the country seeking legal remedies in all cases where the
interests of general public or a section of public are at stake.
In 1981 the case of Anil Yadav v. State of Bihar, exposed the
brutalities of the Police. News paper report revealed that about 33
suspected criminals were blinded by the police in Bihar by putting
the acid into their eyes. Through interim orders Supreme Court
directed the State government to bring the blinded men to Delhi
for medical treatment. It also ordered speedy prosecution of the
guilty policemen. The court also read right to free legal aid as a
fundamental right of every accused. Anil Yadav signalled the
growth of social activism and investigative litigation.
In Citizen for Democracy v. State of Assam , the S. C. declared
that the handcuffs and other fetters shall not be forced upon a
prisoner while lodged in jail or while in transport or transit from
one jail to another or to the court or back.
Though the Constitution of India guarantees equal rights to all
citizens, irrespective of race, gender, religion, and other
considerations, and the "directive principles of state policy" as
stated in the Constitution obligate the Government to provide to all
citizens a minimum standard of living, the promise has not been
 84

fulfilled. The greater majority of the Indian people have no

assurance of two nutritious meals a day, safety of employment,
safe and clean housing, or such level of education as would make
it possible for them to understand their constitutional rights and
obligations. Indian newspapers abound in stories of the
exploitation - by landlords, factory owners, businessmen, and the
state's own functionaries, such as police and revenue officials - of
children, women, villagers, the poor, and the working class.
Though India's higher courts and, in particular, the Supreme Court
have often been sensitive to the grim social realities, and have on
occasion given relief to the oppressed, the poor do not have the
capacity to represent themselves, or to take advantage of
progressive legislation. In 1982, the Supreme Court conceded
that unusual measures were warranted to enable people the full
realization of not merely their civil and political rights, but the
enjoyment of economic, social, and cultural rights, and in its far-
reaching decision in the case of PUDR [People's Union for
Democratic Rights] vs. Union of India , it recognised that a third
party could directly petition, whether through a letter or other
means, the Court and seek its intervention in a matter where
another party's fundamental rights were being violated. In this
case, 'Where a legal wrong or a legal injury is caused to a
person or to a determinate class of persons by reason of
violation of any constitutional or legal right or any burden is
imposed in contravention of any
constitutional or legal provision or without authority of law or any
such legal wrong or legal injury or illegal burden is threatened and
such person or determinate class of persons by reasons of
poverty, helplessness or disability or socially or economically
disadvantaged position unable to approach the court for relief, any
member of public can maintain an application for an appropriate
direction, order or writ in the High Court under Article 226 and in
case any breach of fundamental rights of such persons or
determinate class of persons, in this court under Article 32
seeking judicial redress for the legal wrong or legal injury caused
to such person or determinate class of persons."
 85

The rule of locus standi have been relaxed and a person acting
bonafide and having sufficient interest in the proceeding of Public
Interest Litigation will alone have a locus standi and can approach
the co urt to wipe out violation of fundamental rights and genuine
infraction of statutory provisions, but not for personal gain or
private profit or political motive or any oblique consideration.
The Supreme Court in Indian Banks' Association, Bombay
and ors v. M/s Devkala Consultancy Service and Ors ., held
that "In an appropriate case, where the petitioner might have
moved a court in her private interest and for redressal of the
personal grievance, the court in furtherance of Public Interest may
treat it a necessity to enquire into the state of affairs of the subject
of litigation in the interest of justice. Thus a private interest case
can also be treated as public interest case".
In Guruvayur Devaswom Managing Commit. And Anr. v. C.K.
Rajan and Ors , the Supreme Court held, "The Courts exercising
their power of judicial review found to its dismay that the poorest
of the poor, depraved, the illiterate, the urban and rural
unorganized labour sector, women, children, handicapped by
'ignorance, indigence and illiteracy' and other down trodden have
either no access to justice or had been denied justice. A new
branch of proceedings known as 'Social Interest Litigation' or
'Public Interest Litigation' was evolved with a view to render
complete justice to the aforementioned classes of persona. It
expanded its wings in course of time. The Courts in pro bono
publico granted relief to the inmates of the prisons, provided legal
aid, directed speedy trial, maintenance of human dignity and
covered several other areas. Representative actions, pro bono
publico and test litigations were entertained in keeping with the
current accent on justice to the common man and a necessary
disincentive to those who wish to by pass the, real issues on the
merits by suspect reliance on peripheral procedural
shortcomings... Pro bono publico constituted a significant state in
the present day judicial system.
They, however, provided the dockets with much greater
 86

