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NOTES CUM COURSE MATERIAL FOR CALICUT UNIVERSITY

BBA LL.B / B.Com LLB COURSE
Compiled By :
ANOOP CHANDRAN S
Seventh Semester BBA LLB (Hons.), Nehru Academy of Law,
Palakkad
In association with Juripedia
ADMINISTRATIVE LAW
[Calicut University BBA LLB (Hons.) Course Study Material]
SEMESTER 04 (2011 Syllabus Year)
August 2022
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CALICUT UNIVERSITY B.B.A. LL.B
(Hons.) NOTES CUM STUDY
MATERIAL
C.L. 9. ADMINISTRATIVE LAW
CORE COURSE
SEMESTER 04
B.B.A LL.B (Hons.) Course
2022
Compiled
Typed and Page Set By :
ANOOP CHANDRAN S
5S7, BBA LLB(Hons.), Nehru Academy of
Law, Palakkad, Kerala
[email protected]
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Sent your feedback and suggestions at:

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CONTENTS
Sl No. Topic Page No.

1 Section I General 1-34
2 Section II – Delegated Legislation 35-65
3 Section III – Statutory Tribunals 66-71
4 Section IV – Principle of Natural 72-82
Justice
5 Section V – Lokpal and Lokayuktha 83-91
PREFACE
For the sake of convenience of study the entire syllabus is

divided into five sections viz. Under Each section, every effort
is made to include the contents as specified in the syllabus.
Every topic is described in a comprehensive manner along with
sufficient case laws as provided.
SYLLABUS
( Calicut University BBA LLB (Hons.) Course 2011 Syllabus Year)
CORE COURSE
C L 9 ADMINISTRATIVE LAW
1. Meaning - content and growth of administrative law in India -

Rule of law and Constitution -Doctrine of separation of powers. The
rule making, adjudicating and pure administrative functions.
2. Delegated Legislation - concept, procedure and validity.

Administrative decision making and principles of natural justice -
Evolution and importance -–administrative discretion- doctrine of
fairness. Judicial review of administrative action.
3. Statutory tribunals – enquiries- Lokpal and Lokayuktha.
4. Privileges and liabilities of the administration - Concept of

governmental privilege - open Government and right to information
-promissory estoppel.
5. Growth of local self government institutions -Government and

Parliamentary control over them.
Calicut University B.B.A LL.B / B.Com LLB Study Notes
SECTION I
GENERAL
Topic 1. Administrative Law : Introduction

Administrative Law is, in fact, the body of those which rules regulate
and control the administration. Administrative Law is that branch of
law that is concerned with the composition of power, duties, rights
and liabilities of the various organs of the Government that are
engaged in public administration. Under it, we study all those rules
laws and procedures that are helpful in properly regulating and
controlling the administrative machinery. There is little convergence
of opinion regarding the definition/conception of administrative law.
One of the main reason being that there has been tremendous
increase in administrative process and it is impossible to attempt any
precise definition of administrative law, which can cover the entire
spectrum of administrative process.
1.1. Definition of Administrative Law :
 Austin has defined administrative Law. As the law,

which determines the ends and modes to which the sovereign
power shall be exercised. In his view, the sovereign power shall be
exercised either directly by the monarch or directly by the
subordinate political superiors to whom portions of those are
delegated or committed in trust.
 Holland regards Administrative Law
‚one of six divisions of public law‛.
 In his famous book ‚Introduction to American Administrative Law
1958‛, Bernard Schawartz has defined Administrative Law as
‚the law applicable to those administrative agencies which possess
of delegated legislation and ad judicatory authority.”
 Jennings has defined Administrative Law as
‚the law relating to the administration. It determines the
organization, powers and duties ofadministrative authorities.”
Dicey in 19th century defines it as.
Firstly, portion of a nation’s legal system which determines the legal

statues and liabilities of all State officials.
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Secondly, defines the right and liabilities of private individuals in

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their dealings with public officials.
Study Notes on Administrative Law [Semester 04]

Compiled By : Anoop Chandran S, 5S7, Nehru Academy of Law, Palakkad
Thirdly, specifies the procedure by which those rights and liabilities

are enforced.
This definition suffers from certain imperfections. It does not cover

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several aspects of administrative law, e.g. it excludes the study of
several administrative authorities such as public corporations which
are not included within the expression ‚State officials,‛ it excludes the
study of various powers and functions of administrative authorities
and their control. His definition is mainly concerned with one aspect
of administrative. Law, namely, judicial control of public officials.
In the view of Friedman, Administrative Law includes the following.
 The legislative powers of the administration both at common

law and under a vast mass of statutes.
 The administrative powers of the administration.
 Judicial and quasi-judicial powers of the administration, all of
them statutory.
 The legal liability of public authorities.
 The powers of the ordinary courts to supervise the
administrative authorities.
A careful perusal of the above makes it clear that Administrative Law

deals with the following problems:
1) Who are administrative authorities?

2) What is the nature and powers exercised by administrative
authorities?
3) What are the limitations, if any, imposed on these powers?
4) How the administration is kept restricted to its laminose?
5) What is the procedure followed by the administrative
authorities?
6) What remedies are available to persons adversely affected by
administration?
1.2. Growth of Administrative Law
Thus the concept of administrative law has assumed great importance

and remarkable advances in recent times. There are several principles
of administrative law, which have been evolved by the courts for the
purpose of controlling the exercise of power. So that it does not lead
to arbitrariness or despotic use of power by the instrumentalities or
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agencies of the state. During recent past judicial activism has become

Compiled By : Anoop Chandran s, 5S7, Nehru Academy of Law, Palakkad
very aggressive. It was born out of desire on the part of judiciary to

usher in rule of law society by enforcing the norms of good
governance and thereby produced a rich wealth of legal norms and
added a new dimension to the discipline administrative law
Administrative law has been considered to be the most outstanding

legal development of the 20th century. However it does not mean,
that there was no administrative law in any country before the 20th
century. Being related to public administration, administrative law
should be deemed to have been in existence in one form or another
in every country having some form of government. It is as ancient as
the administration itself as it is a concomitant of organized
administration.
The opening statement signifies that administrative law has grown

and developed tremendously, in quantity, quality and a relative
significance, in the 20th century that it has become more articulate
and definite as a system in Democratic countries that it has assumed
a more recognizable form in the present century so much so that it
has come to be identified as a branch of public law by itself, distinct
and separate from Constitutional law, if its subject matter is of
independent study and investigation in its own right then rapid
growth of administer law in modern times is the direct result of the
growth of administrative powers and functions.
Earlier the state was characterized as the law and order state and its
role was conceived to be negative as its interest extended primarily to
defending the country from external aggression, maintaining law and
order within the country, dispensing justice to its subjects and
collecting a few taxes to finance these activities. It was an era of free
enterprise and minimum governmental responsibility and functions.
The management of social and economic life was not regarded as
government responsibility. This laissez Faire doctrine resulted in
human misery.
But all the things changed with the advent of independence. A

conscious effort is made to transform this country into a welfare state.
It can be seen ingrained in the preamble to Indian Constitution and
the directive principles of state policy itself. The emergence of the
social welfare concept has affected the democracies very profoundly.
It has led to state activism. This resulted in a phenomenal increase in
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the area of state operation it has taken over a number of functions

which were previously left to private enterprise. The state today

provides every aspect of human life, the functions of a modern state
may broadly be placed into five categories, the state as
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 protector,
 provider,
 entrepreneur,
 economic controller and
 arbitrator.
1.2.1. Reasons for the Growth of Administrative Law
Some of the main reasons or factors influenced for the growth and
development of administrative law are:
1. There is a radical change in the philosophy as to the role

played by the State. The negative policy of maintaining 'law
and order' and of 'laissez faire' is given up. Adopted concept
of welfare and public policy.
2. Urbanization - Due to the Industrial Revolution in England
and other countries and due to the emergence of the factory
system in our country, people migrated from the countryside
to the urban areas. As a result of which there arose a need for
increase in providing housing, roads, parks, effective drainage
system etc. Legislations were enacted to provide all these
basic facilities and accordingly administrative authorities were
required to make rules and regulations, frame schemes for
effective infrastructure and facilities which ultimately lead to
the growth of administrative law.
3. To meet Emergency Situations – Enacting legislations,
getting assent from the President is all a lengthy process,
whereas it is very easy and quick to frame schemes and rules
to meet any exigency that arise in a locality. Due to the
flexibility of making the rules, obviously there is a constant
growth of administrative law making in the country.
4. The judicial system proved inadequate to decide and settle
all types of disputes. It was slow, costly, inexpert, complex and
formalistic. It was already overburdened, and it was not
possible to expect speedy disposal of even very important
matters, e.g. disputes between employers and employees,
lockouts, strikes, etc. These burning problems could not be
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solved merely by literally interpreting the provisions of any

statute, but required consideration of various other factors

and it could not be done by the ordinary courts of law.
Therefore, Industrial Tribunals and Labour Courts were
established, which possessed the techniques and expertise to
handle these complex problems.
5. The legislative process was also inadequate. It had no time
and technique to deal with all the details. It was impossible for
it to lay down detailed rules and procedures, and even when
detailed provisions were made by the legislature, they were
found to be defective and inadequate, e.g., rate
Today in India, the administrative process has grown so much that it

will not be out of place to say that today we are not governed but
administered. In this context, the Law Commission of India rightly
observed the Rule of law and Judicial review acquire greater
significance in a welfare state. The vast amount of legislation which
has been enacted during the last three years by the union and states,
a great deal of which impinges in a variety of ways on our lives and
occupations. Much of it also confers large powers on the executive.
The greater, therefore, is the need for ceaseless enforcement of the
Rule of law, so that the executive may not, in a belief in its monopoly
of wisdom and its zeal for administrative efficiency, overstep the
bounds of its power and spread its tentacles into the domains, well
the citizen should be free to enjoy the Liberty guaranteed to him by
the Constitution.
Topic 2. The Rule of Law (നിയമ വാഴ്)ച

One of the basic principles of the English Constitution is the Rule of
law. This doctrine is accepted in the US and Indian Constitution. The
entire basis of administrative law is the doctrine of rule of law. Sir
Edward Coke, 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 against the executive. Dicey developed this
theory of Coke in his classic work the Law and the Constitution
published in the year 1885.
The concept of Rule of Law can be traced from the time of the
Romans, who called it ‘Just Law’- Jus Naturale, to the Medieval period
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where it was called the ‘Law of God.’ The social contractualists, such
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as Hobbes, Locke and Rousseau, called the Rule of Law as the

Contract law or Natural Law and the modern man calls it as Rule of
law.
‚Rule of law‛ is to be understood neither as a ‚rule‛ nor a ‚law‛. It is

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generally understood as a doctrine of ‚State political morality‛ which
concentrates on the rule of law in securing a ‚correct balance‛
between ‚rights‛ and ‚powers‛, between individuals and the state in
any free and civil society. This balance may be drawn by ‚law‛ based
on freedom, justice, equality, and accountability. Therefore, it infuses
law with moral qualities. ‚Rule of proper law
The Expression ‚ Rule of Law‛ plays an important role in the

administrative law. It provides protection to the people against the
arbitrary action of the administrative authorities. The expression ‘rule
of law’ has been derived from the French phrase ‘la Principle de
legality’. i.e. a government based on the principles of law. In simple
words, the term ‘rule of law, indicates the state of affairs in a country
where, in main, the law rules. Law may be taken to mean mainly a rule
or principle which governs the external actions of the human beings
and which is recognized and applied by the State in the
administration of justice.
Rule of law Embodies the doctrine of supremacy of law. It is a basic

and fundamental necessity for a disciplined and organized
community.
2.1. Dicey’s Concept of Rule of Law
Dicey who was an individualist wrote about the concept of the Rule of
law at the end of the golden Victorian era of laissez-faire in England.
That was the reason why Dicey’s concept of the Rule of law
contemplated the absence of wide powers in the hands of
government officials. According to him, wherever there is discretion
there is room for arbitrariness. Further he attributed three meanings
to Rule of Law.
1. Supremacy of law
2. Equality before law
3. Predominance of legal spirit.
These three meanings of rule of Law has been discussed below in

detail.
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2.1.1. Supremacy of law
It is the absence of discretionary power in the hands of the

government officials. By this Dicey implies that justice must be done
through known principles. Discretion implies absence of rules, hence
in every exercise of discretion there is room for arbitrariness.
Explaining the first principle, Dicey stated that rule of law means the
absolute supremacy or predominance of regular law as opposed to
the influence of arbitrary power or wide discretionary power. It
excludes the existence of arbitrariness, of prerogative or even wide
discretionary power on the part of the Government.
According to him the Englishmen were ruled by the law and law
alone. A man may be punished for a breach of law, but can be
punished for nothing else. As Wade says the rule of law requires that
the Government should be subject to the law, rather than the law
subject to the Government.
According to this doctrine, no man can be arrested, punished or be

lawfully made to suffer in body or goods except by due process of law
and for a breach of law established in the ordinary legal manner
before the ordinary courts of the land. Dicey described this principle
as ‘the central and most characteristic feature’ of Common Law.
The first principle is the recognition of Cardinal principle of

Democratic governments as opposed to arbitrary and autocratic
governments which lays down that no functionary of the government
should have wide arbitrary or discretionary powers to interfere with
the liberty and freedom of the people. But here Dicey was not
referring to a wide measure or discretion which is incapable in any
modern government. He was certainly indicating the position in some
countries where police authorities exercised wide arbitrary or
discretionary power of imprisonment and punishment outside the
ordinary legal system.
2.1.2. Equality before law
Explaining the second principle of the rule of law, Dicey stated that
there must be equality before the law or the equal subjection of all
classes to the ordinary law of the land administered by the ordinary
courts of law. According to him, in England, all persons were subject
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to one and

the same law, and there were no separate tribunals or special courts
for officers of the Government and other authorities.
No person should be made to suffer in body or deprived of office,

