Module 1: Introduction

Introduction to Administrative Law

Administrative law is a branch of public law that is concerned with the procedures, rules, and regulations of a
number of governmental agencies.
Administrative law specifically deals with such administrative agencies’ decision-making capabilities, as they
carry out laws passed by State and federal legislatures.
Administrative law is that body of law which applies for hearings before quasi-judicial bodies, boards,
commissions or administrative tribunals supplement the rules of natural justice with their own detailed rules
of procedure.
Through jurisprudence, common law or case law, these principles have been expanded and refined beyond
their original simplistic design to form distinct bodies of law forming together what the legal system refers to
as administrative law.

Evolution of Administrative Law

Administrative Law in ancient India
 The Rule of Dharma
 The basic Principles of Natural Justice
Administrative Law under the British Rule in India
Many Acts were passed by the British Government for regulating health, morality, transport and labor relations
etc.
Ex:
 The State Carriage Act, 1861 to grant administrative license
 The Bombay Port Trust Act,1879 to establish first Public Corporation
 The Northern India Canal and Drainage Act, 1873 and The Opium Act, 1878 accepted delegated
legislation
 The Indian Explosives Act,1884 to regulate the trade and traffic in explosives
Administrative Law in 20th Century
Social, economic policies of the government had significant impact on private rights of citizens, e.g. planning,
employment, education, health, housing, service, pension, manufacture of goods, etc. It resulted in increase in
delegated legislation and thus AL became a live subject.
During World War – II
The Defense India Act 1939 and its rules conferred ample powers on the executive to interfere with life, liberty
and property of an individual with no judicial control over them.
Administrative Law after Independence
The activities and functions of the government have further increased. Under the ID Act, 1947, the Minimum
the Wages Act, 1948, and the Employment Insurance Act, 1948, important social security measures have been
taken for those employed in industries.
The philosophy of a welfare State has been specifically embodied in the Indian Constitution
Even while interpreting all these Acts and the provisions of the constitution, the judiciary started taking into
consideration the objects and ideals of social welfare.
A welfare state is a concept of government where the state plays a key role in the protection and promotion of
the economic and social well-being of its citizens. It is based on the principles of equality of opportunity,
equitable distribution of wealth, and public responsibility for those unable to avail themselves of the minimal
provisions for a good life. The general term may cover a variety of forms of economic and social organization.
In the strictest sense, a welfare state is a government that provides for the welfare, or the well-being, of its
citizens completely. Such a government is involved in citizens lives at every level. It provides for physical,
material, and social needs rather than the people providing for their own. The purpose of the welfare state is
to create economic equality or to assure equitable standards of living for all.
The welfare state provides education, housing, sustenance, healthcare, pensions, unemployment insurance,
sick leave or time off due to injury, supplemental income in some cases, and equal wages through price and
wage controls. It also provides for public transportation, childcare, social amenities such as public parks and
libraries, as well as many other goods and services. Some of these items are paid for via government insurance
programs while others are paid for by taxes.
The Directive Principles of State Policy is guidelines to the central and state governments of India, to be kept
in mind while framing laws and policies. They are enumerated in part iv of the constitution of India. i.e.
directive principles of state policy. They are the instruments of instructions in the governance of the country.
The directive principles lay down certain economic & social policies to be pursued by the various governments
in India. They are classified as social & economic charter, social security charter& community welfare charter.
These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the
principles laid down therein are considered fundamental in the governance of the country, making it the duty
of the State to apply these principles in making laws to establish a just society in the country. The principles
have been inspired by the Directive Principles given in the Constitution of Ireland and also by the principles
of Gandhism; and relate to social justice, economic welfare, foreign policy, and legal and administrative
matters.
Case Law: Maneka Gandhi v. Union of India- The case involved the refusal by the government to grant a
passport to the petitioner, which thus restrained her liberty to travel. In answering the question whether this
denial could be sustained without a predecisional hearing, the court proceeded to explain the scope and content
of the right to life and liberty. In a departure from the earlier view, the court asserted the doctrine of
substantive due process as integral to the chapter on fundamental rights and emanating from a collective
understanding of the scheme underlying articles 14 (the right to equality), 19 (the freedoms) and 21 (the right
to life). The power the court has to strike down legislation was thus broadened to include critical examination
of the substantive due process element in statutes.
The activities and powers of the government
The enforcement of rule of law and judicial review.
Article 226 empowers the high courts to issue, to any person or authority, including the government (in
appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto, certiorari or any of them.
Article 227 determines that every High Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law
related to armed forces).

The High Court, can, under Article 227 –

 Call for returns from such courts,

  Make and issue general rules and prescribe forms for regulating the practice and proceedings of such
courts.
 Prescribe forms in which books, entries and accounts be kept by the officers of any such courts.
 Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts.

Case Law: Surya Devi Rai vs. Ram Chander Rai- The Supreme Court relied on several constitutions
Judgments of the Hon'ble Apex court, one of which was Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai
and Anr, which laid down scope, power and differences between Article 226 and Article 227. The first and
foremost difference between the two articles is that Proceedings under Article 226 are in exercise of
the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not
original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the
Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article
to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under
Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the
subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors.