responsibility for rendering the concept of justice available to the

disadvantaged sections of the society. Public interest litigation has
come to stay and its necessity cannot be overemphasized. The
courts evolved a jurisprudence of compassion. Procedural
propriety was to move over giving place to substantive concerns
of the deprivation of rights. The rule of locus standi was diluted.
The Court in place of disinterested and dispassionate adjudicator
became active participant in the dispensation of justice".
CASE LAWS
Peoples Union for Democratic Rights v. Union of India . The court
now permits Public Interest Litigation or Social Interest Litigation
at the instance of" Public spirited citizens" for the enforcement of
constitutional & legal rights of any person or group of persons who
because of their socially or economically disadvantaged position
are unable to approach court for relief. Public interest litigation is
a part of the process of participate justice and standing in civil
litigation of that pattern must have liberal reception at the judicial
door steps.
Adverting to the Constitutional prohibition on "begar", or forced
labor and traffic in human beings, PUDF submitted that workers
contracted to build the large sports complex at the Asian Game
Village in Delh were being exploited. PUDR asked the Court to
recognize that "begar" was far more than compellinf someone to
work against his or her will, and that work under exploitative and
grotesquely humiliatinf conditions, or work that was not even
compensated by prescribed minimum wages, was violative 01
fundamental rights. As the Supreme Court noted,
The rule of law does not mean that the protection of the law must
be available only to a fortunate few 01 that the law should be
allowed to be prostituted by the vested interests for protecting and
upholding the status quo under the guise of enforcement of their
civil and political rights. The poor too have civil and political rights
and rule of law is meant for them also, though today it exists only
on paper and not in reality. If the sugar barons and the alcohol
kings have the fundamental right to carry on their business and to
 87

fatten their purses by exploiting the consuming public, have the

chamars belonging to the lowest strata of society no fundamental
right to earn an honest living through their sweat and toil?
Thus the court was willing to acknowledge that it had a mandate
to advance the rights of the disadvantaged and poor, though this
might be at the behest of individuals or groups who themselves
claimed no disability. Such litigation, termed Public Interest
Litigation or Social Action Litigation by its foremost advocate,
Professor Upendra Baxi, has given the court "epistolary
jurisdiction".
Meaning and Definition
According to Black's Law Dictionary- "Public Interest Litigation
means a legal action initiated in a court of law for the enforcement
of public interest or general interest in which the public or class of
the community have pecuniary interest or some interest by which
their legal rights or liabilities are affected."
In the case of People's Union for Democratic Rights v. Union of
India , it was held that "Public Interest Litigation which is a
strategic arm of the legal aid movement and which is intended to
bring justice within the reach of the poor masses, who constitute
the low visibility area of humanity, is a totally different kind of
litigation from the ordinary traditional litigation which is essentially
of an adversary character where there is a dispute between two
parties, one making a claim or seeing relief against the other and
that other opposing such claim or relief. Public interest litigation is
brought before the court not for the purpose of enforcing the right
of one individual against another as happens in the case of
ordinary litigation, but it is intended to promote and vindicate
public interest which demands that violations of constitutional or
legal rights of large numbers of people who are poor, ignorant or
in a socially or economically disadvantaged position should not go
unnoticed and un-redressed.
That would be destructive of the Rule of Law which forms one of
the essential elements of public interest in any democratic form of
government. The Rule of Law does not mean that the protection
 88

of the law must be available only to a fortunate few or that the law
should be allowed to be prostituted by the vested interests for
protecting and upholding the status quo under the guise of
enforcement of their civil and political rights. The poor too have
civil and political rights and the Rule of Law is meant for them
also, though today it exists only on paper and not in reality."
Concept of PIL
According to the jurisprudence of Article 32 of the Constitution of
India, "The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this
part is guaranteed". Ordinarily, only the aggrieved party has the
right to seek redress under Article In 32. In 1981, Justice P N
Bhagwati in S P Gupts Vs v. Union of India. articulated the concept
of PIL as follows:-

In the Judges Transfer Case - Court held Public Interest

Litigation can be filed by any member of public having sufficient
interest for public injury arising from violation of legal rights so as
to get judicial redress. This is absolutely necessary for maintaining
Rule of law and accelerating the balance between law and justice.
It is a settled law that when a person approaches the court of
equity in exercise of extraordinary jurisdiction, he should approach
the court not only with clean hands but with clean mind, heart and
with clean objectives.
Shiram Food & Fertilizer case through Public Interest Litigation
directed the Co. Manufacturing hazar ous & lethal chemical and
gases posing danger to life and health of workmen & to take all
necessary safety measures before re-opening the plant.
In the case of M.C Mehta V. Union of India - In a Public Interest
Litigation brought against Ganga water pollution so as to prevent
any further pollution of Ganga water. Supreme court held that
petitioner although not a riparian owner is entitled to move the
court for the enforcement of statutory provisions , as he is the
person interested in protecting the lives of the people who make
 89

use of Ganga water.