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property except for a breach of law established in the ordinary legal
manner before the ordinary courts of the land. In this sense, the rule
of law implies
 Absence of special privileges for a government official or any

other person
 All the persons irrespective of status must be subjected to the
ordinary courts of the land
 Everyone should be governed by the law passed by the
ordinary legislative organs of the state
The rights of the people must flow from the customs and traditions of
the people recognized by the courts in the administration of justice.
This principle enunciates Democratic principle of equal subjection of
all persons to the ordinary law of the land as administered by the
ordinary courts.
2.1.3. Predominance of legal spirit.
Judge – made Constitution explaining the third principle, Dicey stated

that in many countries’ rights such as the right to personal liberty,
freedom from arrest, freedom to hold public meetings, etc. are
guaranteed by a written Constitution; in England, it is not so. Those
rights are the result of judicial decisions in concrete cases which have
actually arisen between the parties. Thus, Dicey emphasized the role
of the courts of law as guarantors of liberty and suggested that the
rights would be secured more adequately if they were enforceable in
the courts of law than by mere declaration of those rights in a
document, as in the latter case, they can be ignored, curtailed or
trampled upon. He stated:
‚The Law of the Constitution, the rules which in foreign countries

naturally form part of a Constitutional Code, are not the source but
the consequences of the rights of individuals, as defined and enforced
by the courts.”
This principle, in fact, does not lay down any legal rule but merely
explains one aspect of the British Constitutional system where
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common law is a source of fundamental freedoms of the people. He

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does distinguish the British system from that of many other countries
which had written Constitutions with a chapter on individual rights.
Dicey feared that if the source of the fundamental rights of the

people was any document, the right could be abrogated at any time
by Amending the Constitution this is what exactly happened in India
during 1975 emergency periods. When the Supreme Court ruled that
even illegal acts of the government could not be challenged in a court
because it was found that the source of personal liberty in India was
Article 21 of the Constitution, which had been suspended by the
presidential proclamation, and not any common law of the people
This principle puts emphasis on the role of judiciary in enforcing

individual rights and personal freedoms irrespective of their inclusion
in a written Constitution. Dicey feared that mere declaration of such
rights in any statute or in Constitution would be futile if they could
not be enforced. It simply like having a cup of ice cream in front of
you cannot eat, store or hand it over to somebody else. Hence it will
be useless.
Dicey was right when he said that a statute or even Constitution can
be amended and ‘Fundamental Rights’ can be abrogated. We have
witnessed such a situation during the emergency in 1975 and realized
that in absence of strong and powerful judiciary, a written
Constitution is meaningless.
He criticized the French legal system of droit-administratif in which

there were distinct administrative tribunals for deciding cases
between the officials of the State and the citizens.
According to him, 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 equality. Of course, Dicey himself saw
that administrative authorities were exercising ‘judicial’ functions
though they were not ‘courts’. He, therefore, asserted: ‚Such
transference of authority slaps the foundation of the rule of law which
has been for generations a leading feature of the English
Constitution.‛
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2.2. Analysis of Dicey’s Concept of Rule of Law
2.2.1. Merits of Dicey’s Concept

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Dicey's thesis has its own advantages and merits. The doctrine of Rule
of Law proved to be an effective and powerful weapon in keeping
administrative authorities within their limits. It served as a touchstone
to test all administrative actions. The broad principle of rule of law
was accepted by almost all legal systems as a Constitutional
safeguard.
The first principle (supremacy of law) recognizes a cardinal rule of

democracy that every Government must be subject to law and not law
subject to the Government. It rightly opposed arbitrary and
unfettered discretion governmental authorities, which has tendency
to interfere with rights of citizens.
The second principle (equality before law) is equally important in a

system wedded to democratic polity. It is based on the well-known
maxim -"However high you may be, Law is above you", and "All are
equal before the law."
2.2.2. Demerits / Critisism of Dicey’s Concept
The view of Dicey as to the meaning of the Rule of Law has been
subject of much criticism. The whole criticism may be summed up as
follows.
 Dicey has opposed the system of providing the discretionary

power to the administration. In his opinion providing the
discretionary power means creating the room for arbitrariness.
Now a days it has been clear that providing the discretion to
the administration is inevitable.
 Dicey has failed to distinguish discretionary powers from the
arbitrary powers. Arbitrary power may be taken as against the
concept of Rule of Law . In modern times in all the countries
including England, America and India, the discretionary
powers are conferred on the Government. The present trend is
that discretionary power is given to the Government or
administrative authorities, but the statute which provides it to
the Government or the administrative officers lays down some
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guidelines or principles according to which the discretionary

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power is to be exercised. The administrative law is much

concerned with the control of the discretionary power of the

administration.
 According to Dicey the rule of law requires that every person
should be subject to the ordinary courts of the country. Dicey
has claimed that there is no separate law and separate court
for the trial of the Government servants in England. He
critcised the system of droit administratif prevailing in France.
In France there are two types of courts Administrative Court
and Ordinary Civil Courts. The disputes between the citizens
and the Administration are decided by the Administrative
courts while the other cases, (i.e. the disputes between the
citizens) are decided by the Civil Court. Dicey was very critical
to the separation for deciding the disputes between the
administration and the citizens
 According to Dicey the Rule of Law requires equal subjection
of all persons to the ordinary law of the country and absence
of special privileges for person including the administrative
authority. This proportion of Dicey does not appear to be
correct even in England. Several persons enjoy some privileges
and immunities. For example, Judges enjoy immunities from
suit in respect of their acts done in discharge of their official
function. Besides, Public Authorities Protection Act, 1893, has
provided special protection to the official. Foreign diplomats
enjoy immunity before the Court.
 Third meaning given to the rule of law by Dicey that the
constitution is the result of judicial decisions determining the
rights of private persons in particular cases brought before the
Courts is based on the peculiar character of the Constitution
of Britain and not of other countries.
Despite the aforementioned demerits of Dicey's definition of the rule

of law, he should be praised for drawing the attention of scholars and
authorities to the need to control the discretion of the executive
branch. He developed a philosophy to control governments and
officials and keep them within their power.
2.3. Modern Concept of Rule of Law
As stated earlier, Dicey’s concept of the rule of law was not accepted
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fully in England even in 1885 when he formulated it, as in that.,

administrative law and administrative authorities were very much
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there. Today, Dicey’s theory of rule of law cannot be accepted in its

totality. Davis gives 7 principal meanings of the term rule of law. They
are enumerated as follows.
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1. Law and order
2. Fixed rules
3. Elimination of discretion
4. Due process of law or fairness
5. Natural law or observance of the principles of natural justice
6. Preference for judges and ordinary courts of law to executive
authorities and administrative tribunals
7. Judicial review of administrative actions.
The modern concept of the rule of law is fairly wide and, therefore,
sets up an ideal for any government to achieve. This concept was
developed by the International Commission of Jurists, known as Delhi
declaration, 1959, which was later on confirmed at Lagos in 1961.
According to this formulation, the rule of law implies that the
functions of the government in a free society should be so exercised
as to create conditions in which the dignity of man as an individual is
upheld. The dignity requires not only the recognition of certain civil or
political rights but also creation of certain political, social, economic,
educational and cultural conditions which are essential to the full
development of his personality and the protection of his/her dignity.
During the last few years, the Indian Supreme Court has developed
some fine Principles of third world jurisprudence. Developing the
same new Constitutionalism further, the Supreme Court in Veena
Sethi vs. State of Bihar1 Extended the reach of the rule of law to the
poor and the downtrodden, The ignorant and the illiterate, who
constitute the bulk of humanity in India, when it ruled that the rule of
law does not exist merely for those who have the means to fight for
their rights and very often do so for the perpetuation of the status
quo, which protects and preserves their dominance and permits them
to exploit a large section of the community. The opportunity for this
ruling was provided by a letter written by the free legal aid
committee, Hazaribagh, Bihar drawing its attention to unjustified and
illegal detention of certain prisoners in jail for almost two or three
decades.
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1
(1982) 2 SCC 583

2.4. Rule of Law in India
In India, the concept of the rule of law can be traced to the

Upanishads. The Brihadaranyak-opanishad provides
‚Law is the king of Kings. It is more powerful and rigid than Kings.
There is nothing higher than law. By its power the weak shall prevail
over the strong and justice shall triumph‛.
It is also to be noted that the concept of ‚Yatho Dharma Sthatho

Jaya‛ meaning ‚Law alone triumphs‛ is also originated in India.
The concept of rule of law is invoked and often to convey the sense
that the administration cannot exercise arbitrary powers and that it
should function according to Law. The concept of the rule of law is an
animation of natural law and remains as a historical idea which makes
a powerful appeal even today to be ruled by law not by powerful
man.
Rule of law mandates that power must be made accountable,

governance progressively just and equal, and state incrementally
ethical. The term rule of law can be used in two senses
1. Formalistic sense
2. Ideological sense
If used in the formalistic sense, it refers to organized 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 citizens and the
government and in this sense, it becomes a concept of varied interest
and contents.
These postulates include equality, freedom and accountability.
Equality is not a mechanical under negative concept but has

progressive and positive contents which obliged every government to
create conditions; Social, economic, and political, where every
individual has an equal opportunity to develop his personality to the
fullest and to live with dignity.
Freedom postulates absence of a very arbitrary action, free speech,

expression and association, personal Liberty, and many others. These
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basic rights of any society may be restricted only on the ground that
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the claims of these freedoms would be better by such circumscription.

Rule of law permeates the entire fabric of the Constitution and indeed
forms one of its basic features. The necessary element of rule of law
is that the law must not be arbitrary or irrational and it must
satisfy the test of reason.
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The basic concept of the rule of law is not well-defined legal concept.
The courts generally would not invalidate any positive law on the
ground that it violates the contents of the rule of law. However, in
ADM Jabalpur v. Shivakanth Shukla, popularly known as habeas
corpus case, an attempt was made to challenge their detention orders
during the emergency on the ground that it violates the principles of
the rule of law as the 'Obligation to act in accordance with the rule of
law.... a central feature of our Constitutional system and is a basic
feature of the Constitution.'
Though the contention did not succeed and some justices even went
on to suggest that during an emergency, the emergency provisions
themselves constitute the rule of law, yet if the reasoning of on the
fight opinions is closely read, it becomes clear that the contention
was accepted, no matter it did not reflect in the final order passed by
the court. Therefore, despite the unfortunate order to the effect that
the doors of the court during an emergency are completely shut for
the detenus, it is gratifying to note that the concept of the rule of law
can be used as a legal concept.
In the opinion of some of the judges constituting the majority in case

of Keshavanandabharati v. State of Kerala, The rule of law was
considered as an aspect of the doctrine of basic structure of the
Constitution which even the plenary power of parliament cannot
reach to amend.
In Indira Nehru Gandhi v. Raj Narain, the Supreme Court

invalidated clause 4 of Article 329-A inserted in the Constitution by
the 39th Amendment Act 1975. To immunize the election disputed to
the office of the Prime Minister from any kind of judicial review,
Khanna and Chandrachud JJ. held that Article 329 A violated the
concept of basic structure.
It is heartening to see that the courts are making all concerted efforts
to establish a Rule of Law society in India by insisting on fairness in
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every aspect of the exercise of power by the state.

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Some of the recent decisions of the Supreme Court are clear

indicators of this trend.
In Sheela Barse v. State of Maharashtra, the court insisted on

fairness to women in police lockup and drafted a code of guidelines
for the protection of prisoners in police custody, especially female
prisoners.
In State of Madhya Pradesh v. Ramashanker Raghuvanshi, the

court secured fairness in public employment by holding that reliance
on police reports is entirely misplaced it in a Democratic Republic.
Thus, Diverts of the courts in here illegitimating undue Powers by

operationalizing substantive and procedural norms and standards can
be seen as a high benchmark of judicial activism for firmly
establishing the concept of the rule of law in India.
Rule of law under the Constitution serves the needs of people without
undoubtedly infringing their rights. It recognizes the social reality and
tries to adjust itself from time to time avoiding authoritarian path.
2.5. Rule of Law in Indian Constitution
Rule of law under the Constitution has the glorious content. It

embodies the concept of law involved over the centuries. Doctrine of
equality before the law is necessary corollary to the high concept of
rule of law accepted by our Constitution. One of the aspects of rule of
law is that every executive action if it operates to the prejudice of any
person, must be supported by some legislative authority.
Under our Constitution the rule of law prevails over the entire field of
administration and every organ of the state is regulated by the rule of
law. In a welfare state it is inevitable that jurisdiction of administrative
bodies is increasing by a rapid rate. The concept of rule of law would
lose its vitality if instrumentalities of the state are not charged with
the duty of discharging their function in a fair and just manner.
Constitution of India is based on the concept of rule of law. Everyone

whether individually or collectively is unquestionably under the
supremacy of law. It is only through the courts that rule of law unfolds
its contents and establishes its concept.
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In Indira Sawhney II v. Union of India, the Supreme Court criticized

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the approach of the government and held that governments today

tend to violate rule of law as a matter of political convenience so that

burden of striking down unconstitutional provisions passed to the
court. Such an approach of the government was exempted.
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Our Constitution envisages a rule of law and not a rule of men. It
recognizes that, howsoever high one maybe, he is under the law and
the Constitution. All the Constitutional functionaries must, therefore,
function within the Constitutional limits. In a system governed by rule
of law, there is nothing like absolute or unbridled power exercisable
at the whims and fancies of the repository power.
In India the Constitution is supreme. The preamble of our Constitution

clearly sets out the principle of rule of law. It is sometimes said that
planning and welfare schemes essentially strike at rule of law because
they affect the individual freedoms and liberty in may ways. But rule
of law plays an effective role by emphasizing upon fair play and
greater accountability of the administration. It lays greater emphasis
upon the principles of natural justice and the rule of speaking order in
administrative process in order to eliminate administrative
arbitrariness.
Thus, the concept of rule of law in India is duly recognized by the

Constitution and is firmly established by judicial pronouncements
Topic 3. Separation of Powers

The Doctrine of Separation of Powers, was proposed by Montesquieu,
in his work, De l’espirit des lois, although the first thought of
separating the legislative power was proposed by John Locke, into:
discontinuous legislative power, continuous legislative power and
federative power.
In 1787, The founding fathers of the United States of America,

incorporated this principle into their constitution. Montesquieu
proposed the basic principle to be that the same person should not
form part of more than one of the three organs of the government.
Ideally, that means that Ministers should not be elected. This is one
principle that is different between the Indian and United States
government, where the Secretaries to the President are non-
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legislative appointees. Accumulation of power in multiple branches of

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the government will bring tyranny control, whether self-appointed or

elected.
Taking account of the historical background of the concept of

doctrine of separation of powers, , the English philosopher John Locke
had earlier argued that legislative power should be divided between
king and Parliament. He distinguished between what he called:
1. Discontinuous legislative power