Article 32 is referred to as the ‘heart and soul of the constitution’ by Dr Bhim Rao Ambedkar, Article 32 is a
fundamental right envisaged under Part III of the Constitution of India. It is a ‘right to constitutional remedies’
which provides a right to protect other fundamental rights from violation. In other words, if any fundamental
right is violated by the government, then Article 32 empowers the person whose fundamental right has been
violated to approach the Supreme Court for the enforcement of his/her fundamental rights.

Case Law: Ramdas Athawale v. Union of India- It was held that Article 32 is applicable in cases where there
is a question of enforcement of fundamental rights. If the question of enforcement of fundamental rights does
not arise then Article 32 will not be applicable.

Article 136 bestows the Supreme Court discretion to entertain appeals in suitable situations, not otherwise
provided for in the Constitution. The SC may exercise this discretionary power to grant special leave to appeal
any judgment or decree or may refuse to grant the leave since this is not a matter of right. An aggrieved party
can approach the Supreme Court, for clarification of any constitutional or legal issue involved in any civil,
criminal or other type cases, through Article 136. Thus, the nature of this power of the SC is of residuary
nature and its definition is not limited. A study of the SLPs, however, shows that the SC grants leave only in
case of exceptional situations and follows well-established judicial procedures in exercising the discretionary
power.
Special Leave Petition is a huge instrument of the dispensation of justice from the apex court in the country.
However, SLP is a very fluid and flexible provision because of its inherent nature. Consequently, there are
many leave petitions, which tend to choke the SC, but there are plenty which is rejected at the admissions
stage also, which sort of keeps a balance.
PIL- It has not been defined in any Indian statute. However, Courts have interpreted and defined PIL.
Case Law: Janata Dal v. H.S.Chaudhary, [(AIR 1993 SC 892)]- The Hon’ble Supreme Court held that
lexically, the expression ‘PIL’ means a legal action started in a court of law for the enforcement of
public/general interest where the public or a particular class of the public some interest (including pecuniary
interest) that affects their legal rights or liabilities.
PILs are considered to be the most effective as well as the most commonly used judicial tool to safeguard the
environment due to their many advantages including but not limited to speedy results, nominal court fees,
relaxed procedural rules and the wide variety of investigative techniques available to courts like special
committees.

Definition of Administrative Law

John Austin
“Administrative law as one which determines the ends and modes to which the sovereign power shall be
exercised. According to him sovereign power should be either exercised directly by the monarch or entrusted
to subordinate political agents holding a position of trust.”
Bernard Schawartz
“Administrative law to be the law applicable to those administrative agencies which possess adjudicatory
authority of a delegated legislation.”
Sir Ivor Jennings
“Administrative Law is the law relating to the administration. It determines the organization, powers and
duties of the administrative authorities.”
A.V. Dicey
“Administrative Law relates to that portion of a nation’s legal system which determines the legal status and
liabilities of all State officials.”
Wade
“Administrative Law is the law relating to the control of governmental power.”
K.C. Davis
“Administrative Law is the law concerning the powers and procedures of administrative agencies, including
the law governing judicial review of administrative action.”
Garner
“Administrative Law may be described as those rules which are recognized by the courts as law and which
relate to and regulate the administration of Government.”

Sources of Administrative Law

Major Sources
1. Constitution- Various administrative organs derive their powers and functions from the Constitution,
such organs include the President, Ministers, local government authorities etc.
2. Statutes- Most of administrative organs are statutory formed. They derive their powers and functions
from various statutory instruments. Some statutes confer legislative powers, quasi-judicial powers,
powers to maintain law & order and good governance etc.
All these powers have to be exercised lawfully within such limits set by the particular Act of the
Parliament. In that sense statutes become one of the principal sources of administrative law.
3. Judicial decisions- Decisions by the Supreme Court in administrative disputes form one of the major
bases of administrative law. Courts have always intervened in such cases where administrative organs
have acted unlawfully to the extent of injuring or affecting individual rights.
Using their inherent prerogative powers, courts have been a reliable place for a victim to run and get
his respective remedy. (stare decisis - the legal principle of determining points in litigation according
to precedent).
4. Ordinances, Notifications and Circulars- Ordinances are issued by the President (at Union / Federal
level) and Governor (at State level) and are valid for a particular period of time. These ordinances give
additional powers to administrators in order to meet urgent needs. Administrative directions,
notifications and circulars provide additional powers by a higher authority to a lower authority. In
some cases, they control the powers.
 5. Other sources- These include the common law principles, doctrine of equity and such statutes of
general application.
Subsidiary Sources
Books- By prominent jurists and opinions from prominent jurists. Thus, administrative law is based on the
well-known legal maxim ‘ubi jus ibi remedium’ (wherever there is a right, there is a remedy).