Parmanand Katara V. Union of India - Supreme Court held in the
Public Interest Litigation filed by a human right activist fighting for
general public interest that it is a paramount obligation of every
member of medical profession to give medical aid to every injured
citizen as soon as possible without waiting for any procedural
formalities.
Council For Environment Legal Action V. Union Of India -: Public
Interest Litigation filed by registered voluntary organisation
regarding economic degradation in coastal area. Supreme Court
issued appropriate orders and directions for enforcing the laws to
protect ecology.
Procedure for Filing Public Interest Litigation.
a) Filing : Public Interest Litigation petition is filed in the same
manner, as a writ petition is filed. If a PIL is filed in a High Court,
then two (2) copies of the petition have to be filed (for Supreme
Court, then (4)+(1)(i.e.5) sets) Also, an advance copy of the
petition has to be served on the each respondent, i.e. opposite
party, and this proof of service has to be affixed on the petition.
b) The Procedure : A Court fee of Rs. 50 , per respondent (i.e. for
each number of party, court fees of Rs 50) have to be affixed on
the petition. Proceedings, in the PIL commence and carry on in
the same manner, as other cases. However, in between the
proceedings if the Judge feels that he may appoint the
commissioner, to inspect allegations like pollution being caused,
trees being cut, sewer problems, etc. After filing of replies, by
opposite party, or rejoinder by the petitioner, final hearing takes
place, and the judge gives his final decision.
Against whom Public Interest Litigation can be filed
A Public Interest Litigation can be filed against a State/ Central
Govt., Municipal Authorities, and not any private party. The
definition of State is the same as given under Article 12 of the
Constitution and this includes the Governmental and Parliament
of India and the Government and the Legislature of each of the
 90

States and all local or other authorities within the territory of India
or under the control of the Government of India. According to
Art.12, the term "State" includes the Government and Parliament
of India and the Government and the Legislatures of each of the
States and all local or other authorities within the territory of India
or under the control of the Government of India. Thus the
authorities and instrumentalities specified under Art.12 are –
• The Government and Parliament of India
• The Government and Legislature of each of the States
• All local authorities
• Other authorities within the territory of India or under the
Government of India.
Factors that have contributed to growth of PIL.
Among, the numerous factors that have contributed to the growth
of PIL in this country, the following deserve special mention:
• The character of the Indian Constitution. Unlike Britain, India has
a written constitution which through Part Ill (Fundamental Rights)
and Part IV (Directive Principles of State Policy) provides a
framework for regulating relations between the state and its
citizens and between citizens inter se.
• India has some of the most progressive social legislation to be
found anywhere in the world whether it be relating to bonded
labor, minimum wages, land ceiling, environmental protection, etc.
This has made it easier for the courts to haul up the executive
when it is not performing its duties in ensuring the rights of the
poor as per the law of the land.
• The liberal interpretation of locus standi where any person can
apply to the court on behalf of those who are economically or
physically unable to come before it has helped. Judges
themselves have in some cases initiated suo moto action based
on newspaper articles or letters received.
• Although social and economic rights given in the Indian
 91

Constitution under Part IV are not legally enforceable, courts have

creatively read these into fundamental rights thereby making them
judicially enforceable. For instance the "right to life" in Article 21
has been expanded to·include right to free legal aid, right to live
with dignity, right to education, right to work, freedom from torture,
bar fetters and hand cuffing in prisons, etc.
• Sensitive judges have constantly innovated on the side of the
poor. for instance, in the Bandhua Mukti Morcha case in 1983, the
Supreme Court put the burden of proof on the respondent stating
it would treat every case of forced labor as a case of bonded labor
unless proven otherwise by the employer. Similarly in the Asiad
Workers judgment case, Justice P.N. Bhagwati held that anyone
getting less than the minimum wage can approach the Supreme
Court directly without going through the labor commissioner and
lower courts.
• In PIL cases where the petitioner is not in a position to provide all
the necessary evidence, either because it is voluminous or
because the parties are weak socially or economically, courts
have appointed commissions to collect information on facts and
present it before the bench.
 92