2. Continuous executive power
3. Federative power.
He included within ‘discontinuous legislative power’ the general rule-

making power called into action from time to time and not
continuously. ‘Continuous executive power’ included all those powers,
which we now call executive and judicial. By ‘federative power’ he
meant the power of conducting foreign affairs.
Montesquieu’s division of power included a general legislative power

and two kinds of executive powers; an executive power in the nature
of Locke’s ‘federative power’ and a ‘civil law’ executive power
including executive and judicial power.
3.1. Montesquieu’s Theory
According to this theory, powers are of three kinds: Legislative,

executive and judicial and that each of these powers should be vested
in a separate and distinct organ, for if all these powers, or any two of
them, are united in the same organ or individual, there can be no
liberty. If, for instance, legislative and executive powers unite, there is
apprehension that the organ concerned may enact tyrannical laws
and execute them in a tyrannical manner. Again, there can be no
liberty if the judicial power is not separated from the legislative and
the executive. Where it joined the legislative, the life and liberty of the
subject would be exposed to arbitrary control, for the judge would
then be the legislator. Where it joined with the executive power, the
judge might behave with violence and oppression.
The theory of separation of powers signifies three formulations of

structural classification of governmental powers:
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 The same person should not form part of more than one of
the three organs of the government. For example, ministers
should not sit in Parliament.
 One organ of the government should not interfere with any
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other organ of the government.
 One organ of the government should not exercise the
functions assigned to any other organ.
3.2. Position in England
In England, the King being the executive head is also an integral part
of the legislature. His ministers are also members of one or other
Houses of Parliament. This concept goes against the idea that the
same person should not form part of more than one organ of the
Government. In addition, the House of Commons control the
executive. So far as the judiciary is concerned, in theory, House of
Lords is the highest Court of the country but in practice, judicial
functions are discharged by persons who are appointed specially for
this purpose, they are known as Law Lords and other persons who
held judicial post. Thus we can say that the doctrine of separation of
powers is not an essential feature of the British Constitution.
3.3. Position in US
The US has a written constitution and governed by the Presidential

form of government. The cornerstone of the Constitution of the
United States is the doctrine of separation of powers. This concept is
well-defined and clear under the American Constitution.
Article I – Section 1 of the American Constitution states that –
“ All the legislative powers are vested in Congress.”
Article II – Section 1 of the American Constitution states that –
“ All the executive powers are vested in the President.”
Article III – Section 1 of the American Constitution states that –
“All the judicial powers are vested in the federal courts and the
Supreme Court.”
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The President and his ministers are the executive authority and they
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are not members of the Congress. The ministers are accountable to

the President only and not to the Congress. The tenure of the
President is fixed and independent of the majority in Congress.
Congress is the sovereign legislative authority. It consists of two

houses- Senate and House of Representative. The impeachment of
the President can be done by Congress. The treaties entered by the
President are to be approved by the Senate. The Supreme Court of
the USA is independent. It may declare any action of the executive as
well as the legislature as unconstitutional if found so. Thus, it appears
as if the powers of the three organs exist in a watertight compartment
but actually it is not so.
 President interferes in the functioning of Congress by

exercising his veto power. He also makes the appointment of
the Judges thus, interfering in judicial powers.
 Similarly, Congress interferes in the powers of the Courts by
passing procedural laws, making special courts and by
approving the appointment of the judges.
 The judiciary, by exercising the power of judicial review
interferes in the powers of Congress and the President.
In Panama Refining Company v. Ryan the court observed that:-
‚the doctrine of separation of power is not a dogmatic concept. It

cannot be imposed with strictness. There must be elasticity in its
application with respect to the needs of the government. Therefore, a
practical approach to this theory is required.‛
3.4. Position in India
Like the United Kingdom, India also practices the parliamentary form
of government in which executive and legislature are linked to each
other. So, the doctrine of separation of powers is not implemented in
its strict sense. However, the composition of our constitution creates
no doubt that the Indian Constitution is bound by the separation of
powers. There are various provisions under the Indian Constitution
that clearly demonstrate the existence of the doctrine of separation of
powers. This principle is followed both at the centre and the state
level.
3.4.1. Provisions that Substantiate Separation of Power

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Article 53(1) and Article 154 of the Indian Constitution clearly say that
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the Executive powers of the Union and the States are vest in the

President and Governor respectively and shall only be exercised

directly by him or through his subordinate officers.
Article 122 and Article 212 of the Indian Constitution state that the
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courts cannot inquire in the proceedings of Parliament and the State
Legislature. This ensures that there will be no interference of the
judiciary in the legislature.
Article 105 and Article 194 of the Indian Constitution specify that the
MPs and MLAs cannot be called by the court for whatever they speak
in the session.
Article 50 of the Indian Constitution encourages the separation of

judiciary from the executive in the states.
Article 245 of the Indian Constitution gives authority to Parliament

and State Legislature for making laws for the whole country and the
states respectively.
Article 121 and Article 211 of the Indian Constitution state that the
judicial conduct of any judge of the Supreme Court or High Court
shall not be discussed in Parliament or State Legislature.
Article 361 of the Indian Constitution specifies that the President and
the Governor are not accountable to any court for exercising their
powers and performance of duties in his office.
3.4.2. Overlapping Provisions
 Article 123 of the Indian Constitution allows the President to

issue ordinance when both the houses are not in session.
 Article 213 of the Indian Constitution gives power to the
Governor to issue ordinance when state legislative assembly is
not in session.
 Article 356 of the Indian Constitution lays the provision of
Presidential Rule in case of state emergency.
 Article 74 of the Indian Constitution states that the council of
ministers shall aid the President in the exercise of his executive
functions.
 Article 75(3) of the Indian Constitution makes the Council of
Ministers collectively responsible to the House of the People.
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 Article 61 of the Indian Constitution lays the provision of

Impeachment of the President by passing a resolution from
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both the houses in order to remove the President.

 Article 66 of the Indian Constitution states that the election of

Vice-President is done by the electoral members of both the
houses.
 Article 145 of the Indian Constitution allows the Supreme
Court to make laws with approval of the President for the
court proceedings and the practices.
 Article 146 of the Indian Constitution lays the provisions for
the appointment of the servants and officers of the Supreme
Court by the Chief Justice of India with consultation from
President and the Union Public Service Commission.
 Article 229 of the Indian Constitution lays the provision for the
appointment of the servants and officers of the High Courts
with the consultation of the Governor and the State Public
Service Commission.
 Article 124 of the Indian Constitution gives the President the
power to appoint the judges of the Supreme Court.
 Article 72 of the Indian Constitution empowers President to
grant a pardon or suspend the sentence of any person who is
convicted by the Supreme Court of India.
 Article 32, Article 226 and Article 136 of the Indian
Constitution provide the power of judicial review to the
Supreme Court to strike down any law made by the Parliament
or any administrative action which is found to be
unconstitutional.
Judicial Enunciations :
The very first judgment with relation to the separation of powers was
in the case of Ram Jawaya Kapur v. State of Punjab It was held
that
“The Constitution of India has not acknowledged the

doctrine of separation of power emphatically but the
functions and powers of all the organs have been
adequately distinguished. Thus it would not be wrong
to say that Indian constitution does not behold
assumptions rather it works in a flexible manner
considering the needs of the country. So, the
executive can exercise the law-making power only
when delegated by the legislature and it is also
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empowered to exercise judicial powers within the

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limits. But on an all, no organ should exercise its

power beyond the provision of the constitution.”
Later in the case of Indira Nehru Gandhi v. Raj Narain it was

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observed that :
“ A rigid sense of separation of powers which has

been given under the American and Australian
constitution does not apply to India.”
In Golak Nath v. State of Punjab, it was observed that:-
“ The three organs of the government have to

exercise their functions keeping in mind certain
encroachments assigned by the constitution. The
constitution demarcates the jurisdiction of the three
organs minutely and expects them to be exercised
within their respective powers without
overstepping their limits. All the organs must
function within the spheres allotted to them by the
constitution. No authority which is created by the
constitution is supreme. The constitution of India is
sovereign and all the authorities must function
under the supreme law of the land i.e. the
Constitution.”
In Asif Hameed v. State of Jammu and Kashmir the Supreme Court

observed that:-
“Though the constitution has not recognized the

doctrine of separation of powers in its absolute
rigidity, the drafters of the constitution have
diligently defined the powers and functions of
various organs. The legislature, executive and
judiciary have to function within their own domain
prescribed by the constitution. No organ may
arrogate the functions allotted to another.”
3.5. Relevance of Doctrine of Separation of Powers
Although, the doctrine of separation of powers does not have the

rigid applicability that does not imply that it has no relevance in the
current scenario. The core objective of the doctrine of separation of
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powers is to keep checks and balances among the three organs of the
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government which is an essential factor to run a government

dynamically. The logic behind this doctrine is not the strict

classification rather it is the avoidance of concentration of powers to a
specific person or a body. This theory is not operative in its absolute
sense but yes, it is very advantageous if applied correlatively. Thus,
not impenetrable barriers and unalterable frontiers but mutual
curtailment in the exercise of powers by the three organs of the state
is the spirit of the doctrine of separation of powers.
3.6. Doctrine of Check and Balances
Checks and balances refer to a system of government in which power

is divided between different branches, or parts, of the government.
The idea is that the branches will then be able to check and balance
each other so that no part of the government can become too
powerful. These checks and balances help resist the power of others.
They are of fundamental importance in tripartite governments.
The Indian Constitution has no explicit provision for separation of

powers of organs: Legislative, Executive, and Judiciary. However,
separation of power exists between these organs. Also, to avoid
supremacy of any organ and prevent abuse of power by it, there
exists a scheme of checks and balances.
The Constitution of India does not accept the principle of strict

separation of powers, rather it is based on the principle of ‘checks and
balance’.
 Article 13(2): Judiciary can review any legislative law made by

the Parliament.
 Article 32 and 226: The Supreme Court and the High Court’s
issue writs to hold the executive and legislature accountable.
 Article 61: Impeachment of President.
 Article 75 and 164: Council of Ministers responsible to Lok
Sabha and State Legislative Assembly respectively.
 Article 81: Disqualification of Members of Parliament.
 Article 124 and 218 of the Constitution of India lay down the
procedure for impeachment of judges of the Supreme Court
and High Court.
 Article 148: Comptroller and Auditor General of India
appointed by the President is responsible for auditing the
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finances made by the executive to Parliament.

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The constitution provides various checks and balances to prevent

abuse of power by anyone function:
Checks on the Executive

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Different instruments like No-Confidence Motion, Question Hour,
Calling attention motion, Censure Motion, etc. help hold the
government accountable to the Parliament and ultimately to the
people of India.
The constitution provides for Article 13, 32, and 226 which implicitly
mention the doctrine of judicial review allowing the Supreme court to
strike any delegated legislation by the executive for example, Stay of
Cattle slaughter notification by Supreme court
The executive actions must remain within the framework of the

constitution and the Judiciary ensures that the rights of individuals are
protected.
Actions that violate norms and are corrupt practices are checked by
the legislature through the reframing of acts for example. Benami
Transactions Act was revised in 2016 to overhaul the previous
ineffective act
Checks on the Legislature
Office of profit mentioned under Article 102 prevents the legislators

from encroaching on the executive role thus entering into a conflict of
interest. For example, Striking down of appointment of parliamentary
secretaries by the Delhi High Court
The Judiciary can strike down legislation which are ultra vires of the
constitution using the doctrine of judicial review For example, Section
66 A of the IT Act was struck down to protect its misuse.
The constitution bars legislators to discuss the conduct of the judges

in parliament and assembly
Checks on Judiciary
The constitution provides that in case of misconduct of judges, they

can be removed by parliament by a special majority in both the
houses after an investigation by a committee For example, Attempt to
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remove Justice Soumitra Sen in Rajya Sabha

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Judicial appointments require the concurrence of the government

after they have been approved by collegiums of judges.
Topic 4. Droit Administratif

French administrative law is known as Droit Administratif. It means a
body of rules which determine the organization, powers and duties of
public administration and regulate the relation of the administration
with the citizen of the country. Droit Administrative does not
represent the rules and principles enacted by Parliament. It contains
the rules developed by administrative courts.
Napoleon Bonaparte was the founder of the Droit administrative. It

was he who established the Conseil d’Etat. He passed an ordinance
depriving the law courts of their jurisdiction on administrative matters
and another ordinance that such matters could be determined only
by the Conseil d’Etat. Waline, the French jurist, propounds three basic
principles of Droit administrative:
1. the power of administration to act suo motu and impose

directly on the subject the duty to obey its decision;
2. the power of the administration to take decisions and to
execute them suo motu may be exercised only within the
ambit of law which protects individual liberties against
administrative arbitrariness;
3. the existence of a specialized administrative jurisdiction.
One good result of this is that an independent body reviews every

administrative action The Conseil d’Etat is composed of eminent civil
servants, deals with a variety of matters like claim of damages for

wrongful acts of Government servants, income-tax, pensions,
disputed elections, personal claims of civil servants against the State
for wrongful dismissal or suspension and so on. It has interfered with
administrative orders on the ground of error of law, lack of
jurisdiction, irregularity of procedure and detournement depouvior
(misapplication of power). It has exercised its jurisdiction liberally
The following are the characteristic features of the Droit Administratif

in France:-
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 Those matters concerning the State and administrative

litigation falls within the jurisdiction of administrative courts
and cannot be decided by the land of the ordinary courts.
 Those deciding matters concerning the State and
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administrative litigation, rules as developed by the
administrative courts are applied.
 If there is any conflict of jurisdiction between ordinary courts
and administrative court, it is decided by the tribunal des
conflicts.
 Conseil d’Etat is the highest administrative court.
Despite the obvious merits of the French administrative law system,

Prof. Dicey was of the opinion that there was no rule of law in France
nor was the system so satisfactory as it was in England. He believed
that the review of administrative action is better administered in
England than in France.
The system of Droit Administratif according to Dicey, is based on the

following two ordinary principles which are alien to English law—
Firstly, that the government and every servant of the government

possess, as representative of the nation, a whole body of special
rights, privileges or prerogatives as against private citizens, and the
extent of rights, privileges or considerations which fix the legal rights
and duties of one citizen towards another. An individual in his
dealings with the State does not, according to French law; stand on
the same footing as that on which he stands in dealing with his
neighbour.
Secondly, that the government and its officials should be

independent of and free from the jurisdiction of ordinary courts.
Topic 5. Administrative Functions : Types

Administrative action is a comprehensive term and defies exact
definition. In modern times the administrative process is a by-product
of intensive form of government and cuts across the traditional
classification of governmental powers and combines into one all the
powers, which were traditionally exercised by three different organs
of the State. Therefore, there is general agreement among the writers
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on administrative law that any attempt of classifying administrative

functions or any conceptual basis is not only impossible but also
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futile. Even then a student of administrative law is compelled to delve

into field of classification because the present-day law especially
relating to judicial review freely employs conceptual classification of
administrative action. Thus, speaking generally, an administrative
action can be classified into four categories as follows.
(i) Rule-making action or quasi-legislative action.