Nature of Administrative Law

- The Doctrine of Separation of Powers
- The three of branches of government
- Rule of Law
- Delegated legislation
- Control over delegated legislation
- The Administrative Law is functional
- Administrative functions – preventive steps like law and order, licensing and rate fixing etc.
- Administrative powers and quasi – judicial powers.
- Execution of Laws, collection taxes, conducting elections are also administrative functions.
- The labor problems such as strikes, lock-outs, etc.
- The Administrative Tribunals and Industrial Tribunals do not require the rigid procedure of Evidence
Act and Civil procedure.
- The administrative authorities are empowered to make rules, orders, regulations et. subject to the
permission by Parent Act and Constitution.
- Writs.
- Conflict of interests (Public rights v. Private rights)
As observed by Lord Denning “Properly exercised, the new powers of the executive lead to the welfare State,
but abused they lead to the Totalitarian State.”

Scope of Administrative Law

Administrative Law is a judge-made law. It includes administrative circulars, policy statements, memoranda
and resolutions etc.
AL is a branch of public law in contradistinction to private law. It primarily deals with the relationships of
individuals with the organized power.
AL deals with the organization and powers of administrative agencies and quasi-administrative agencies.
AL includes the study of the existing principles and also the development of certain new principles which
administrative agencies and quasi-administrative agencies must follow while exercising their powers in
relation to individuals, i.e. the PNJ, reasonableness and fairness.
AL primarily concerns itself with the official action which may be –
- rule-making or quasi-legislative action
- rule-decision or quasi-judicial action
- rule-application or administrative action, or
- ministerial action or pure administrative action
One of the main thrusts of the study of AL is on the procedure by which the official action is reached. Such
procedure may have laid down –
- in the statue itself under which the administrative agency has been created
 - in the separate procedure code which every administrative agency is bound to follow
AL also includes within its study the control mechanism which the administrative agencies are kept within
bounds and made effective in the service of the individuals. This control mechanism is technically called the
“review process.” The administrative action may be controlled by –
- courts exercising writ jurisdiction
- courts exercising ordinary judicial powers through suits, injunctions, and declaratory actions
- statutory authorities like Ombudsman, HRC and other investigative agencies
- higher administrative authorities
- public opinion and mass media in the 20th century is also an important control on any administrative
actions
- civil society and interest representations also play an important role in controlling the arbitrary exercise
of public power both at pre-natal and post-natal stages
- “Easy access to justice” also provides an effective check on bureaucratic adventurism in the exercise
of public power. If the access to justice is easy and quick, it may deter administrative agencies from
developing an attitude which has been termed as “fly-now-pay-later.”
- Right to know, right to reply and discretion to disobey also have inherent potentialities of proving
effective, though indirect, in providing a check on administrative behavior.
The study of AL is not an end in itself but a means to an end. The focal point of the study of AL is reconciliation
of power with liberty.

Reasons for growth of Administrative Law

- Radical change in the philosophy of role of the State
- Increasing urbanization
- To meet emergency situations
- Inadequacy of Judicial System (Tribunals is an alternative mechanism)
- Inadequacy of Legislative Process (Delegated legislation is an alternative remedy)
- Scope for experimentation
- Avoidance of technicalities
- Preventive Mechanism
As Freeman says, “inspection and grading of meat answers the consumer’s need more adequately
than does a right to sue the seller after the consumer is injured.”
- Administrative Authorities can take effective steps for the enforcement of preventive measures e.g.
suspension, revocation and cancellation licenses, destruction of contaminated articles etc.

Theories of Administrative Law

Red Light Theory
According to this theory the primary object of AL is to control governmental power. It is based on assumption
that “every kind of power tends to corrupt and absolute power tends to corrupt absolutely.” It has emerged
from a fear of State absolutism.
State regulates and controls various activities of its subjects, there is a very possibility of misuse or abuse of
power. RLT seeks to protect private rights and individual interests. Its objective is to keep government
agencies and administrative authorities within the boundaries of law through judicial control.
Green Light Theory
This theory does not concede arbitrary, unrestricted, or absolute power to administrative authorities. But
whereas the RLT favors judicial control, the GLT puts emphasis on the political process. Control of AAs
under this theory is direct and internal rather than indirect and external.
The inbuilt mechanism with in GLT allows interventions by the State in larger public interest issues ensuring
rights of citizens and the well-being of society as a whole.
This can be achieved through active involvement, positive deliberation, effective consultation, creative
contribution, productive participation, decentralization of power, freedom of information and such other
actions of the administration.
Amber Light Theory
Both the theories have their own merits and pitfalls. In most legal systems, therefore, there is a combination
of two theories. In other words, the right path lies somewhere between the pure “Red” and “Green” light
models, in an ALT.
As observed by Huddlestone, a new relationship has emerged between courts and those who derive their
authority from public law. It is a partnership based on a common goal, viz. fostering highest standards a public
administration.

Evolution of State
Different stages:
- Laissez-faire State
- Social Welfare State
- Modern State
Laissez-faire State
The concept of Laissez - Faire describes environment where transactions between private parties are free from
State intervention, including restrictive regulations, taxes, tariffs and enforced monopolies. The literal
translation of this French phrase is “let it be.”
Social Welfare State
A welfare state has to serve the larger public interest. It denotes a concept of government in which the State
plays a key role in the protection and promotion of the economic and social well-being of its citizens.
The doctrine of ‘parens patriae’ refers to the power of the State to act as a guardian for those who are unable
to take care of themselves.
Modern State
Max Weber defines the modern state as - “A modern state is a system of administration and law which is
modified by State and law and which guides the collective actions of the executive staff; the executive is
regulated by statute likewise, and claims authority over members of the association (those who necessarily
belong to the association by birth) but within a broader scope over all actively taking place in the territory
over which it exercises domination.”
The aim of a modern welfare state is to protect and promote the social and economic welfare of the people.
Principles of equality of opportunity and equitable distribution of wealth, etc., are considered to be some of
the most important roles of a government.