OMBUDSMAN (LOKPAL) IN INDIA & LOKAYUKTA IN STATE

OF U.P.
Meaning of Ombudsman-'Ombudsman" means a delegated
person, agent, officer or commissioner of parliament.
According to the Garner; "Ombudsman" means an officer of
parliament, having as his primary function, the duty of acting as
an officer or agent of parliament, for the purpose of safeguarding
citizens against misuse of administrative power by the executive.
Importance of Ombudsman-Ombudsman is not a super
administrator to whom an individual can appeal when he is
dissatisfied with the discretionary decision of a public official in the
hope that he may obtain a more favourable decision. His primary
function is to investigate allegations of mala administration.
Ombudsman inquires and investigates all complains, made by
citizens against the above of discretionary power,
maladministration. He is empowered to grant relief to the
aggrieved person. He can act ever suomoto. His powers are not
limited like the power of civil courts.
Historical Growth and Development-The ombudsman
institution originated in Sweden in 1809 and there after it has been
accepted in other countries including Finland, Denmark,
Newzeland, England (Parliamentary Commissioner) and India
(Lokpal and Lokayukta).
In New Zealand-The concept was introduced in New Zealand in
the year of 1962 by passing Parliamentary Commissioner
(ombudsman) Act 1962. This Act was replaced by Act 1975. This
act provided for one or more ombudsman.
The ombudsman holds office for a term of 5 year and can be re-
appointed. He can be appointed by Governor General on the
recommendation of house representatives and can be removed
by the Governor General upon an address of house
representatives on the grounds of disability, bankruptcy,
neglecting duty or misconduct.
 93

In England-The ombudsman officially known as the

parliamentary commissioner in England. It is created by
parliamentary commissioner Act 1967. He is appointed by crown
and holds office till the age of 65 years. He had an independent
status and been given statutory powers. His function is to report
his findings to the parliament and it is left to the parliament to
decide what action should be taken on his report.
In Australia-Since Australia is a federation, there is a two tier
ombudsman system. As regards the common wealth ombudsman
system, it was established by the ombudsman Act 1976.
In India-In India the creation of the institution of Lokpal similar to
that of ombudsman. The various committees and commissions in
1964 the santhanam committee on prevention of corruption in
1966, the administrative reforms commission headed by Murarji
Desai recomended the institution of the Lokpal. The Lokpal
proposal was introduced in 1968, 1971, 1977 without Lok Sabha
getting around to approving the Bill. In 1985 the Lokpal Bill was
introduced but it was lapsed again because it has not sufficient
enough to incorporate all the required offices. The Govt. of India
was of the view that the prevention of corruption Act 1988,
contained adequate provisions to deal with case involving
corruption of all public servant in 1989, the V.P. Singh Govt. has
also introduced a Lokpal Bill bringing for the very first time the
Prime Minister with in the domain of Lokpal. In 1996. again the Bill
was introduced. At the time of dissolution of 12 th Lok Sabha on
261h April 1999, the Bill was under consideration of Department
related parliamentary standing committee.
Once again in 2003, the Lokpal Bil was introduced. This Bill was
introduced in Lok Sabha for the ninth time. The Bill is likely to
ensure transparency in the government system. The proposed Bill
provides for the establishment of the institution of Lokpal to
enquire into allegations of corruption against public functionaries
including the Prime Minister. Recent discussion on Lokpal Bill was
held in parliament in 2006 but the bill did not passed yet.
Powers and Duties of Ombudsman-The ombudsman inquires
 94

and investigates into complaints made by citizens against abuse

of discretionary power, maladministration and take appropriate
actions. He had access to departmental files. The powers of
ombudsman are not limited. The complaint is not required to lead
any evidence before the ombudsman to prove the truth. It is
the function of the ombudsman to satisfy himself whether or not
the complaint was justified. He can act suomoto. He can grant
relief to the aggrieved person as unlike the power of a civil court.
Status of Ombudsman-He is a judge or lawyer or a high officer
and his character reputation and integrity are above board. He is
appointed by parliament and thus, he is not an officer in the
administrative hierarchy. He is above the party politics. He makes
a report to parliament and setout reactions of citizens against the
administration. He also makes his recommendation to eliminate
the cause of complaints. Those reports are published in the
national newspaper and very wide publicity is given to those
reporty.
In short "He is the "watchdog" or "public safety valve" against
maladministration and the protector of littleman."
Defects
1. It is argued that this institution may prove successful in those
countries which have a small population, not in the countries
having large population as a no. of complaints may be to large for
a single man to dispose of.
2. According to Mukherjee J. in India this institution is not suitable. It
is an impracticable and disastrous experiment which will not fit
into the Indian constitution.
Conclusion-In a democratic government, it is expected that the
subjects have adequate means for the redress of their
grievances. Since, the present judicial system is not sufficient to
deal with all cases of injustice, an institute like ombudsman may
help in doing full and complete justice to aggrieved person. But
ombudsman is not a panacea for all the evils of bureaucracy.
Lokayukta in States : Several States in India have enacted the
 95