(ii) Rule-decision action or quasi-judicial action.
(iii) Rule-application action or pure administrative action.
(iv) Ministerial Action
In Jayantilal Amritlal Shodhan V. F.N Rana and Ors, it was held that
Generally an administrative action can be further bifurcated into 3

parts-
Quasi-legislative action or Rule making: It includes the rule making

power and delegated legislation. Under this organ the administration
performs the function of legislation in such situations where it is not
possible for any legislation to legislate laws for the kind of conflicts
arising.
Quasi-Judicial action or Rule decision action: It includes such

conditions under which the administration puts on the hat of the
judiciary and confers the special power of taking decisions in cases
where legal rights of individual are effected.
Purely administrative action or Rule application action: This includes

the actions which are neither legislative nor judiciary but purely
administrative in nature.
5.1. Rule Making Action (Quasi Legislative)
Legislature is the law-making organ of any state. In some written

constitutions, like the American and Australian Constitutions, the law
making power is expressly vested in the legislature. However, in the
Indian Constitution though this power is not so expressly vested in
the legislature, yet the combined effect of Articles 107 to 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. It is
the intention of the Constitution-makers that those bodies alone
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must exercise this law-making power in which this power is vested.

But, today these legislative bodies cannot give that quality and
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quantity of laws needed for a fast changing demographic

environment and the efficient functioning of a modern intensive form
of government. Therefore, the delegation of law-making power to the
administration is a compulsive necessity. When any administrative
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authority exercises the law-making power delegated to it by the
legislature, it is known as the rule-making power delegated to it by
the legislature, it is known as the rule-making action of the
administration or quasi-legislative action and commonly known as
delegated legislation. Rule-making action of the administration
partakes all the characteristics, which a normal legislative action
possesses.
If a 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.‛
In the leading case of Bates v. Lord Hailsham, it was observed that
“the rules of natural justice do not run in the sphere

of legislation, primary or delegated. There is no
right to be heard before the making of legislation,
whether primary or delegated, unless it is provided
by statute”.
5.2. Rule Decision Action (Quasi Judicial)
The word ‘quasi’ means ‘not exactly.’ Generally, an authority is

described as ‘quasi judicial’ when it has some of the attributes or
trappings of judicial functions, but not all. In the words of the
Committee on Ministers’ Powers, ‚the word ‘quasi’, when prefixed to a
legal term, generally means that the thing, which is described by the
word, has some of the legal attributes denoted and connoted by the
legal term, but that it has not all of them‛ e.g. if a transaction is
described as a quasi-contract, it means that the transaction in
question has some but not all the attributes of a contract.
Today the bulk of the decisions which affect a private individual come
not from courts but from administrative agencies exercising ad
judicatory powers. The reason seems to be that since administrative
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decision-making is also a by-product of the intensive form of

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government, the traditional judicial system cannot give to the people

that quantity of justice, which is required in a welfare State.
Administrative decision-making may be defined, as a power to

perform acts administrative in character, but requiring incidentally
some characteristics of judicial traditions.
On the basis of this definition, the following functions of the

administration have been held to be quasi-judicial functions:
 Disciplinary proceedings against students.

 Disciplinary proceedings against an employee for misconduct.
 Confiscation of goods under the sea Customs Act, 1878.
 Cancellation, suspension, revocation or refusal to renew
license or permit by licensing authority.
 Determination of citizenship.
 Determination of statutory disputes.
 Power to continue the detention or seizure of goods beyond a
particular period.
 Refusal to grant ‘no objection certificate’ under the Bombay
Cinemas (Regulations) Act, 1953.
 Forfeiture of pensions and gratuity.
 Authority granting or refusing permission for retrenchment.
 Grant of permit by Regional Transport Authority.
It is also not true that in all quasi-judicial decisions, two characteristics

are common
(i) presentation of their case by the parties; and

(ii) the decision on questions of fact by means of evidence
adduced by the parties.
Firstly, in many cases, the first characteristic is absent and the

authority may decide a matter not between two or more contesting
parties but between itself and another party, e.g. an authority
effecting compulsory acquisition of land. Here the authority itself is
one of the parties and yet it decides the matter. It does not represent
its case to any court or authority.
Secondly, there may be cases in which no evidence is required to be

taken and yet the authority has to determine the questions of fact
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after hearing the parties, e.g. ratemaking or price fixing.

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Thirdly, after ascertainment of facts, unlike a regular court, an

authority is not bound to apply the law to the facts so ascertained,
and the decision can be arrived at according to considerations of
public policy or administrative discretion, which factors are unknown
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to an ordinary court of law.
5.3. Rule Application Action (Pure Administrative)

Administer do action may be statutory, having the force of law or Non
statutory, devoid of such legal force. The bulk of the administrative
action is statutory because a statute or the constitution gives it illegal
force, but in some cases, it may be non-statutory, such as issuing
directions to subordinates not having the force of law, but it’s
violation may be visited with disciplinary action. Though by and large
administrative action is discretionary and is based on subjective
satisfaction, however, the administrative authority must act fairly,
impartially and reasonably.
In Ram Jawaya v. State of Punjab, the Supreme Court observed,
“It may not be possible to frame an exhaustive

definition of what executive function means and
implies. Ordinarily the executive power connotes
the residue of governmental functions that remain
after legislative and judicial functions are taken
away."
Also in A.K. Kraipak v. Union of India, the Court was of the view
that in order to determine whether the action of the administrative
authority is quasi-judicial or administrative, one has to see the nature
of power conferred, to whom power is given, the framework within
which power is conferred and the consequences.
Thus, administrative functions are those functions which are neither

legislative nor judicial in character. Generally, the following
ingredients are present in administrative functions:
1. An administrative order is generally based on governmental

policy or expediency.
2. In administrative decisions, there is no legal obligation to
adopt a judicial approach to the questions to be decided, and
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the decisions are usually subjective rather than objective.

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3. An administrative authority is not bound by the rules of

evidence and procedure unless the relevant statute specifically
imposes such an obligation.
4. An administrative authority can take a decision in exercise of a
statutory power or even in the absence of a statutory
provision, provided such decision or act does not contravene
provision of any law.
5. Administrative functions may be delegated and sub-delegated
unless there is a specific bar or prohibition in the statute.
6. While taking a decision, an administrative authority may not
only consider the evidence adduced by the parties to the
dispute, but may also use its discretion.
7. An administrative authority is not always bound by the
principles of natural justice unless the statute casts such duty
on the authority, either expressly or by necessary implication
or it is required to act judicially or fairly.
8. An administrative order may be held to be invalid on the
ground of unreasonableness.
9. An administrative action will not become a quasi-judicial
action merely because it has to be performed after forming an
opinion as to the existence of any objective fact.
10. The prerogative writs of certiorari and prohibition are not
always available against administrative actions.
5.4. Difference between Judicial and Quasi judicial
Distinction between Judicial and Quasi-Judicial Functions.
A quasi-judicial function differs from a purely judicial function in the

following respects
 A quasi-judicial authority has some of the trappings of a court,
but not all of them; nevertheless, there is an obligation to act
judicially.
 A lis inter parties is an essential characteristic of a judicial
function, but this may not be true of a quasi-judicial function.
 A court is bound by the rules of evidence and procedure while
a quasi-judicial authority is not.
 While a court is bound by precedents, a quasi-judicial
authority is not.
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 A court cannot be a judge in its own cause (except in

contempt cases), while an administrative authority vested with
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quasi-judicial powers may be a party to the controversy but

can still decide it.
The distinction between judicial and quasi-judicial functions rests

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mainly on the fact that in deciding cases, courts apply pre-existing law
whereas administrative authorities exercise discretion. This is,
however, fallacious. ‘The most that can be said is that the discretions
of the courts may differ in nature and extent from the discretions of
the administrator. Nevertheless, the asserted discretion is reduced to
one of degree only.
5.4. Difference between Administrative and Quasi

judicial Actions.
Though the distinction between quasi-judicial and administrative

action has become blurred, yet it does not mean that there is no
distinction between the two.
In A.K. Kraipak vs. The Union of India, the Court was of the view
that in order to determine whether the action of the administrative
authority is quasi-judicial or administrative, one has to see the nature
of the power conferred, to whom power is given, the framework
within which power is conferred and the consequences.
Thus broadly speaking, acts, which are required to be done on the

subjective satisfaction of the administrative authority, are called
‘administrative’ acts, while acts, which are required to be done on
objective satisfaction of the administrative authority, can be termed as
quasi-judicial acts.
Administrative decisions, which are founded on pre-determined

standards, are called objective decisions whereas decisions which
involve a choice, as there is no fixed standard to be applied are so
called subjective decisions.
The former is a quasi-judicial decision, while the latter is an

administrative decision. In case of an administrative decision, there is
no legal obligation, upon the person charged with the duty of
reaching the decision, to consider and weigh submissions and
arguments or to collate any evidence.
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However, the Supreme Court observed, ‚It is well settled that the old
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distinction between a judicial act and administrative act has withered

away and we have been liberated from the pestilent incantation of

administrative action.‛
Test
No ‘cut and dried’ formula to distinguish quasi-judicial functions from

administrative functions can be laid down. The dividing line between
the two powers is quite thin and being gradually obliterated. For
determining whether a power is an administrative power or a quasi
judicial power, one has to look to the nature of the power conferred,
the person or persons on whom it is conferred, the framework of the
law conferring that power, the consequences ensuing from the
exercise of that power and the manner in which that power is
expected to be exercised. The requirement of acting judicially in
essence is nothing but a requirement to act justly and fairly and not
arbitrarily or capriciously. The procedures which are considered
inherent in the exercise of quasi-judicial power are merely those
which facilitate if not ensure a just and fair decision. In recent years,
the concept of quasi-judicial power has been undergoing a radical
change. What was considered as an administrative power some years
back is now being considered as a quasi-judicial power.
Whether a particular function is administrative or quasi-judicial must

be determined in each case on an examination of the relevant statute
and the rules framed thereunder and the decision depends upon the
facts and circumstances of the case.
5.5. Ministerial Action / Power

A further distillate of administrative action is ministerial action.
Ministerial action is that action of the administrative agency, which is
taken as matter of duty imposed upon it by the law devoid of any
discretion or judgment. Therefore, a ministerial action involves the
performance of a definitive duty in respect of which there is no
choice. Collection of revenue may be one such ministerial action.
1. Notes and administrative instruction issued in the absence of
any
2. If administrative instructions are not referable to any statutory
authority they cannot have the effect of taking away rights
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vested in the person governed by the Act

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5.6. Duty of Acting Fairly
Since ‘fairness in action’ is required from Government and all its

agencies, the recent trend is from ‘duty to act judicially’ to ‘duty to act
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fairly.’ ‘Duty to act fairly’ is indeed a broader notion and can be
applied even in those cases where there is no lis. It is this concept
(‘duty to act fairly’), which has given rise to certain new doctrines, e.g.
‘fair play in action’, legitimate expectations, proportionality etc.
In Province of Bombay v. Khushaldas S. Advani which was the first

leading Indian decision on the Point, Under Section 3 of the Bombay
Land Requisition Ordinance, 1947, the Provincial Government was
empowered to requisition any land for any public purpose ‚if in the
opinion of the Government‛ it was necessary or expedient to do so. It
was contended that the Government while deciding whether
requisition was for a public purpose, had to act judicially. The High
Court of Bombay upheld the said contention. Reversing the decision
of the High Court, the Supreme Court held by a majority that
the governmental function of requisitioning

property was not quasi judicial, for the decision
was based on the subjective satisfaction of the
Government and it was not required to act
judicially.
Similarly, in R. v. Metropolitan Police Commr., ex p. Parker, a cab

driver’s licence was revoked on the ground of alleged misconduct
without giving reasonable opportunity to him to rebut the allegations
made against him. The court upheld the order on the ground that the
licence was merely a permission which could be revoked at any time
by the grantor, and in doing so he was not required to act judicially.
34Page

SECTION II
DELEGATED LEGISLATION
Topic 6. Delegated Legislation : Introduction

According to the traditional theory, the function of the executive is to
administer the law enacted by the legislature, and in an ideal state,
legislative power must be exercised exclusively by the legislators who
are directly responsible to the electorate. But a trend very much is
vogue at the present time in all democratic countries is that only
relatively small parts of the total legislative output emanates directly
from the legislature.
The matter of the fact that apart from the ‚Pure‛ administrative
function, the executive performs many legislative and judicial function
also the bulk of legislation is promulgated by the executive as a
delegate of the legislature, and it is known as the ‚Delegated
legislation‛.
There is no precise definition of the expression delegated legislation.

It is equally difficult to state with certainly the scope of such
delegated legislation.
According to Salmond, “The expression delegated legislation as that

which proceeds from any authority other than sovereign power and is
therefore dependent for its continued existence and validity on some
superior or supreme authority‛.
Mukherjee says that ‚delegated legislation is an expression which

covers a multitude of confusion. It is an excuse for the legislators,
shield for the administrators and procreation to the constitutional
jurist‛
According to the M P Jain and S N Jain, the term ‚Delegated

legislation‛ is used in two sense:
(i) exercise by subordinate agency of the legislative power

delegated to it by the legislature, or
(ii) the subordinate rules which themselves which are made by
the subordinate authority in the pursuance of the power
conferred on it by the legislature.
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In its 1st application it means that the authority making the legislation
is subordinate to the Legislature legislative powers are exercise by an
authority other than the Legislature exercise of the powers delegated
or conferred on them by the legislature itself this is known as
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subordinate legislation because the power of authority which makes
is are limited by the statute which conferred the powers and
consequently it is valid only insofar as it keeps within those limits.
2nd connotation the ‚Delegated legislation‛ means and includes all

rules, regulations, bye laws, orders etc.
In simple words or meaning the expression ‚Delegated legislation‛

may be given as when the function of legislation is entrusted to two
organs other than the Legislature itself the legislation made by such
organs is called delegated legislation.
6.1.Factors for the Growth of Delegated Legislation
The factors responsible for the growth of the delegated legislation are
6.1.1. Pressure upon Parliamentary Time
As a result of the expanding horizons of State activity, the bulk of

legislation is so great that it is not possible for the legislature to
devote sufficient time to discuss all the matters in detail (even if the
parliament sits all the 365 days and 24/7, it may not be able to give
the quality of the legislation which is required for the proper
functioning of the modern government. Therefore, legislature
formulates the general policy ‚the skeleton‛ and empowers the
executive to fill in the details by issuing necessary rules, regulations,
bye-laws, etc.
6.1.2. Technicality
Sometimes, the subject-matter on which legislation is required is so

technical in nature that the legislator, being himself a common man,
cannot be expected to appreciate and legislate on the same, and the
assistance of experts may be required. Members of Parliament may be
the best politicians but they are not experts to deal with highly
technical matters which are required to be handled by experts. Here
the legislative power may be conferred on expert to deal with the
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technical problems, e.g. gas, atomic energy, drugs, electricity, etc.