Relationship between Administrative Law and Constitutional Law

The Constitutional Law is always genus whereas Administrative law is a species of the Constitutional Law.
The CL is the supreme and highest law of the Country. AL is subordinate to the CL.
CL deals with various organs of the State. AL is deals with the organs of the State in motion(functional).
CL deals with the structure of the State. AL deals with functions of the state.
CL gives guidelines with regard to the general principles relating to organisation and powers of organs of the
State and their relation b/w citizens and the State. AL deals with the powers and functions of administrative
authorities.
CL gives guidelines about the international relations. AL deals with the powers and functions of administrative
authorities.
CL deals with the general principles of the State pertaining to all branches. AL deals in details with the powers
& functions of administrative authorities, including the civil services, public departments, local authorities
and other statutory bodies exercising administrative powers, quasi- judicial powers etc.
CL demarcates the constitutional status of Ministers and public servants. AL is concerned with the
organisation of the services or the working of the various Govt. departments.
CL imposes certain negative duties on administrators, viz., not to violate the FRs of the citizens and etc. It
also imposes certain positive duties on administrators viz. implementation of social welfare schemes. The
administrators have to follow CL first and next AL.
The CL has complete control over the AL and administrators. The administrators should perform their
functions with utmost obedience to CL. AL is just a subordinate to CL.
The CL gives the power of Supreme Legislation to the Parliament. The AL gives the power of the sub-ordinate
legislation to the Executive, which is too under the control of the Parliament.