Lokayukta statutes. These States are Orissa (1970) Maharashtra

(1971), Rajasthan (1973), Bihar (1973), Uttar Pradesh (1975),
Madhya
Pradesh(1981 ), Himachal Pradesh (1983), Kerala (1983),
Karnataka (1984), Gujarat (1975) and Andhra Pradesh (1983).
Under U.P., Lokayakta and UPLokayukta Act, 1975, the
Lokayakta shall be appointed by the Governor with the
consultation of the Chief Justice of the High Court and Leader of
the opposition in the Legislative Assembly. Up-Lokayukta shall be
appointed with the consultation of Lokayukta. The Lokayakta shall
be a person who is or has been a Judge of the Supreme Court or
a High Court. They should neither be a member of any legislature
nor connected with any political party or any profession. He shall
hold office for five years.
Functions of the Lokayukta in UP: The Lokayukta or U.P.
Lokayukta may investigate any action taken by (a) a minister or a
secretary, or (b) any public servant including a public servant
notified for this purpose by the State Government. He will
investigate the matter on complaint which must be complained by
an affidavit jurisdiction of the Lokayukta or Up-Lokayukta. On
complaint if the Lokayukta or Up Lokayukta is satisfied on
investigation that injustice or undue hardship has been done, he
shall recommend to the public servant and the competent
authority concerned that such injustice shall be remedied or
redressedand complainant should not have any other remedy.
The State Government may exclude any complaint involving a
grievance or an allegation against a public servant, from the. If he
is not satisfied with the action he may make special report to the
Governor.
The Lokayukta may investigate any action "taken by way of
decision, recommedation or finding or in any other manner, and
includes failure to act" which is taken by, or with the general
approval of (i) a minister
- other than the Chief Minister; (ii) a Secretary, or (iii) any public
servant in any case wherein a complaint involving a 'grievance' or
a grievance is made in respect of such action.
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The Lokayukta and Up-Lokyukta shall present annually a

consolidated report on the performance of their functions under
the Act of the Governor.
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ADMINISTRATIVE TRIBUNALS
With Special Reference to Central Administrative Tribunals.
Nothing is more remarkable in our present social and
administrative arrangements than the proliferation of tribunals of
many different kinds. There is scarcely a new statute of social or
economic complexion which does not add to the number. - Sir
C.k. Allen
There are a large number of laws which charge the executive with
adjudicatory functions and the authorities so charged are in the
strict sense, administrative tribunals. Administrative Tribunals are
agencies created by specific enactments to adjudicate upon
controversies that may arise in the course of the implementation
of the substantive provisions of the relative enactments. Unlike
that of a country, the jurisdiction of administrative tribunal is not
general but specific. - T.C.A.
Ramanujacharia
The traditional theory of 'laissez faire' has been given up and the
old 'police state' has now become a 'welfare state' and because of
this radical change in the philosophy as to the role to be played by
the state, its functions have increased. Today it exercises not only
sovereign functions but as a progressive democratic state. The
controversies and issues arising are not purely legal issues rather
they are socio economic problems and ordinary courts cannot
take care such problems expediously and effectively. Administrate
tribunals are, therefore, established to decide various quasi-
judicial issue in place of ordinary court of law.
Definition -Administrative Tribunals may be defined as
administrative bodies setup solely to discharge quasi-judicial
functions. he certain circumstances, justice lies not in disposal of
the case in accordance with the law but in fair disposition.
In Durga Shankar Mehta vs. Raghuraj Singh1 the Supreme Court
defined 'tribunal' in the following words:
"The expression 'Tribunal' are used in Article 136 does not mean
the same thing as 'Court' but includes, within its ambit, all
 98