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6.1.3. Flexibility

At the time of passing any legislative enactment, it is impossible to

foresee all the contingencies, and some provision is required to be
made for these unforeseen situations demanding exigent action. A
legislative amendment is a slow and cumbersome process, but by the
device of delegated legislation, the executive can meet the situation
expeditiously, e.g. bank-rate, police regulation export and import,
foreign exchange, etc. for the purpose, in many statutes, a ‚removal of
difficulty‛ clause is found empowering the administration to
overcome difficulties by exercise of the delegated power.
6.1.4. Experiment
The practice of delegated legislation enables the executive to

experiment. This method permits rapid utilization of experience and
implementation of necessary changes in application of the provisions
in the light of such experience, e.g. in road traffic matters, an
experiment may be conducted and in the light of its application
necessary changes could be made. Delegated legislation thus allows
employment and application of past experience.
6.1.5. Emergency
In times of emergency, quick action is required to be taken. The

legislative process is not equipped to provide for urgent solution to
meet the situation. Delegated legislation is the only convenient
remedy. Therefore, in times of war and other national emergencies,
such as aggression, break- down of law and order, strike, 'bandh', etc.
the executive is vested with special and extremely wide powers to
deal with the situation. There was substantial growth of delegated
legislation during the two World Wars. Similarly, in situation of
epidemics, floods, inflation, economic depression, etc. immediate
remedial actions are necessary which may not be possible by lengthy
legislative process and delegated legislation is the only convenient
remedy.
6.1.6. Complexity of Modern Administration
The complexity of modem 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
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to traditional legislative process, the entire object may be frustrated

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by vested interests and the goal of control

and regulation over private trade and business may not be achieved
at all. The practice of empowering the executive to make subordinate
legislation within the prescribed sphere has evolved out of practical
necessity and pragmatic needs of the modem welfare State.
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Topic 7. Delegated Legislation : Classification
7.1.Title based classification:
Delegated legislation may be in the form of rule, regulations, bye

laws, notifications, schemes, order, ordinances, directions, accept
‚rule‛ in the sense it is exercise of power conferred by the enactment
and shall include the regulation made as a root under any enactment
these rules can be read applicable particular individual or two other
general public it may include rules of procedure for rules of
substantive law in nature regulation clean an instrument by which
decisions
Orders and acts of the government are known to the public such as
situation where power is given to fix the date for the enforcement of
an act or to grant exception from the act or fix prices etc. Direction is
an expression of Administrative rule making under the authority of
law or rules orders made under they may be recommendatory or
mandatory.
7.2. Discretion based classification:
Condition for conditional legislation may be defined as a statute that

provides control but specifies that they are to go into effect only
when a given administrative authority find the existence of conditions
defined in the statute itself. Condition for conditional legislation is a
fact finding and subordinate legislation is discretionary legislation.in
simple words it can be expressed as the legislation which provides the
gun and the gunpowder is provided by the legislature and the
administrative authority is the only required to pull the trigger but in
subordinate legislation the administrative authority is to manufacture
the gunpowder also. This noted that distinction is hardly real.
Discretion may be conferred on the executive to bring the act into

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operation on fulfilment of certain conditions such legislation is called

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conditional or contingent legislation. The distinction between

conditional legislation and delegated legislation exist in this that

where a conditional legislation contains no element of delegation of
Legislative powers and is therefore not open to attack on the ground
of excessive delegation delegated legislation does confirm some
legislative power on some outside authorities and is therefore open
to attack on the ground of excessive delegation.
In the case of King emperor v. Benoari Lal Sharma, the Privy

Council for the first time upheld the validity of the Governor Generals
Ordinance of special course which had delegated the bar to extend
the duration of Ordinance on provisional governments in case of an
emergency on the ground of conditional legislation. The Privy Council
observed that it was a piece of conditional legislation as the
legislation was what’s complete and what had been dedicated was
the power to apply the act on the fulfilment of certain conditions.
The supreme court also in the case of Inder Singh v. State of

Rajasthan ,append the validity of the Rajasthan Tenants Protection
Ordinance on the ground that it is conditional legislation. The
ordinance was promulgated for 2 years, but Section 3 had authorised
the Governor to extend its life by issuing notification if required.
In the same manner in I. T. C. Bhadrachalam paper boards v.

Mandal Revenue officer the court held that power conferred on
government to bring an act into existence to grant exemption under
it is a conditional legislation and not delegated legislation.
In Union of India v. Shri Gajanan Maharaj Sansthan the court was

of the view that start youth providing that a certain provision there off
would come into force on a date to be notified by the government is
a conditional legislation and such a power did not enable the
government to decide whether to bring or not to bring that provision
into force. However, no mandamus can be issued against the
government to provide weather provision should be enforced and
when the government would be able to do it.
7.3. Authority based classification (Sub- delegation):
When the rule-making authority delegates to itself or to some other

subordinate authority a further power to issue rules, such exercise of
rule-making power is known as sub-delegated legislation. Rule-
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making authority cannot delegate power unless such power of

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delegation is contained in the enabling Act. Such authorization may

be either express or by necessary implication.
Maxim ‘delegatus non potest delegare’ indicates that sub-

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delegation of power is normally not allowable, though the legislature
can always provide for it. If the authority further delegates its law-
making power to some other authority and retains a general control
of a substantial nature over it, there is no delegation as to attract the
doctrine of ‘delegatus non potest delegare.’ The maxim was originally
invoked in the context of delegation of judicial powers and implied
that in the entire process of adjudication, a judge must act personally
except in so far as he is expressly absolved from his duty by a statute.
Sub-delegation in very wide language is improper and some
safeguard must be provided before the delegate is allowed to sub-
delegate his power.
However, it is accepted at all hands that a rigid application of the

doctrine of separation of powers is neither desirable and non-feasible
in view of the new demand on the executive. Governmental function
had increased and it was impossible for the congress to enact all the
statutes with all particulars. The Supreme Court of USA is also taking a
liberal view and in number of the cases upheld delegation of
legislative power.
In general, the maxim deals with delegation
The maxim is a principle in the constitutional and administrative law

which means that a person to whom an authority or decision-making
power has been delegated to from a higher source, cannot, in turn,
delegate again to another unless the original delegation explicitly
authorized it. In simple terms, a delegate cannot re-delegate. The
maxim is derived from and is most frequently applied in matters
relating to principal and agent but is not confined thereto.
Illustration
An auditor who has been appointed to audit the accounts of a

company cannot delegate the task to another unless expressly
allowed to do so. If express authorization has not been granted the
auditor will have acted ultra vires.
40
In Hemdard Dawakhana vs. Union of India, Supreme Court held

that there is no specific bar in our constitution against the delegation
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of legislative power by the Legislature to the Executive. However, it is

now well settled that essential legislative functions cannot be
delegated by the legislature to the executive. It means that the
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. Delegation of legislative power cannot amount to
abdication of essential legislative functions.
Similarly in Ultra Tech Cement Limited vs. The Union of India and
Ors. the Kerala High Court held that ‚Sub-delegation implies a further
delegation of the same power, which was originally delegated by the
legislature. The governing principle is that legislative powers must be
exercised by the delegatee himself and by none else. A delegatee
cannot further delegate his power unless the parent law permits it to
do so. In the above context, the doctrine delegatus non potest
delegare, that is, a delegatee cannot further delegate, comes into
play. Thus, if a law confers power on the Central Government to make
rules, it cannot further delegate that power to any other officer, unless
the parent law itself gives authority to the Government to that effect.‛
Express Power
There is no difficulty as regards the validity of sub-delegation where

the statute itself authorises the administrative agency to sub-delegate
its powers because such a sub-delegation is within the terms of the
statute itself.
Thus in Central Talkies v. Dwarka Prasad, under the U.P. Control of

Rent and Eviction Act, 1947, it was provided that no suit shall be filed
for the eviction of a tenant without the permission of either a District
Magistrate or any Officer authorised by him to perform any of his
functions under the Act. The Additional Magistrate to whom the
powers were delegated made an order granting permission.
The Supreme Court held the order valid. But in Allingham v. Minister
of Agriculture, under the Defence Regulations, 1939, the Committee
was authorised by the Minister of Agriculture ‚to give such directions
with respect to the cultivation, management or use of land for
agricultural purposes as he thinks necessary.‛ The committee sub-
delegated its power to its Subordinate Officer, who issued a direction,
41
which was challenged. Holding the direction ultra vires, the Court
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ruled that the sub-delegation of power by the committee was not

permissible.
Implied Power
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The point is not clear as to what would be the position if there is no
specific or express provision in the statute for sub-delegation of
power. In Jackson v. Butterworth, it was held that the method of
sub-delegating power to issue circulars to local authorities was
convenient and desirable but the power to sub-delegate was absent.
However, the other view is that although there is no provision
enabling Act authorising sub-delegation of power by the delegate,
the same may be inferred by necessary implication.
7.4. Nature-based classification:
Classification of the administrative rule making may be based on the

nature and extent of delegation. It can be of two major types :
(i) Normal Delegation and

(ii) Exceptional delegation
I. Normal delegation
Normal delegation can again be of the following two categories :
a) Normal Positive and

b) Normal Negative
 Positive- where the limits of delegation are clearly defined in

the enabling Act.
 Negative- where power delegated does not include power to
do certain things, i.e.,legislate on matters of policy.
II. Exceptional delegation
 Instances of exceptional delegation may be:

 power to legislate on matters of principle
 power to amend Acts of Parliament
 power conferring wide discretion that is almost impossible to
know the limits
 power to make rules without being challenged in a court of
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law
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Such exceptions are collectively known as the Henry VIII clause to

indicate executive autocracy. The King of England in the 16th century
imposed his autocracy will through the instrumentality of the
parliament. Under this clause, very wide range of the powers is given
to the administrative agencies to make rules, including the power to
amend and repeal the laws. The classical illustration of Henry VIII
clause is found in the Constitution itself under article 372(2) of the
Indian Constitution, where the president has been the power to
adopt, amend and repeal any law in force to bring it in line with the
provision of the constitution, and exercise of such power has been
made immune from the scrutiny of the courts.
Topic 8. Delegated Legislation : Validity
8.1. Constitutionality of Delegated Legislation US
In theory under the US Constitution, delegated legislation is not

accepted because of two doctrines, viz.,
(i) Separation of Powers and

(ii) Delegatus non protest delegare
8.1.1. Separation of Powers
This Doctrine is recognised by the U.S Constitution and by Article 1

legislative powers is expressly conferred on the Congress. Article II
states that the executive power shall be wasted in the President and
under Article III the Judiciary has power to interpret the Constitution
and declare any statute unconstitutional if it does not confirm to the
provisions of the constitution.
In the leading case of Field v. Clark the US Supreme Court observed

that
“Congress cannot delegate legislative powers to

the President is a principle universally recognised
as vital to the integrity and maintenance of the
system of government ordained by the
constitution”.
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8.1.2. Delegatus non protest delegare

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According to this Doctrine, a delegate cannot further delegate his

power. As the Congress gets power from the people and is a delegate
of the people in that sense it cannot for the delegate its legislative
powers to the executive or to any other agency. A power conferred
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upon and agent because of his fitness and the confidence reposed in
him cannot be delegated by him to another is a general and admitted
rule. Legislatures stand in this relation to the people whom they
represent. Hence it is a cardinal principle of representative
government that the legislature cannot delegate the power to make
laws to any other body or authority.
In Practice, though in theory it was not possible for the Congress to

delegate its legislative powers to the executive, strictly adherence
thereto was not practicable. Governmental functions had increased
and it was impossible for the Congress to enact all the statutes with
all particular. The Supreme Court could not shut its eyes to this reality
and try to create a balance between the two conflicting forces:
1. Doctrine of separation of powers barring delegation and

2. Inevitability of delegation due to the exigencies of the Modern
Government.
In Panama Refining Company vs Ryan, popularly known as the hot

oil case under Section 9(c) of the National Industrial Recovery Act
1933 ( NIRA) the President was authorised by the Congress to
prohibit transportation of oil in interstate commerce in excess of the
quota fixed by the state concerned. The policy of the Act was to
recover encourage National industrial recovery and to foster fair
competition. The Supreme Court by the majority held that the
delegation was invalid. According to the court the Congress had not
declared any legislative policy or standard.
In Schechter Poultry Corpn. V. United States (Sick Chicken Case)

the Supreme Court unanimously struck down Section (3) of NIA Act,
1933 which authorised the President to approve codes of fair
competition and violation thereof who was made punishable. The
court held that the discretion of the president was virtually unfettered.
And this was delegation running riot.
After the two cases mentioned above the Supreme Court took a
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liberal view in many cases upheld delegation of legislative power.