Rule of Law
It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC.
Plato wrote, “where the law is subject to some other authority and has none of its own, the collapse of the
state, in my view. Is not far off; but if law is the master of the government and the government is its slave, then
the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”
Aristotle also endorsed the concept of Rule of law by writing that “law should govern and those who are in
power should be servants of the laws.”
The term “Rule of Law” is derived from the French phrase ‘la principe de legalite’ (the principle of legality)
which refers to a government based on principles of law and not of men. In this sense the concept of ‘la
principe de legalite’ was opposed to arbitrary powers.
Meaning of Rule of Law
According to Oxford Advance Learner’s Dictionary, “Rule of law means the situation in which all the citizens
as well as the state are ruled by the law.”
According to Black’s Law Dictionary, “Rule of law” means legal principles of day to day application,
approved by the governing bodies or authorities and expressed in the form of logical proposition.”
Sir Edward Coke- the Chief Justice in James, I’s reign was the originator of this concept. In a battle against
the King, he maintained successfully that, “the King should be under God and the Law, and he established
the supremacy of the law.”
A.V. Dicey– Three Principles of Rule of Law
- Supremacy of Law
- Equality before Law
- Predominance of Legal spirit
1. Supremacy of Law
a) Supremacy of Law is the central and most important feature of Common Law.
b) Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary
power.
c) English men are ruled by the Rule of Law and Law alone.
d) A man can be punished by the Rule of Law and by nothing else.
e) Wade says the rule of law requires that the Government should be subject to the law, rather than the law
subject to the Government.
2. Equality before Law
a) There must be equality before law or equal subjection of all classes to the ordinary law.
b) There is no need for extraordinary tribunals or special courts to deal with cases of Government and its
servants.
c) Dicey accepted that administrative authorities are exercising ‘judicial’ functions though they are not
‘courts’.
3. Predominance of Legal spirit
a) Rights are the result of judicial decisions in England.
b) The rights are result of court judgments rather than from being enshrined in the Constitution.
c) The Constitution is a consequence of the rights of the individuals.
d) The Courts are the guarantors of the liberty.
e) Rights would be secured more adequately if they were enforceable in courts rather than just being written
in the Constitutional document.
f) Mere incorporation in a written constitution is of no use in the absence of effective remedies of protection
and enforcement.
Advantages:
- It helped to make administrative authorities confine to their limits.
- It became a yard stick to test administrative actions.
- It helped for the recognition and the growth of the concept of administrative law.
Disadvantages (Criticism):
- Dicey thesis was not completely accepted even in his era.
- Even at this time, there was a long list of statutes which permitted the exercise of discretionary powers
of the Crown which could not be called to the court.
- Dicey instead of not just disallowing arbitrary power has also insisted that administrative authorities
should not be given discretionary powers.
- Dicey failed to distinguish between ‘arbitrary powers’ to ‘discretionary powers’.
- He misunderstood the real nature of ‘droit administratif’ which was successful in France.
Rule of Law under the Indian Constitution
- Preamble
- Article 13- Any law is found in violation of any provision of the Constitution is declared as invalid.
- Article 13(1)- All laws in force in the territory of India immediately before the commencement of the
Constitution, in so far as they are inconsistent with the provision of Part-III, shall, to the extent of such
inconsistency, be void.
- Article 13(2)- State shall not make any law which takes away or abridges the fundamental rights and
any law made in contravention of this clause, shall, to the extent of the contravention, be void.
- Article 14- Equality before law” implies the absence of any special privilege in favour of any
individual. It ensures that all are equal before the law. “Equal protection of law” implies equal
protection of all alike. In the same situation and under like circumstances.
- Article 14 forbids class legislation but it doesn’t forbid classification which rests upon reasonable
grounds of distinction.
Exceptions:
- Article 361 - the President or the Governor of a State shall not be answerable to any court for the
exercise and performance of duties of his office.
- Art 361(2) – “no criminal proceedings shall be instituted or continued against the President or the
Governor of any court during his term of office.”
- Article 361(3)- “no process for the arrest or imprisonment of the President or the Governor of a State
shall issue any Court during term of his office.”
- Article 361(4) – “no civil proceedings in which the relief is claimed against the President or of a State
Governor, shall be instituted during his term of office.”
- Foreign diplomats are also allowed immunity from the jurisdiction of the courts.
- Art.121-The Judges have also been allowed some special privileges and protection.
- Art.19- It will be valid only if the following conditions are fulfilled-
a) Restrictions have been imposed by the State as defined in Article 12
b) Restrictions have been imposed by a law and the law is a valid law. The Executive cannot
impose the restriction without there being a law authorizing it to do so.
c) Restrictions must be on any of the grounds mentioned in clauses (2) to (6) of Art.19.
d) Restrictions must be reasonable.
- Article 20- Art.21(1) “no person shall be convicted of any offence except for violation of a law in force
at the time of the commission of the offence.
- Article 20(2)- “no person shall be prosecuted and punished for the same offence more than once.”
- Article 20(3)- “no person accused of the offence shall be compelled to be witness against himself.”
- Article 21- guarantees to all persons (citizens and non-citizens) the right to life and personal liberty. It
provides that “no person shall be deprived of his life or personal liberty except according to the
procedure established by law.”- Maneka Gandhi v. Union of India (AIR 1978 SC 597)
- Article 265 – “no tax shall be levied or collected except by authority of law.”
- Article 300A - “no person shall be deprived of his property save by authority of law. A person cannot
be deprived of his property merely by the executive order or executive direction.” (44th amendment,
1978)
Case Law: Kesavananda Bharati v. 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.
Case Law: Maneka Gandhi v. Union of India (1978)- the Supreme Court declared that Art.14 strikes against
arbitrariness.
Case Law: Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)- Art.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 SC declared Art.329-A as invalid since it abridges the Basic Structure of
the Constitution.
“The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government
in the sense of excluding arbitrary official action in any sphere. It is an expression to give reality to something
which is not readily expressible.”
Case Law: A.D.M. Jabalpur v. Shivakant Shukla (AIR 1976 2 SCC 521) (popularly known as ‘Habeas Corpus’
case)- The question before SC was, whether there was any rule of law in India apart from Art.21 of the
Constitution. The SC by majority held that there is no rule of law other than the Constitutional rule of law.
Art.21 is our rule of law. If it is suspended, then there is no rule of law.
Case Law: Bachan Singh v. State of Punjab (AIR 1980 SC 898) (Popularly known as ‘Death Penalty Case’)-
“The rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The
rule of law excludes arbitrariness, its postulate is ‘intelligence without passion’ and reason free from desire.
Wherever we find arbitrariness or unreasonableness, there is denial of the rule of law.”
Case Law: Lakshman Singh v. State of Bihar (Criminal Appeal No. 606 of 2021)- The SC held that democracy
and free elections are a part of the basic structure of the Constitution. It is also further observed that the election
is a mechanism which ultimately represents the will of the people. The essence of the electoral system should
be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or
bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy.
Nobody can be permitted to dilute the right to free and fair election.
Preservation and Enforcement of Rule of Law
Article 141: The law declared by the Supreme Court shall be binding on all courts except Supreme Court
(Art.137 review of judgment or order of the SC itself) within the territory of India.
Article 142: The SC, in the exercise of its jurisdiction may pass such decrees or make such orders as is
necessary for doing complete justice in any cause or matter pending before it. Any decree so passed or order
so made shall be enforceable throughout the territory of India.
Article 144: All authorities (civil or judicial) in the territory of India, shall act in aid of the SC. The authorities
which do not comply with its direction, shall be liable for contempt of Court.
Article 226 empowers the high courts to issue, to any person or authority, including the government (in
appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto, certiorari or any of them.
Article 227 determines that every High Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law
related to armed forces).

The High Court, can, under Article 227 –

 Call for returns from such courts,

 Make and issue general rules and prescribe forms for regulating the practice and proceedings of such
courts.
 Prescribe forms in which books, entries and accounts be kept by the officers of any such courts.
 Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts.

Case Law: Surya Devi Rai vs. Ram Chander Rai- The Supreme Court relied on several constitutions
Judgments of the Hon'ble Apex court, one of which was Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai
and Anr, which laid down scope, power and differences between Article 226 and Article 227. The first and
foremost difference between the two articles is that Proceedings under Article 226 are in exercise of
the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not
original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the
Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article
to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under
Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the
subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors.