adjudicating bodies, provided they are constituted by the State

and are invested with judicial as distinguished from administrative
or executive functions.
CONSTITUTIONAL RECOGNITION
Article 323-A and 323-B have been inserted by the parliament by
42nd amendment in the constitution of India. These articles have
been authorised to constitute administrative tribunals for
settlement of disputes and adjudications of matters specified
therein.
Characteristics of Administrative Tribunals-
1. Ad. Tribunals are established by the Executive under the
provisions of statute.
2. Although they are required to act judicially, they perform quasi-
judicial functions.
3. Tribunals are independent and impartial and work without the
influence of Govt.
4. They have the powers of civil courts in certain matters and their
proceeding are considered to the judicial proceedings.
5. Tribunals are required to follow the principles of natural justice in
deciding the cases.
6. Tribunals are not bound to follow the technical rules of the
procedure and evidence prescribed by the Civil Procedure Code
and Evidence Act. But they adopt the procedure which may be
prescribed in the Statute, or may be prescribed by the rules made
under the Statute or may be adopted by the tribunal itself.
7. Tribunals are not courts in the proper sense of term.
DISTINCTION BETWEEN ADMINISTRATIVE TRIBUNAL AND
COURT
All courts are tribunals but the converse need not necessarily be
true. A tribunal possesses some of the trappings of a court, but
not all and therefore, both must be distinguished.
 99

1. A court of law is a part of the traditional judicial system. On the

other hand, an administrative tribunal is an agency created by a
statute and invested as the judicial power.
2. Ordinary civil courts have jurisdiction to try all suits of a civil
nature, excepting those whose cognizance is either expressly or
impliedly barred, tribunals have power to try cases in special
matters statutorily conferred.
3. The mere lack of general jurisdiction to try all cases of a civil
nature does not necessarily lead to an inference that the forum is
tribunal and not a court. A court can also be constituted with
limited jurisdiction.
4. Judges of ordinary courts are independent of the executive in
respect of their tenure.
CONSTITUTIONAL SAFEGUARDS AVAILABLE TO THE CIVIL
SERVANTS IN INDIA BY ART-311
1. Services under the Union and the State Art-308 to 323
2. Doctrine of Pleasure (Art 310)
Service - 308: In a efficient machinery system, civil services are
playing an important rule. A country can not progress without
efficient civil services. So it is essential to protect the public
services as far as possible from political or personal influence.
Recruitment and regulation of conditions of services Art 309:
Art 309 empowered Parliament and State legislature to regulate
the recruitment and conditions of civil services.
Under Art 309 the President and the Governor may make rules for
the regulation of recruitment and conditions of the civil services.
The opening words of Article 309 "Subject to he provisions of this
constitution" make it clear that the conditions of services whether
laid down by constitution or prescribed by rules must conform to
the mandatory provisions of the constitution as laid down for e.g.
in art 310,311 and 320.
Although the words "Conditions of Services" in Art 309 will include
 100

tenure, no rule made under this article can trespass on rights

guaranteed by Art-311.
In Moti Ram Vs N.E. Frontier Rly 2 The court held Rules 148(3)
and 149(3) of the Railway code (Providing for termination of
services of permanent employee by giving them notice for a
period mentioned in that rule) invalid for being violation of Art 311.
Doctrine of Pleasure
Tenure of office of persons serving the Union and the State
Art-310: In England the normal rule is that a civil servant of the
crown holds his office during the pleasure of crown. The service of
that person can be terminated at any time by the crown without
assigning any reason. Crown is not bound by any contract. If the
other word, if a civil servant is dismissed from their services, he
can not claim arrears of salary or damages for premature
termination of his service.
The doctrine of pleasure is based on the Public Policy. The
doctrine has been introduced in Art 310(1). It expressly provides
that all the members of the defence services or the civil services
of Union or all India services hold office during the pleasure of the
President. Similarly members of state services hold their offices
during the pleasure of Governor of the State. But the rule of
English common law was not adopted fully in Art 310.
State of Bihar Vs Abdul Majid3 A civil servant in India can
always sue for arrears of salary.
The rule is qualified by the opening words of Art 310 "except or
expressly provided by the constitution". Thus Art 310 itself places
restrictions and limitations on the exercise of the pleasure and is
further limited by Art 311 (2).