Thus, in National Broadcasting Company v. UnitedStates, 1943
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vast powers were conferred upon the Federal Communication

Committee (FCC) to licence broadcasting stations under the
Communications Act, 1934 the criterion was ‚Public Interest,
Convenience or Necessity‛ though it was vague and ambiguous, the
supreme court held it to be a valid standard.
Similarly in Yakus v. United States,1944 under the Emergency Price

Control Act, 1942 the price administrator was given the power to fix
such maximum price which is ‚in his judgement will be generally fair
and equitable and will effectuate the purpose of the Act‛
administrator was required so far as practicable to give due
consideration to the prices prevailing between 1st October and 15th
October 1941 but was allowed to consider a later date is necessary
data were not available and yet the supreme court sustained the
delegation, holding that the standards were adequate and as righty
observed by the majority judgement of sick chickens case was
overruled.
In Mistretta v. United States, sentencing guidelines were

promulgated by provided range to determine sentences for
categories of offences and offenders according to various factors
specified by the commission. Mistretta who was indicated for sale of
cocaine, challenged the guidelines contending that Congress
delegated excessive authority to the commission to structure the
guidelines. The Supreme Court concluded that the contention of the
petitioner that the commission had significant description in
formulating guidelines could not be disputed. It has also power to
determine which crimes should be punished leniently or severely.
But that did not mean that there was a no policy. Congress well
conferring power on the commission neither delegated legislative
powers to the executive nor upset the constitutionally mandated
balance of powers among the co-ordinate branches.
In Whitemen vs American Trucking Association, the legislature

delegated legislative powers to the Environmental Protection Agency
(EPA) to promulgate ‚air quality criteria‛ the relevant act or also
authorised EPA to review such standard and make such revisions as
may be appropriate. The provision was challenged on the ground of
excessive delegation of Legislative
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powers to EPA without providing ‚intelligible principle‛ the court of

appeal upheld the contention. The Supreme Court however held the
delegation valid observing that a certain degree of discretion to the
agency could be allowed referring to Mistretta, the court stated that
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to require the EPL to set quality standards at the level that is ‘requite’
that is not lower or higher than is necessary to protect the public
health with an adequate margin of safety, fits comfortably within the
scope of discretion permitted by a precedent.
From the above decisions it clearly emerges that the traditional theory
has been given up and the Supreme Court has also adopted a liberal
approach. Thus, pragmatic considerations have prevailed over
theoretical objections.
Topic 8.2. Delegated Legislation in India
Delegated legislation’s status and constitutionality in India can be

shown in various cases. It is separated into two phases: before
independence (pre-independence) and after independence (also
known as post-independence).
8.2.1. Pre Independence Period
R v. Burah, 1878 is considered to be the leading authority on the

subject the area of Garro Hills was removed from the jurisdiction of
civil and criminal courts and by Section 9 the lieutenant-governor was
empowered to extend civil or criminal all or any of the provisions of
the Act applicable to Kashi Janata and Naga Hills in the Garros Hills
and to fix the date of such application. By notification dated 14th
October 1871, the Lieutenant Governor extended all the provisions of
the Act to the district of Kashi, Jaintia and Naga hills. The applicant
who were convicted of Murder and sentenced to death challenged
the notification. The High court of Calcutta by the majority upheld the
contentions of the appellant and held that Section 9 of the Act was
ultra-virus the powers of the Indian legislature. According to the court
the Indian legislature was a delicate of Imperial Parliament and
therefore further delegation that is (sub-delegation) was not
permissible. On the appeal Privy Council, it was held that
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the Indian legislature was not an agent or delegate

Page
of the Imperial Parliament it had plenary powers

of legislation as those of the Imperial Parliament

itself. It agreed that the Governor General in
Council could not, by legislation, create a new
legislative power in India not created or authorised
by the council’s Act.
(Emphasis Supplied)
But in fact it was a not done it was only a case of conditional

legislation, as the Governor was not authorised to pass any new law
but merely to extend the provisions of the Act enacted by the
competent Legislature upon fulfilment of certain conditions.
In Jitendra Nath Gupta v. Province of Bihar,1949 the Bihar

maintenance of public order Act 1948 was to remain in force for one
year. However the power was conferred on the provincial government
to extend the operation of the Act for a further period of one year by
a majority, of the federal court held that the power to extend the
operation of the act beyond the period of 1 year was a legislative act
and therefore, could not be delegated.
subsequently in SardarInder Singh v. State of Rajasthan, 1957 the

Supreme Court upheld a similar provision.
In re Delhi Laws Act, case 1951 was the first leading case decided by
the Supreme Court on delegated legislation after the constitution
came into force. A reference was made to the Supreme Court by the
President of India under Article 143 of the Constitution. In the
circumstances enumerated therein Central Government was
authorised by Section 2 of the Part ‘C’ States ‘laws’ Act, 1952 to
extend the laws to any part ‘C’ state with such notifications and
restrictions as if thinks fit, any enactment in force in a part a state well
doing so it could repeal or amend any corresponding law ‚other than
a Central Act‛ which might be in force in part C state.
The Supreme Court was called upon to decide the legality of

aforesaid provision. All the seven judges who heard by reference gave
their separate opinions ‚exhibiting a cleavage of judicial opinions‛ on
the question of limits to which the legislature in India could be
permitted to delegate its legislative power.
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The majority held the provision valid subject to two limitations:

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1. The executive cannot be authorised to repeal a law in force

and thus, the provision which empower the central
government to repeal a law already in force in the part C state
was bad.
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2. By exercising the power of modification, the legislative policy
should not be changed and thus, before applying any law to
the part C state the central government cannot change the
legislative policy
8.2.2. Post-independence
The Indian Constitution does not take the same delegation of

legislative powers as the influential British Parliament. The extent to
which delegation is permissible in India must be determined as a
matter of construction from the express provisions of the Indian
Constitution. There is no such thing as an inexhaustible right of
delegation inherited in legislative power.
The Supreme Court of India upheld the delegation of the power

conferred to the executive body by the legislative body in the Raj
Narain Singh v. Chairman, Patna Administration Committee Air
(1954) case. This case empowered the local government to extend any
provisions of the act (Bengal Municipality Act).
Nothing in the Indian constitution expressly prohibits the legislature’s

power to delegate. But there are two constitutional limitations on
legislative delegation, which were laid down in the case named Re
Delhi Laws Act (1951) :
Legislature cannot delegate its essential legislative functions.
The power conferred on a subordinate authority or executive body

should not suffer from excessive delegation.
Topic 9. Control over Delegated Legislation

The control of delegated legislation may be one or more of the
following types: -
a. Procedural;
b. Parliamentary; and
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c. Judicial
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9.1. Procedural Control

a)Prior consultation of interests likely to be affected by

proposed delegated Legislation
This method has largely been developed by the administration

independent of statute or requirements. The object is to ensure the
participation of affected, interests so as to avoid various possible
hardships. The method of consultation has the dual merits of
providing an opportunity to the affected interests to present their
own case and to enable the administration to have a first-hand idea
of the problems and conditions of the field in which delegated
legislation is being contemplated.
b) Prior publicity of proposed rules and regulations
Another method is antecedent publicity of statutory rules to inform

those likely to be affected by the proposed rules and regulations so
as to enable them to make representation for consideration of the
rule-making authority.
c) Publication of Delegated Legislation
Adequate publicity of delegated legislation is absolutely necessary to

ensure that law may be ascertained with reasonable certainty by the
affected persons. Further the rules and regulations should not come
as a surprise and should not consequently bring hardships which
would naturally result from such practice. If the law is not known, a
person cannot regulate his affiars to avoid a conflict with them and to
avoid losses.
Procedural control can be either mandatory or directory, to know,

certain specified parameters are given:
 Scheme of the Act.

 Intention of Legislature.
 Language used for drafting purpose.
 Inconvenience caused to the public at large scale.
These four parameters were given in the case Raza Buland Sugar Co.
vs. Rampur Municipal Council.
9.2. Parliamentary Control

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In India parliamentary control of administrative rule-making is implicit

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as a normal constitutional function because the executive is

responsible to the Parliament. ‚Parliamentary control‛ is an inherent

constitutional function because the executive is responsible to the
legislature at two stages of control.
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 Initial stage
 Direct and Indirect stage
In the Initial stage, it is to decide how much power is required to be

delegated for completing the particular task, and it also observed that
delegation of power is valid or not.
Now, the second stage consists of two different parts.
(i) Direct control

(ii) Indirect control
9.2.1. Direct control
Laying is an important and essential aspect under direct control and it

is laid down as per the requirement which means that after making
the rule it should be placed before the Parliament. It includes three
important part as per the degree of control needs to be exercised.
 Simple Laying
 Negative Laying
 Affirmative Laying
And ‚test of Mandatory‛ & ‚Test of Directory‛ are two main test.
Test of Mandatory – Where the laying demand is a condition pattern

to guide the rule into impact then in such a case laying need is
mandatory. Where the provision is mentioned that the rules should
be drafted in a particular format then it becomes mandatory to follow
the format.
Test of Directory – Where the laying need is next to enforce the rule
into operation then it will be directory in nature.
In India, Atlas Cycle Industries Ltd v. State of Haryana, the

Supreme Court noticed that there are three different link clauses
which assume different forms depending on the degree of control
which the legislature may like to exercise namely as well as the select
committee on delegated legislation summarised the procedure under
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seven heads:
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i. Laying without further procedures.

ii. Laying subject to affirmative resolution.
iii. Laying subject to negative resolution.
iv. Laying in draft subject to negative resolution.
v. Laying in draft subject to an affirmative
resolution.
vi. Laying with deferred operation.
vii. Laying with immediate effect but subject to
annulment.
Laying with no further direction: In this type of playing, the rules

and regulations come into effect as soon as they are laid. It is simply
to inform the house about the rules and regulation.
Laying subject to negative resolution: in this process the rule come

into effect as soon as they are placed on the table of the house, shall
cease to have effect if negated by a resolution of the house.
laying subject to affirmative resolution: this technique may take

two shapes:
(i) that the rules shall have no effect or force unless approved by
a resolution of each house of the Parliament
(ii) that the rules shall cease to have effect unless approved by an
affirmative resolution.
In these both processes, it is the duty of the government to move

resolution.
Laying in draft subject to negative resolution: such a provision

provides that when any Act contains provision for this type of Laying
the draft rules shall be placed on the table of the house and shall
come into force after 40 days from the date of laying unless
disapproved before that period.
Laying in draft subject to an affirmative resolution: In this type of

laying, the instruments or draft rules shall have no effect unless
approved by the house.
laying with deferred operation: the requirement of laying is linked

with postponement of operation of the rules and thus parliament gets
more control.
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laying with immediate effect but subject to annulment: here the

rules come into force when laid before parliament, but cease to be in
operation if disapproved by it within the specified period.
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This is the most common form of Parliamentary control and is known
as the negative procedure.
Effect of Failure to Lay
In India, the position is not free from doubt. In Express Newspaper

(P) Limited v. Union of India, the supreme court observed by way of
obiter dicta that the provision regarding laying was mandatory. But in
Re Kerala Education Bill, the supreme court most emphatically and
lucidly observed: After the rules are laid before the legislative
assembly, they may be altered or amended and it is then rules as
amended become effective.
In Jan Mohammed Noor Mohammad Bagban v. State of Gujarat,

the court held that the rules made under the Parent Act, were valid,
and observed that though the rules were not laid before the
legislature, they became a valid from the date on which they were
made as the Act did not provide that they could in case be invalidated
by failure to place them before the Legislature.
In M. K. Papiah and Sons v. Excise Commr. the court held that the
rules under the parent Act came into force as soon as they were
framed. Negating the contention that the power of Legislature to
annul or repeal rules subsequently could not be regarded as a
sufficient control over delegated legislation. Mathew J. observed
"the dilution of parliamentary watchdogging the

delegated legislation may be deplored but, in the
compulsions and complexities of modern life,
cannot be helped".
Whatever are the consequences of failure to lay it is submitted that

the correct answer is to this question depends on the terms relating
to a particular laying clause. If the provision relating to laying is a
condition precedent, the requirement of laying must be held to be
mandatory and the rules do not come into force until they are laid. In
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case of "negative Clause", however, the rules come into operation

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immediately and the provision of laying is generally construed as

directory
9.2.2. Indirect control
This is a control exercised by Parliament and its committees. Another

name for such type of committee is Subordinate legislation. The main
work of the committee is to examine
 Whether rule are according to general object of the act.

 It bars the jurisdiction of the court in direct or indirect ways.
 Whether it has retrospective effect or not.
 Whether it safeguard or destroy the Principle of Natural
Justice.
 Expenditure involved in it is from Consolidated fund.
9.3. Judicial Control
In India Judicial review of Administrative rule-making is subject to

normal rules governing the review of Administrative action.
Nevertheless, the principles on which the Constitutionality of a statute
is judged and that of subordinate legislation are different. A
subordinate legislation could not enjoy the same degree of immunity
as like a legislative Action (Act). This judicial review of administrative
rule- making cannot be barred in any manner by the enabling Act. It
was held in the State of Kerala v. Unnikrishnan, Judicial review of
Administrative rule-makingcannot be a foreclosed in any manner by
the enabling Act.
In the State of Kerala v. KMC Abdullah and Co. SC held that
the validity of the rules can still be challenged

even in the face of such a phrase as "shall not be
called in question in any court" in the enabling
Act.
In the same manner in General Officer Commanding-in- Chief v.

Subhash Chandra Yadav, the supreme court held that an Act
providing that rules made thereunder on publication in official
Gazette would be "as if enacted" In the Act, cannot take away judicial
review.
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The doctrine of ultra vires is the basic doctrine in administrative law.

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The doctrine envisages that an authority can exercise only so much

power as is conferred on it by law. An action of the authority is intra

vires when it falls within the limits of the power conferred on it but
ultra vires if it goes outside this limit. The doctrine of ultra vires has
two aspects: substantive and procedural.
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Judicial control over delegated legislation can have the three
dimensions. They include :
1) Constitutionality of Parent Act or Enabling Act

2) Constitutionality of Delegated Legislation itself.
3) Delegated legislation is Ultra vires to Enabling Act.
9.3.1. Constitutionality of Parent Act
In India, there is supremacy of the Constitution and therefore an act

passed by the Legislature is required to be in conformity with the
constitutional requirement and if it is found to be in violation of the
constitutional provisions, the court declares it unconstitutional and
void. If enabling or parent act (i.e the act providing for the delegation)
is void and subordinate or delegated legislation made under the act
will also be declared to be unconstitutional and therefore void. The
limits of the Constitution may be express and implied. Express limits
include those prescribed explicitly by the constitution. Article 13, 245
and 246 are examples of such provisions. Implied limits on otherhand
donot prescribe explicit restrictions, it Is that essential legislative
function entrusted to the legislature by the Constitution cannot be
delegated by it.
In a case the Supreme Court has made it clear that the essential
legislative function which consists of the determination of the
legislature policy cannot be delegated. Such delegation would
amount to abdication of the essential legislative functions.
9.3.2. Delegated Legislation is Unconstitutional
Sometimes it is found that the Enabling or Parent Act is not violative

of the Constitution, but the subordinate or delegated legislation
made under It violates the provisions of the Constitution. Such
subordinate or delegated legislation will be unconstitutional and void,
though the Enabling or Parent Act is perfectly valid. Thus, the
subordinate or delegated legislation, (e.g., rules, regulations, by- laws,
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etc.) made under the Enabling or Parent Act may be unconstitutional

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while the Enabling or Parent Act is constitutional.