Article 32 is referred to as the ‘heart and soul of the constitution’ by Dr Bhim Rao Ambedkar, Article 32 is a
fundamental right envisaged under Part III of the Constitution of India. It is a ‘right to constitutional remedies’
which provides a right to protect other fundamental rights from violation. In other words, if any fundamental
right is violated by the government, then Article 32 empowers the person whose fundamental right has been
violated to approach the Supreme Court for the enforcement of his/her fundamental rights.

Case Law: Ramdas Athawale v. Union of India- It was held that Article 32 is applicable in cases where there
is a question of enforcement of fundamental rights. If the question of enforcement of fundamental rights does
not arise then Article 32 will not be applicable.

Article 136 bestows the Supreme Court discretion to entertain appeals in suitable situations, not otherwise
provided for in the Constitution. The SC may exercise this discretionary power to grant special leave to appeal
any judgment or decree or may refuse to grant the leave since this is not a matter of right. An aggrieved party
can approach the Supreme Court, for clarification of any constitutional or legal issue involved in any civil,
criminal or other type cases, through Article 136. Thus, the nature of this power of the SC is of residuary
nature and its definition is not limited. A study of the SLPs, however, shows that the SC grants leave only in
case of exceptional situations and follows well-established judicial procedures in exercising the discretionary
power.
Special Leave Petition is a huge instrument of the dispensation of justice from the apex court in the country.
However, SLP is a very fluid and flexible provision because of its inherent nature. Consequently, there are
many leave petitions, which tend to choke the SC, but there are plenty which is rejected at the admissions
stage also, which sort of keeps a balance.

Doctrine of Separation of Powers

The Doctrine of Separation of powers was originated by Aristotle and developed by John Locke (‘Second
Treatises of Civil Government 1689), and Montesquieu (‘The Spirit of the Laws’ 1748).
Montesquieu- Theory of Separation of Powers
- The main object as stated by Montesquieu in the doctrine of separation of power is that ‘there should
be government of law rather than having will and whims of the official’.
Wade and Phillips-
- The same persons should not form part of more than one of the organs of the governments, e.g.,
Ministers should not be responsible to the Parliament.
- One organ of the government should not control or interfere with the exercise of its functions by
another.
- One organ of the government should not exercise the functions of another.