Restriction on doctrine of pleasure

i) The pleasure of the President or Governor must be exercised in
accordance with the procedural safeguards provided by Art 311.
ii) The tenure of the Supreme Court Judges (Art 124). High Court
 101

Judge (Art 218), Auditor-General of India (Art 148(2)), The Chief

Election Commissioner (Art 324), and the Chairman and
members of the Public-Service Commission (Art 317) are not
dependent on the pleasure of the President or the Governor.
iii) The doctrine of pleasure is subject to the Fundamental Rights
(Union of India Vs P.O. More 1962)
Constitutional Safeguards to civil Servants - Art 311: Provides
the following two safeguards to civil servants against any arbitrary
dismissal from their posts-
1. No person holding a civil post under the Union and the States
shall be dismissed or removed by authority subordinate to that by
which he was appointed (Art 311(1)).
2. No person shall be "dismissed", 'removed' or 'reduced' in rank
except after an inquiry in which he has been informed of the
charges against him and given a reasonable opportunity of being
heard in respect of those charge.
1. No removal by subordinate authority -Art- 311(1) says that a
civil servant cannot be dismissed or removed by any authority
subordinate to the authority by which he was appointed.
However Art 311(1) cannot be read as impaling that the removal
must be by the authority who made the appointment or by his
direct superior. It is enough that the removing authority is of the
same or co-ordinate rank as the appointing authority.
In Mahesh Vs State of U.P.4 The person appointed by the
-

Divisional Personnel Officer, EIR, was dismissed by the

Superintendent Power, E.I.R. The court held the removal valid as
both the officer was of the same rank.

2. Reasonable opportunity to defend - Art- 311(2) the other

safeguard which the Constitution affords to a civil servant is that
he shall not be dismissed or removed or reduced in rank except
after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard in
respect of those charges.
 102

Originally, this opportunity to defend was given to a civil servant

at two stages-:-
i) At the enquiry stage - This is in accordance with the rule of
natural justice that no man should be condemned without hearing.
ii) At the punishment stage - when after the inquiry the charges
has been prov d any of three punishment- dismissal, removal
or reduction of rank were given. But the 42nd amendment Art
1976 of the constitution has been abolished the right of the
Govt. Servant to make representation at the punishment stage.
In Khem Chand Vs Union of lndia5 Supreme Court held that
reasonable opportunity under Art- 311 include-
i) An opportunity to deny the servant his guilt and establish his
innocence which can only be done if he is told what the charges
against him are and the allegation on which the charges are
based.
ii) An opportunity to defend himself by cross-examining the witness
produced against him and by examining himself or any other
supporting witness of his defence.
iii) An opportunity to make his representation as to why the proposed
punishment should not be inflicted or imposed on him.
A new dimension of the Principle of Natural Justice has been
added in Union of India Vs Mohd.
Ramzan Khan6-
In that case the court has drawn a
distinction between the disciplinary inquiry
conducted by disciplinary authority and by an inquiry office.
Termination of Services when amount to Punishment: The
protection of Art-311 is available only when the 'dismissal',
'removal' or reduction in rank is by way of punishment.
In Purshoottam Lal Dhingra Vs U.0.1.7 Supreme Court has laid
down two tests to determine whether the termination is by way of
punishment-
1. Whether the servant had a right to hold the post or the rank.
 103

2. Whether the servant has been visited with evil consequences.

If a government servant had a right to hold the post or rank under
the any contract from or under any rule. Governing the service,
then the termination of his service or reduction in rank amount to a
punishment and he will be entitled to the protection of Art-311.
In the above case the appellant was appointed to officiate on a
higher post. After 2 years. The rank of appellant was reduced on
the grounds of reversion would not stand in the way of his again
promotion if in the future his work and conduct justified.
The SC held that the appellant has not right to post as he was
merely officiating in the post and the implied term of such
appointment was terminable at any time on reasonable notice by
the Government. The appellant was not reduced in rank by way of
punishment so he can not claim the protection of Art 311(2).
Reduction of Rank - According to Art 311(3) Reduction of Rank
means reduction from a higher to lower rank or post.
In State of Punjab Vs Kishan Das8- Respondent was a police
constable in Punjab Police. In 1960 the charge of arrogance and
indiscipline was served on him. A departmental inquiry was held
under the Puniab Police rule. The charges have been proved and
an order was issued forfeiting his entire service.
This meant bringing down his salary to rupees 45 pm., which
was the starting point salary fora constable. Supreme Court held
that the order did not amount to the reduction of rank.
In State of Mysore Vs M.K. Godgoli9 The Supreme Court
held that the reversion in this case not amounted to reduction in
rank by way of punishment and hence Art - 311 (2) was
notattached.
Suspension is not punishment: The suspension of a
government servant from service is neither dismissal or
removal nor reduction in rank, therefore, if a government
servant is suspended he cannot claim the constitutional
guarantee of reasonable opportunity (Sukh Bansh Singh Vs
State of Punjab 1962) and where the termination is due to the
 104