Article 31-B of the Constitution of India is also notable here. The Acts
and Regulations Included in the IXth Schedule of the Constitution are
protected under Article 31-B against the ground of Infringement of
any of the Fundamental Rights, but not against other grounds. But it
should be noted that, the delegated legislation may be challenged on
the ground that it violates the Constitution, even though the Enabling
or Parent Act under, which it has been made is protected by Article
31-B.
9.3.3. Delegated Leg. In Conflict with the Parent Act
The validity of the subordinate or delegated legislation can be

challenged on the ground that it is ultra vires the Enabling or Parent
Act. If the subordinate or delegated legislation made by the delegate
is in excess of the power conferred by the Enabling or Parent Act or is
in conflict with the provisions of the Enabling or Parent Act or is made
without following the procedure required by the Enabling or Parent
Act to be followed by the delegate, the delegated or subordinate
legislation will be invalid on the ground that it Is ultra vires the
Enabling or Parent Act.
In S.T.O. v. Abraham the Act empowered the Government to carry

out the purposes of the Act the Government made rule so as to fix
the last date for filing the declaration forms by dealers for getting the
benefit of concessional rates on inter-State sales. This rule was held to
be ultra vires the Enabling Act on the ground that the Act empowered
the Government for making rules for prescribing the particulars to be
mentioned in the forms and it was not given power to prescribe a
time-limit for filling the form.
Other grounds for review of administrative action by judiciary

includes the following.
A) Abuse of Discretionary Powers:
 Irrelevant consideration
 Improper purpose
 Errors of law
 Unauthorised delegation
 Fettering of discretion
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(B) Proportionality
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9.4.Exclusion of Judicial Review(Herschell Doctrine)
Quite often, statutes make an attempt to exclude judicial control of

delegated legislation, by providing that the rules made under and Act
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shall not be called in question in any court and they may also provide
that the rules made under any Act will have effect as if enacted in the
Act. The fundamental question here is whether such provision in the
statute would prevent judicial review of delegated legislation under
the statute.
In England, this question was examined by the house of Lords in

Institute of Patent Agents v. Lock Wood, in this case, Lord
Herschell observed that a clause to the effect that "the rules made
under the statute shall have the same effect as if they were contained
in this Act" would for all purpose mean that the rule would be part of
the Act and for all purposes one has to treat the rule exactly as if they
were in the Act. This is known as Herschel Doctrine.
However, this rule has been modified in Minister of Health v. King ,

in this case, the House of Lords held that if the rule or the scheme
made under the delegated power was inconsistent with the parent
Act, the parent Act would prevail unless the rule or the scheme was
incorporated in a subsequent Act of the Parliament.
Position in India
The position in India is not very clear. In Ravalu Shubha Rao v.

Income Tax commissioner, it appears that the Supreme Court has
adopted the Herschel Doctrine but in Chief Commissioner of Ajmer
v. Radheshyam, Supreme Court the Doctrine was not followed.
However, in Orient weaving Mills v. Union of India, the Supreme
Court again adapted the Herschel Doctrine. The various High Courts
have taken conflicting stands.
In State of Kerala v. Abdulla and Co. court made the, following

observations:
"Power to frame rules is conferred by the Act upon

the state government and that power may be
exercised within the strict limits of the authority
conferred. If in making a rule, the state transcends
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its authority, the rule will be invalid for statutory

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rules made in exercise of delegated authority are

valid and binding only if made within the limits of

authority conferred. Validity of a rule whether it is
declared to have effect as if enacted in the Act or
otherwise is always open to challenge on the
ground that it is unauthorised”.
The rule of law has always recognized power of judiciary to review

legislative and quasi legislative acts. The validity of a delegated
legislation can be challenged in a court of law. As early as 1877 in
Empress v. Burah, the High Court of Calcutta had declared Section 9
of Act XXII of 1869 ultra vires. Though the decision of the Calcutta
High Court was reversed by the Privy Council, neither before the High
Court nor before the Privy Council it was even contended that the
court had no power of judicial review and, therefore, cannot decide
the validity of the legislation.
Sometimes, however, attempts are made by the legislature to limit or

exclude judicial review of delegated legislation by providing different
modes and methods. Thus, in an Act a provision may be made that
rules, regulations, bye-laws made under it ‘shall have effect as if
enacted in the Act’, ‘shall be final’, ‘shall be conclusive’, ‘shall not be
called in question in any court’, ‘shall not be challenged in any legal
proceedings whatsoever’ and the like.
Topic 10. Conditional Legislation

When the law is complete and certain conditions are laid down as to
how and when the law would be applied by the delegate, it is
conditional legislation. It includes no law-making powers but only the
power of determining when it should come into force or when it
should be applied.
Supreme Court in Hamdard Dawakhana v. Union of India stated

that in conditional legislation, the delegate’s power is that of
determining when a legislative declared rule of conduct shall become
effective.
Conditional Legislation can be found in the occurrences where :-
(i) The legislature empowers the executive to expand the activity

of a current law to a specific area or region.
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(ii) To determine and decide the time of application of an Act to a

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given area.

(iii) To broaden the span of a Temporary Act, subject to maximum

period fixed by the legislative assembly.
(iv) To determine and decide the degree and limits within which
the statute or Act should be employable and operative.
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(v) Lastly, to introduce a special law if the contemplated situation
has arisen in the opinion of the government.
Conditional Legislation allows better implementation and better reach

of laws as it gives them ample discretion to work and to make
decisions regarding implementation in the best manner possible.
Thus, all the modern socio-economic welfare schemes are a formation
of the legislature, but they have become successful in the country
because of their implementation. All the ‚when, where and how‛
aspects of implementation have been ticked generously by the
government because of the discretion that they have been given by
the legislature for the implementation of the Acts framed by the
lawmakers. But this discretion cannot be exercised beyond the power
that has been delegated. If exceeded, then that action is null and void.
The landmark case for delegation of legislation is the Re : Delhi Laws

Act Case which revolved around the question of whether giving the
Lt. Governor the power to extend the application of law is delegation
of power? Privy council observed that Indian legislature is not an
agent or delegate but was intended to have plenary powers of
legislation and of the same nature of the parliament itself. It was
observed that Indian legislature had exercised its judgement as to the
place, person, law, powers and what the governor was required to do
was to make it effective upon fulfilment of certain conditions. This is
called conditional legislation which was upheld by the court. In
Jatindra Nath v. Province of Bihar it was held that there could be
no delegated legislation in India beyond conditional legislation.
The difference between delegated and conditional legislation was

given in the case of Hamdard Dawakhana v. Union of India, The
court said that:
Delegated legislation involves the rule-making power to be exercised

by the administrative authority. Whereas, in conditional legislation,
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there is no rule-making power given to the executive. It involves the

power to determine when legislation can become effective.
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In delegated legislation, the delegate completes the legislation by

filling in the details to it within the prescribed limits. On the contrary,
in conditional legislation, the legislation is complete. The delegate is
given the power to apply the law to an area or to determine the time
and manner of carrying it into effect.
Topic 11. Excessive Delegation

It is well settled that essential and primary legislative function must be
performed by the legislature itself and they cannot be delegated to
the executive. Essential legislative functions consist of determination
of Legislative policy and its formulation as a rule of conduct. In other
words, a legislature has to discharge the primary duty entrusted to it.
Once essential legislative powers are exercised by the legislature, all
ancillary and incidental functions can be delegated to the executive.
As observed in Arvinder Singh v. State of Punjab, the founding

document of the nation that is Constitution has created three great
instrumentalities and entrusted them with certain basic powers-
legislative, executive and judicial system. Abdication of these powers
by any organ would amount to do betrayal of the Constitution itself
and it is intolerable in law.
Abdication means abandonment. When the legislature does not

legislate and entrust the primary function to the executive or to any
outside agency, there is abdication of legislative power. Abdication
may be partial or total.
The question whether there is excessive delegation or not, has to be

examined in the light of three broad principles:
1. Essential legislative function to enact laws and to determine

legislative policy cannot be delegated.
2. In the context of modern conditions and complexities of
situations, it is not possible for the legislature to enact laws in
detail every possibility and make provisions for them. The
legislature, therefore, has to delegate the certain functions
provided it lays down legislative policy.
3. If the power is conferred on the executive in a manner which is
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lawful and permissible, the delegation cannot be held to be

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excessive nearly on the ground that a legislature could have

made more detailed provisions.
Test:
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In dealing with the challenge to the vires of any statute on the ground
of excessive delegation, it is necessary to enquire whether the
impugned delegation involved surrender of essential legislative
function and whether the legislature has a left enunciation of policy
and principle to the delegate. If the reply is in the affirmative, there is
excessive delegation but if it is in the negative, the challenge must
necessarily fail.
Statute challenged on the ground of excessive delegation must be

subjected to two tests:
(i) Whether it delegates essential legislative function.

(ii) Whether the legislature has enunciated its policy and principle
for the guidelines of the executive.
In deciding whether the legislature is enacting statute has exceeded

the limits of its authority to enunciate policy and principle, regards
should be had not to mere matters of form but to the substance of
what is done.
Topic 12. Administrative Discretion

Discretion in ordinary language can mean choosing from amongst the
various available alternatives without reference to any predetermined
criterion, no matter how fanciful that choice may be. A person writing
his will has such discretion to dispose of his property in any manner,
no matter how arbitrary or fanciful it may be. But the term ‚discretion‛
when qualified by the word "administrative‛ has somewhat different
overtones. ‘Discretion’ in this sense means choosing from amongst
the various available alternatives, but with reference to the rules of
reason and justice and not according to personal whims. Such
exercise is not to be arbitrary, vague and irrational but legal and
regular.
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In Halsbury in Sharp v. Wakefield observed:

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“Discretion means when it is said that something is

to be done within the discretion of the authorities
that something is to be done according to the rules
of reason and justice, not according to private
opinion ...according to lawand not humour.
12.1. Conferring of Discretion
Legislature rarely enact comprehensive complete legislations. More

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

authorities are as follows
 The present-day problems which the administration is called

upon to deal with are of complex and varying nature and it is
difficult to comprehend them all within the scope of general
rules;
 Most of the problems are new, practically of the first
impression. Lack of any previous experience to deal with them
does not warrant the adoption of general rules’
 It is not always possible to foresee each and every problem
but when a problem arises it must in any case be solved by
the administration in spite of the absence of specific rules
applicable to the situation’,
 Circumstances differ from case to case so that applying one
rule mechanically to all cases may itself result in injustice.
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12.3. Abuse of Discretion
It has been seen that administrative bodies do not exercise their

discretionary power for the purpose intended to by the legislature. It
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may also happen that the statute under which the powers are
conferred on the administrative authorities may not be an authorised
delegation. It is also generally found that the powers are exercised on
irrelevant consideration or sometime there appear some errors of law
in the discharge of its function. All these factors amount to the abuse
of discretionary powers and become ground for judicial review. Thus
the abuse of discretion may occur in the following ways.
 Irrelevant consideration
 Improper purpose
 Errors of law
 Unauthorised delegation
 Fettering of discretion
12.3.1. Irrelevant Considerations
It implies that the power conferred on administrative authority by a

statute on the consideration relevant to the purpose for which it is
conferred. If the statute mentions no such consideration, then the
power is to be exercised on consideration relevant to the purpose for
which it is conferred on the authority concerned. Therefore, if the
authority concerned pays attention to, or takes into account wholly
irrelevant or extraneous circumstances, events or matters, then the
administrative action is ultra-vires and bound to be quashed.
Indian Railway Construction Co. Ltd. v. Ajay Kumar It was has held
that
“the authority in which the discretion is vested can

be compelled to exercise that discretion but not
exercise it in any particular manner, in general, a
discretion must be exercised by the authority to
which it is committed. It must act in good faith,
must have regard to all relevant consideration and
must not be influenced by irrelevant
considerations, must not seek to promote purposes
alien to the letter or to the spirit of legislation that
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gives it power to act, and must not act arbitrarily or

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capriciously”

12.3.2. Improper purpose
If the statutory authority exercises discretion for a different purpose

the actions taken may be quashed on the ground to have exercised
that power for improper purpose. It may be specifically submitted
here that there is a distinction between improper purpose and mala-
fide exercise of power. The distinction is that the mala-fide purpose
may include ill-will, malice or oblique motive while these may be
absent in the former one.
In Pratap Singh v. State of Punjab, it was observed that
"It may be also possible to prove that an act of

public body, though performed in good faith and
without the taint of corruption, was so clearly
founded an alien and irrelevant ground as to be
outside the authority conferred upon the body and
therefore inoperative”.
12.3.3. Errors of Law
The court may review an administrative decision where there has

been an error of law on the face of the record or where such errors
are obvious. It is imperative to submit here that error must not
necessarily be a flagrant one, or relate to a simple or established
principle of law, but that the error must be readily ascertainable by
the supervising court.
12.3.4. Unauthorized Delegation
The principle is that when a power entrusted to a person in

circumstance indicating that trust is being placed in his individual
judgement and discretion, he must exercise that power personally
unless he has been expressly empowered to delegate it to another.
The very object of conferring a power on a particular administrative
body is that power must be exercised by the authority alone and must
not be delegated to other authority or official.
12.3.5. Fettering of Discretion
When a statute confers powers on an authority to apply a standard as

the case in administrative discretion, it is expected of it to apply it
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from case to case, and not fetter its discretion by declaration of rules
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or policy to be followed uniformly in all the cases.