Lord Acton- “Every power tends to corrupt and absolute power tends to corrupt absolutely.”
If Legislature, Executive and Judiciary in one person- Monarch, Autocracy, Tyranny. (e.g. Louis XIV in
France, Hitler, Saddam Hussein, Musharraf, Md. Gadhafi).
Blackstone- “If legislative, executive and judicial functions were given to one man, there was an end of
personal liberty.”
Merits:
- The Doctrine of Separation of Powers had tremendous impact on the development of administrative
law and functioning of the governments.
- Madison: “The accumulation of all powers, legislative, executive and judicial in the same hands,
whether of one, a few or many and whether hereditary, self-appointed or elective may justly be
pronounced the very of tyranny.”
- The Constituent Assembly of France declared in 1789 that there would be nothing like a Constitution
in the country where the DSP was not accepted.
Defects:
- There was no separation of powers under the British Constitution. At no point of time, this doctrine
was adopted in England.
- Donoughmore Committee: “In the British Constitution there is no such thing as the absolute separation
of the legislative, executive and judicial powers.”
- Prof. Ulman: “England was not the classic home of separation of powers.”
- Woodrow Wilson: “The trouble with this theory is that Government is not a machine, but a living
thing. No living thing can have its organs offset against each other as checks, and live.”
- Justice Frankfurter: “Enforcement of a rigid conception of separation of powers would make modern
Government impossible.”
- The modern interpretation of the DSP means that discretion must be drawn between ‘essential’ and
‘incidental’ powers. 8. Fundamental object of the Montesquieu DSP was liberty and freedom of an
individual, but that cannot be achieved by mechanical division of functions and powers.
Importance:
International Congress of Jurists held in New Delhi in 1959: “An independent judiciary is an indispensable
requisite of free society under the Rule of Law. Such independence implies freedom from the executive or the
Legislature with the experience of judicial function.”
The most important aspect of the DSP is judicial independence from administrative discretion.
Theory of Separation of Powers in U.S.A
a) Article I – The legislative powers are vested in the Congress.
b) Article II - The executive powers are vested in the President.
c) Article III - The judicial powers are vested in the Judiciary.
d) Jaffe and Nathanson: “The division of our Government into three great establishments is an indisputable
fact – writ large and clear in the basic documents.”
e) Jefferson: “The concentration of legislative, executive and judicial powers in the same hands is precisely
the definition of despotic Government.”
Theory of separation of powers in England
As a matter of fact, at no point of time was this doctrine accepted in its strict sense in England. In reality the
theory Integration of Powers has been adopted in England.
Theory of Separation of powers in India
Case Law: Ramjawaya Kapoor v. State of Punjab (AIR 1955 SC 549)-
Facts: Nationalization of publication, printing and selling of textbooks by the Punjab government.
Issues:
i) Executive could not function without any law for that purpose
ii) Violation of Article 19(1)(g)
Held: Both contentions raised by the petitioners were rejected by the Court.
Mukherjea J.: “The Indian Constitution has not indeed recognised the DSP in its absolute rigidity but the
functions of the different parts or branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our constitution does not contemplate assumption, by one organ or
part of the State, of functions that essentially belong to another.”
Case Law: Golak Nath v. State of Punjab (AIR 1967 SC 1643)-
Subba Rao J. observed: “The Constitution brings into existence different constitutional entities, namely, the
Union, the States and the Unions Territories. It creates three major instruments of power, namely, the
Legislature, the Executive and Judiciary. It demarcates their jurisdiction minutely and expects them to exercise
respective powers without overstepping their limits. They should function within the spheres allotted to them.
Case Law: I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861)-
Facts: This case arose when The Gudalur Janmann Estates (Abolition and Conversion into Ryotwari), Act,
1969 (the Janman Act), that endowed forest lands in the Janman estates in the State of Tamil Nadu, which
was struck down by the Supreme Court in Balmadies Plantations Ltd and Anr. v. State of Tamil Nadu (1972)
2 SCC 133) “as the same was not found to be a measure of agrarian reform protected under Article 31-A of
the Constitution.” The Janman Act was inserted in the Ninth Schedule through Thirty-Fourth Amendment of
the Constitution.
Issue: Whether after 24.04.1973 during which the Basic Structure Doctrine was propounded in the landmark
judgment of Keshavananda Bharti v. State of Kerala, can the Parliament make legislations immune by
inserting them in the Ninth Schedule and thereby restraining it from the purview of judicial review under
Article 31-B and, provided that, what would be its impact on court’s power for judicial review?
Held: The SC held that the constitutional validity of the ninth schedule laws was to be judged by the direct
impact and effect test, i.e., rights test, according to which it was not the form of the law rather the effect of
such law which would act as the determinative factor and that It would be for the court to decide whether such
interference was justified and whether it amounted to violation of basic structure doctrine.
Case Law: Supreme Court v. Union of India {W.P No (Civil)- 13 of 2015}(NJAC Case)-
After that 99th constitutional amendment was introduced in the Parliament by which the National Judicial
Appointments Commission (NJAC) was all set to remove the collegium system for appointment of judges in
higher courts. A new Articles 124(A), 124(B) and 124(C) was added to the constitution. It comprised of CJI,
two other senior most judges of SC, the Union Minister of Law and Justice and two eminent persons
(nominated by a committee consisting of the CJI, Prime Minister of India, and leader of opposition in Lok
Sabha and in case there is no leader of opposition then the leader of single largest party in Lok Sabha).
Issues: Parliament enacted the NJAC Act, which also received the assent from the President 31.12.2014. The
same was also brought into force, with effect from 13.04.2015. The above amendment was challenged through
several petitions which were collectively heard.
1) The first and foremost issue is how the judges of the higher courts i.e. the High Court and the Supreme
Court should be selected?
2) Whether the 99th amendment is ultra vires of the constitution as it obliterate the basic structure of the
constitution?
3) Whether judicial review in this case is correct?
Held: This verdict is not only about the appointment of the judges by the judges, but the independence of the
Indian judiciary. A five-member constitutional bench of the Supreme Court with ratio of 4:1 gave a landmark
judgment which declared the 99th amendment unconstitutional and rendered National Judicial Appointments
Committee nugatory.

Droit Administratif
Meaning
“Droit Administratif” can be defined as a body of rules which determine the organisation and the duties of
public administration which regulate the relations of the administration with citizens of the State.
This is a French legal system, known as Droit Administratif, there are two types of laws and two sets of courts
independent each other. Whereas ordinary courts administer ordinary civil law between subjects and subjects,
and administrative courts administer the between the subject and the State.
An administrative authority or official is not subject to the jurisdiction of ordinary civil courts exercising
powers under the civil law in disputes b/w private individuals. All claims and disputes in which theses
authorities or officials are parties fall outside the scope of the jurisdiction of ordinary civil courts and they are
dealt with and decided by special tribunals. It was regularly put into practice by Napoleon in the 18th century.
Three rules
1. Rules dealing with administrative authorities and officials: These relate to appointment, dismissal,
status, salary and duties etc.
2. Rules dealing with the operation of public services to meet the needs of citizens: These services may
be operated either wholly by public officials or under their supervision or they may assist private
agencies to provide public utility services.
3. Rules dealing with administrative adjudication: If injury is done to a private citizen by the
administration, the matter would be decided by the administrative courts. “Conseil d’Etat” is the
highest administrative Court in France.

Classification of Administrative functions

1. Legislative functions: rules, regulations, bye-laws etc.
Scwartz: “If particular function is termed ‘legislative’ or rule-making’ rather than ‘judicial’ or ‘adjudication’,
it may have substantial effects upon the parties concerned. If the function is treated as legislative in nature,
there is no right to a notice and hearing unless a statute expressly requires them.”
e.g.
o Fixation of price
o Declaration of a place to be market yard
o Imposition of tax
o Establishment of Municipal Corporation under the statutory provision
o Extension of limits of a town area committee etc. are held to be legislative functions.