abolition of the post held by government-servant for bona fide

reasons Art 311(2) need not be complied with the termination of
services of the government servant. The abolition of post does
not involve 'punishment' at all and therefore the protection of
Art 311(2) is not
available.
Compulsory retirement is simplicity not punishment: A
permanent retirement of a government servant in 'Public Interest'
does not caste a stigma on him and no element of punishment is
involved in it and hence the protection of Art 311(2) will not be
available.
In an Important judgement (Hindustan Times 18th March
2002): Sounding a warning to :Deed wood" in government
employment, The Supreme Court has held that the government
has the absolute right to compulsorily retire an employee if his
conduct becomes untenable to public interest or obstructs the
efficiency of Public Service.
In Shyam Lal Vs State of U.P. 10 The question involved whether
compulsory retirement amounted to removal, dismissal with in the
meaning of Art 311 of Constitution. Supreme Court held that a
compulsory retirement does not amount to dismissal or removal
therefore, does not attract the provisions of Art
311(2). The compulsory retirement under service rule is not
violative of Art 311(2) is it is exercised bonafide and in the public
interest.
In K. Nagaraj Vs State of A.P.11 In this case, The Supreme Court
held that the reduction of age of retirement from 58 to 65 under
the A.P. Public Employment (Regulation of Conditions of service)
ordinance, 1983 was not violation of Art 14 or 16. The retirement
in accordance with a law or rules regulating his conditions of
services does not amount to his removal from service.
In a Significant Judgement - Baikunth Nath Vs Chief Medical
Officer12 The Supreme Court has held that the government can
compulsorily retire its employees without assigning any reason or
fallowing the principles of natural justice.
 105

Art 311 applies to both temporary and permanent servant:

The constitutional guarantee of reasonable opportunity is
available to both permanent and temporary servants.
In Parshootam Lal Dhingra Vs Union of lndia13 Supreme Court
has held that Art 31O in terms, makes no distinction between
permanent and temporary servant or between persons holding
temporary or permanent post in the matter of tenure being
depends upon the pleasure of the President or the Governor, so
does Art 311, make no distinction between the two classes, both
are in its protection and the decisions holding the contrary view
cannot be supported as correct.
In which cases opportunity must be given: If the 2 conditions
are satisfied-
1. The employee is a number of a civil service of the Union or an all-
India service or a civil service of State or holder a civil post under
the Union or the State.
2. Such employee is sought to be dismissed, removed or reduced
in rank.
Exceptions of Art 311(2) - The protection of Article 311(2) for
giving 'reasonable opportunity' is not available in the
following circumstances
1. Where a person is dismissed, or reduced is rank on the ground of
misconduct which has led to conviction or criminal charges.
2. Where it is impracticable to give the civil servant an opportunity to
defend him but the authority taking action against him shall record
the reasons for such action.
3. Where in the interest of the security of State, it is not expedient to
give such an opportunity to civil servant (Art 311, Proviso).
Is Protection of Art 311 available to members of Defence
forces
Protection under Art 311 is available for those who held the 'civil
post' under the Union or the State. These safeguards are not
 106

available to defence forces or even to a civilian employee in

defence service like military engineer etc. The protection of Art
311 is not available to military personal who are governed by
Army Act.
The term 'civil post' is not defined in the constitution but having
regard of Art 310, 311 it appears to have been used in centre-
distinction to defence post.
The term civil post means an appointment or employment on
the civil side of the administration.
Are the Protection available to employees of co-operation or
University - No it was held in Sukhdev Singh Vs Bhagwat
Ram14- That the employees of statutory corporation or
government companies registered under the companies Act the
protection of Art 311.
IMPORTANT QUESTIONS
Q.1. What do you understand by the institution of ombudsman? Is it
desirable and will be effective in India?
Q.2. Write an essay on Public Interest litigation specifically mentioning
its importance in a country like India.
Q.3. Define 'Lokayukt'. Who has the authority to appoint 'Lokayukt'?
What are the functions of a Lokayukt after being appointed?
Q.4. What is the object of Central Vigilance Commission?
Q.5. Lokpal, Lokayuktas and Parliamentary Committees are some of
the Grievance redressal forums to proceed against administrative
faults. Discuss the power and procedure
Q.6. 'PIL' is a tool in the hands of judiciary to facilitate the protection of
the rights of an
Q.7. Public interest litigations is recently evolved device of controlling
administrative faults.