2. Quasi – Judicial functions:

The word ‘Quasi’ means ‘not exactly’. An authority is described as ‘quasi-judicial’ when it has some of the
attributes or trappings of judicial functions, but not all.
A quasi –judicial decision is nearer the administrative decision in terms of its discretionary element and nearer
the judicial decision in terms procedure and objectivity of its end-product.
e.g.
o Disciplinary proceedings against students.
o Dismissal of an employee on the ground of misconduct.
o Confiscation goods.
o Cancellation of examinations.
o Determination of citizenship
o Cancellation, suspension, revocation of licence etc.

3. Administrative functions:
Case Law: Ramjawaya Kapoor v. State of Punjab (AIR 1955 SC 549)- Mukhrjea J, CJ: “It may not be possible
to frame an exhaustive definition of what executive functions means and implies. Ordinarily, the executive
powers connote the residue of governmental functions that remain after legislature and judicial functions are
taken away.”
e.g.
o An order of preventive detention.
o An order of acquisition or requisition of property.
o An order setting up a commission if inquiry.
o An order granting sanction to prosecute a public servant.
o Appointment of Arbitrator by Chief Justice or his nominee etc.

Distinction b/w Legislative & Judicial functions

Legislative Functions-
1. Law-making is the legislative function.
2. The Parliament and State Legislative Assembly make the laws.
3. Laws are the result of legislative function and are applicable to all.
4. Legislation is a new source of law.
5. It allows division of labour. Therefore, it increases efficiency.
6. Delegation and sub-delegation are found only in legislative functions.
7. Anticipation is the advantages of legislation. It foresees the consequences of certain and systematic.
8. Legislation is made for future. However, in rare cases, laws can be made enforceable with retrospective
dates. It creates new rights and liabilities.
9. Legislative function is complete, certain and systematic.
10. It creates new rights and liabilities
Judicial functions-
1. Interpretation is the judicial function.
2. The higher courts interpret such laws.
3. Judgment is the result of judicial function and is applicable only to the parties concerned in majority
cases.
4. Judicial function is also a source of law, but comes next to the legislation.
5. It interprets the minute’s points of man’s thoughts and applies them into the cases.
6. Judge-made law is the creation of judicial function.
7. Anticipation is quite inconsistent with judicial function.
8. Judiciary inquires past and present.
9. Judicial function differs from case to case. It goes into minute things, whereas legislative function goes
into general ways.
10. It determines the existing rights and liabilities. It cannot create new rights
Distinction b/w Administrative &Legislative functions
Administrative Functions-
1. The executive has only delegated legislative powers.
2. The legislative power of executive is flexible.
3. It functions according to its present day needs.
4. The legislative order made by executive is supplement to the supreme legislation, but cannot supplant
it.
5. If a legislation made by administrative is against the FRs and against the PNJ, such legislation can be
quashed by Courts by writ of Certiorari.
6. Administrator has to give reasons for their decisions to the parties concerned and mainly to their
superior officers.
7. All administrative action need not be published.
8. If an exemption is made in favour of an individual, it is administrative in nature.
Legislative functions-
1. The Parliament is the supreme legislative power.
2. The legislative power of the Parliament is rigid.
3. It looks to future.
4. The legislative made by Parliament and State Legislatures always superior to the administrative
legislation.
5. A legislation made by the Parliament cannot be interfered by Courts. The SC, in certain cases, is
empowered to quash the provisions of the Acts, if such provisions are against the FRs.
6. The legislation need not give reasons. However, in every Act, the objects and reasons are explained.
7. All legislations shall necessarily, be published.
8. If an exemption is made in favour of class of people, it is legislative in nature.

Distinction b/w Judicial & Quasi-judicial functions

Judicial Functions-
1. As lis inter partes (a dispute b/w two parties) is an essential characteristic feature of judicial function.
2. The Rules of procedure i.e. Rules of Evidence, CPC, etc. are strictly followed.
3. The evidence shall be taken on oath.
4. The court fee, as per rules, is required to be paid.
5. The doctrines of precedents, stare decisis, etc. shall strictly be followed.
6. No man shall be judge in his own case.
7. The Court is the real forum of judicial proceedings.
Quasi-judicial functions-
1. A lis inter partes is not an essential characteristic feature of quasi-judicial function.
2. The Rules of Evidence, CPC., CrPC., etc. are not strictly followed.
3. The evidence is not taken on oath.
4. The Court fee is not required to be paid.
5. These doctrines are not followed strictly.
6. Sometimes, it may be relaxed here.
7. It is only a trapping of a Court, but in reality, it is not a court.
Distinction b/w Administrative & Quasi – judicial function
Administrative Functions-
1. The decision of a administrative function may positively affect upon the person.
2. An administrative action cannot be challenged before the Court.
3. Administrative function decides the matter subjectively.
4. An ordinary administrative function does not require such duty to act judicially.
5. Purely administrative order does not require to give reasons.
Quasi-judicial functions-
1. The decision of quasi-judicial function may adversely affect upon the person.
2. A quasi-judicial decision can be challenged before the superior court and can be rectified by the writ
of Certiorari, Prohibition etc.
3. It decides matters objectively.
4. An administrative officer must have a duty to require such duty to act judicially then only it becomes
quasi-judicial function.
5. A quasi-judicial decision should have reasons.