It is submitted here that an authority entrusted with the discretionary

power must exercise the same after considering individual cases.
Instead if, authority-imposed fetters on its discretion by adopting
fixed rules of the policy to be applied in all cases coming before them
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is failure to exercise discretion on the part of that authority. What is
desirable from the authority is that, it must consider the facts of each
case, apply its mind and decide the same. Pronouncement of a
general rule to be applied to all cases irrespective of different facts
will certainly amount to imposing fetters on the discretion by self-
imposing rules of policy. It is not advisable to lay down any rigid rule
for guiding the discretion. Free discretion given by the statute would,
thus be fettered if the discretion is not allowed to be exercised in
accordance with the fact of each case.
Any order passed by the administrative authority may be declared

bad, if it imposed fetters on its discretion by self-imposed rules of
policy. If the government while making the policy decision, shuts its
ears to the merits of the individual cases, the action taken cannot be
sustained at all. Generally speaking it is in the fitness of things that an
authority entrusted with a discretion must not, by adopting a rule or
policy disable itself from exercising its discretion in individual cases.
The apex court in Somabhai v. State, observed:
“Generalization on matters which rest on

discretion and the attempt to discover formulae of
universal application when facts are bound to differ
from case to case frustrates the very purpose of
conferring discretion”.
12.4. Wednesbury Principles
It is a concept relating to the unreasonableness of administrative

discretion. These are the principles laid down by Court of Appeal in
Associated Provincial Picture Houses Ltd. v. Wednesbury Corp.
 The plaintiffs were the owners and licensees of a cinema

house. defendants were the licensing authority for that area,
the Wednesbury Corporation.
 The Wednesbury Corporation had the power under The
Cinematograph Act to grant licenses in any area for
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cinematograph performances.
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 Under the Sunday Entertainments Act, had the power to allow

a licensed place to be open and used on Sundays, ‚subject to
such conditions as the authority thinks fit to impose‛.
 The Wednesbury Corporation granted the license to the
plaintiffs on the condition that no children under 15 years,
whether accompanied by an adult or not, should be admitted
to Sunday performances.
Court held,
 In order to overturn the order of corporation court must be

satisfied that
 The corporation, in making that decision, took into account
factors that ought not to have been taken into account, or
 The corporation failed to take account factors that ought to
have been taken into account, or
 The decision was so unreasonable that no reasonable
authority would ever consider imposing it. (Wednesbury
unreasonableness)
 Court ruled in the favour of Corporation.
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SECTION III
STATUTORY TRIBUNALS
Topic.13. Tribunals
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Tribunal is a quasi-judicial institution that is set up to deal with
problems such as resolving administrative or tax-related disputes. It
performs a number of functions like adjudicating disputes,
determining rights between contesting parties, making an
administrative decision, reviewing an existing administrative decision
and so forth.
The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means
‘Magistrates of the Classical Roman Republic’.
Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman

official under the monarchy and the republic with the function of
protecting the citizen from arbitrary action by the aristocrat
magistrates.
A Tribunal, generally, is any person or institution having an authority

to judge, adjudicate on, or to determine claims or disputes – whether
or not it is called a tribunal in its title.
13.1. Need for Tribunals
 To overcome the situation that arose due to the pendency of

cases in various Courts, domestic tribunals and other Tribunals
have been established under different Statutes, hereinafter
referred to as the Tribunals.
 The Tribunals were set up to reduce the workload of courts, to
expedite decisions and to provide a forum which would be
manned by lawyers and experts in the areas falling under the
jurisdiction of the Tribunal.
 The tribunals perform an important and specialised role in
justice mechanism. They take a load off the already
overburdened courts. They hear disputes related to the
environment, armed forces, tax and administrative issues.
13.2. Constitutional Provisions

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Tribunals were not part of the original constitution, it was

incorporated in the Indian Constitution by 42nd Amendment Act,
1976.
 Article 323-A deals with Administrative Tribunals.

 Article 323-B deals with tribunals for other matters.
Under Article 323 B, the Parliament and the state legislatures are
authorised to provide for the establishment of tribunals for the
adjudication of disputes relating to the following matters:
 Taxation
 Foreign exchange, import and export
 Industrial and labour
 Land reforms
 Ceiling on urban property
 Elections to Parliament and state legislatures
 Food stuff
 Rent and tenancy rights
Articles 323 A and 323 B differ in the following three aspects:
 While Article 323 A contemplates the establishment of

tribunals for public service matters only, Article 323 B
contemplates the establishment of tribunals for certain other
matters (mentioned above).
 While tribunals under Article 323 A can be established only by
Parliament, tribunals under Article 323 B can be established
both by Parliament and state legislatures with respect to
matters falling within their legislative competence.
 Under Article 323 A, only one tribunal for the Centre and one
for each state or two or more states may be established. There
is no question of the hierarchy of tribunals, whereas under
Article 323 B a hierarchy of tribunals may be created.
Topic.14. Administrative Tribunals

The main characteristics of Administrative Tribunals are as follows:
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 Administrative Tribunals is the creation of a statute.

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 An Administrative Tribunals is vested in the judicial power of

the State and thereby performance quasi-judicial functions as
distinguished form pure administrative functions.
 Administrative Tribunals is bound to act judicially and follow
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the principles of natural justice.
 It has some of the trapping of a court and are required to act
openly, fairly and impartially.
 An administrative Tribunal is not bound by the strict rules of
procedure and evidence prescribed by the civil procedure
court.
14.1. Structure of Tribunals
The Administrative Tribunals Act 1985 provides for the establishment

of one Central Administrative Tribunal and a State Administrative
Tribunal for each State like Kerala Administrative Tribunal etc; and
Joint Administrative Tribunal for two or more states.
Central Administrative Tribunals
The Central Administrative Tribunal with its principal bench at Delhi

and other benches at Allahabad, Bombay, Calcutta and Madras was
established on Ist November 1985. The Act vested the Central
Administrative Tribunal with jurisdiction, powers and authority of the
adjudication of disputes and complaints with respect to recruitment
and service matters pertaining to the members of the all India
Services and also any other civil service of the Union or holding a civil
post under the Union or a post connected with defense or in the
defense services being a post filled by a civilian. Six more benches of
the Tribunal were set up by June, 1986 at Ahmedabad, Hyderabad,
Jodhpur, Patna, Cuttack, and Jabalpur. The fifteenth bench was set up
in 1988 at Ernakulam.
State and Joint Tribunals
The Act provides for setting up of State Administrative Tribunals to

decide the services cases of state government employees. There is a
provision for setting up of
Joint Administrative Tribunal for two or more states. On receipt of

specific requests from the Government of Orissa, Himachal Pradesh,
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Karnataka, Madhaya Pradesh and Tamil Naidu, Administrative

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Tribunals have been set up, to look into the service matters of

concerned state government employees. A joint Tribunal is also to be

set up for the state of Arunachal Pradesh to function jointly with
Guwahati bench of the Central Administrative Tribunal.
14.2. Composition of Administrative Tribunals
Each Tribunal shall consist of Chairman, such number of Vice-

Chairman and judicial and administrative members as the appropriate
Government (either the Central Government or any particular State
Government singly or jointly) may deem fit (vide Sec. 5.(1) Act No. 13
of 1985). A bench shall consist of one judicial member and one
administrative member. The bench at New Delhi was designated the
Principal Bench of the Central Administrative Tribunal and for the
State Administrative Tribunals.
14.3. Qualification for Appointment
In order to be appointed as Chairman or Vice-Chairman, one has to

be qualified to be (is or has been) a judge of a High Court or has held
the post of secretary to the Government of India for at least two years
or an equivalent-pay-post either under the Central or State
Government (vide Sec. 6(i) and (ii) Act No. 13 of 1985).
To be a judicial member, one has to be qualified for appointment as

an administrative member, one should have held at least for two
years the post of Additional Secretary to the Government of India or
an equivalent pay-post under Central or State Government or has
held for at least three years a post of Joint Secretary to the Govt. Of
India or equivalent post under Central or State Government and must
possess adequate administrative experience.
14.4. Term of Office
The Chairman, Vice-Chairman or other member shall hold office for a

term of five years from the date on which he enters upon his office or
until he attains the age of
 Sixty five, in the case of Chairman or vice-Chairman,

 Sixty-two, in the case of any other member,
whichever is earlier.
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14.5. Of Removal
The Chairman, Vice-Chairman or any other member of the

Administrative Tribunal may, by notice in writing under his hand
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addressed to the President, resign, his office; but will continue to hold
office until the expiry of three months from the date of receipt of
notice or expiry of his terms of office or the date of joining by his
successor, whichever is the earliest.
They cannot be removed from office except by an order made by the

President on the ground of proven misbehavior or incapacity after an
inquiry has been made by a judge of the Supreme Court; after giving
them a reasonable opportunity of being heard in respect of those
charges (vide Sec. 9(2). Act No. 13 of 1985).
14.6. Of Jurisdiction, Powers and Authority
Chapter III of the Administrative Tribunal Act deals with the

jurisdiction, powers and authority of the tribunals. Section 14(1) of the
Act vests the Central Administrative Tribunal to exercise all the
jurisdiction, powers and authority exercisable by all the courts except
the Supreme Court of India under Article 136 of the Constitution.
One of the main features of the Indian Constitution is judicial review.

There is a hierarchy of courts for the enforcement of legal and
constitutional rights. One can appeal against the decision of one
court to another, like from District Court to the
High Court and then finally to the Supreme Court, But there is no
such hierarchy of Administrative Tribunals and regarding adjudication
of service matters, one would have a remedy only before one of the
Tribunals. This is in contrast to the French system of administrative
courts, where there is a hierarchy of administrative courts and one can
appeal from one administrative court to another. But in India, with
regard to decisions of the Tribunals, one cannot appeal to an
Appellate Tribunal. Though Supreme Court under Article 136, has
jurisdiction over the decisions of the Tribunals, as a matter of right, no
person can appeal to the Supreme Court. It is discretionary with the
Supreme Court to grant or not to grant special leave to appeal.
The Administrative Tribunals have the authority to issue writs. In

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disposing of the cases, the Tribunal observes the canons, principles

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and norms of ‘natural justice’. The Act provides that ‚a Tribunal shall

not be bound by the procedure laid down in the Code of Civil

Procedure 1908, but shall be guided by the principles of natural
justice.
The Tribunal shall have power to regulate its own procedure including
the fixing of the place and times of its enquiry and deciding whether
to sit in public or private‛.
A Tribunal has the same jurisdiction, powers and authority, as those

exercised by the High Court, in respect of ‚Contempt of itself‛ that is,
punish for contempt, and for the purpose, the provisions of the
contempt of Courts Act 1971 have been made applicable. This helps
the Tribunals in ensuring that they are taken seriously and their orders
are not ignored.
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SECTION IV
PRINCIPLES OF NATURAL JUSTICE
Topic 15. Natural Justice Principle

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‚Natural justice is a sense of what is wrong and what is right.‛
The principle of natural justice is a very old concept and it originated

at an early age. The people of Greek and roman were also familiar
with this concept. In the days of Kautilya, arthashastra and Adam were
acknowledged the concept of natural justice. According to
Brihaspathi, ‚A judge should decide cases without any consideration
of personal gain or any kind of personal bias; and his decision should
be in accordance with the procedure prescribed by the texts. A judge
who performs his judicial duties in this manner achieves the same
spiritual merit as a person performing a Yajna‛
The concept of natural justice was later on accepted by the English

jurists. The word natural justice is derived from the Roman word ‘jus-
naturale’ and ‘lex-naturale’ which planned the principles of natural
justice, natural law and equity.
In India, this concept was introduced at an early time. In the case of

Mohinder Singh Gill vs. Chief Election Commissioner, the court
held that the concept of fairness should be in every action whether it
is judicial, quasi-judicial, administrative and or quasi-administrative
work.
Basically, natural justice consists of 3 rules.
The first one is ‚Hearing rule‛ which states that the person or party
who is affected by the decision made by the panel of expert members
should be given a fair opportunity to express his point of view to
defend himself.
Secondly, ‚Bias rule‛ generally expresses that panel of expert should

be biased free while taking the decision. The decision should be given
in a free and fair manner which can fulfil the rule of natural justice.
And thirdly, ‚Reasoned Decision‛ which states that order, decision or

judgement of the court given by the Presiding authorities with a valid
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and reasonable ground.

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15.1. Rule against Bias ( Doctrine of Bias)
One of the essential elements of judicial process is that administrative

authority acting in a quasi- judicial manner should be impartial, fair
and free from bias. Rules of judicial conduct, since early times, have
laid down that the deciding Officer should be free from any
prejudices. Where a person, who discharges a quasi-judicial function,
has, by his conduct, shown that he is interested, or appears to be
interested, that will disentitle him from acting in that capacity. The
rule is based on the doctrine Nemo Judex in causa Sua meaning ‚No
one should be a judge in his own case‛ because it leads to rule of
biases. Bias means an act which leads to unfair activity whether in a
conscious or unconscious stage in relation to the party or a particular
case. Therefore, the necessity of this rule is to make the judge
impartial and given judgement on the basis of evidence recorded as
per the case.
There are different kinds of bias namely
1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.
15.1.1. Personal Bias
A number of circumstances may give rise to personal bias. Here a

Judge may be a relative, friend or business associate of a party. He
may have some personal grudge, enmity or grievance or professional
rivalry against such party. In view of these factors, there is every
likelihood that the Judge may be biased towards one party or
prejudiced towards the other.
Personal bias arises from a certain relationship equation between the

deciding authority and the parties which incline him unfavorably or
otherwise on the side of one of the parties before him. Such equation
may develop out varied forms of personal other professional hostility
or friendship. However, no exhaustive list is possible.
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Real likelihood of bias or reasonable suspicion of bias: However, in

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order to challenge an administrative action successfully on the

ground of personal bias, it is essential to prove that there is a

reasonable suspicion of bias or a real likelihood of bias. The
reasonable suspicion test looks mainly to outward appearance, and
the real likelihood test focuses on the court’s own evaluation of
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possibilities.
In State of U.P. v. Mohd. Nooh, a departmental inquiry was held

against A by B. As one of the witnesses against A turned hostile, B left
the inquiry, gave evidence against A, resumed to complete the inquiry
and passed an order of dismissal. The Supreme Court held that ‘the
rules of natural justice were completely discarded and all canons of
fair play were grievously violated byB.’
In A.K. Kraipak v. Union of India, one X was a candidate for

selection to the Indian Foreign Service and was also a member of the
Selection Board. X did not sit on the Board when his own name was
considered. Name of X was recommended by the Board and he was
selected by the Public Service Commission. The candidates who were
not selected filed a writ petition for quashing the selection of X on the
ground that the principles of natural justice were violated. Supreme
Court held that there was a real likelihood of bias, for the mere
presence of candidate on the selection board may adversely influence
the judgment of the other member.
In Manaklal v. Prem chand in order to decide a complaint for

professional misconduct filed by doctor Premchand against Manaklal,
an advocate of the Rajasthan High Court, the High Court appointed
tribunal consisting of a senior advocate once Advocate General of
Rajasthan as chairman. The decision of the tribunal was challenged on
the ground of personal bias arising from the fact that chairman had
represented him and in an earlier case. The Supreme Court refused
order to quash the action holding that the chairman had no personal
contact with his client and did not remember that he appeared on his
behalf and that therefore there seemed to be no real likelihood of
bias. However, the high professional standards led the court to quash
the action in the final analysis on the ground that justice should not
only be done but must appear to have been done.
In Ramanand Prasad Singh v. UOI, The Supreme Court held that

participation in the selection committee as a member where his
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brother was a candidate but was not selected is inconsequential bias

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on which the whole select list cannot be quashed.

In Tata Cellular v. UOI,, the tender for operating the cellular mobile
telephone service in 4 Metropolitan cities filed by the son of the
members of the tender evaluation committee had been accepted.
This was challenged on the basis of personal bias. Applying the
principle of necessity, as the involvement of the director general of
the telecommunications and telecom authority was a necessary in
view of Section 3(6) of the Telegraph Act 1885, the court held that the
involvement of his father as a member of the tender evaluation
committee did not vitiate the selection on the ground of bias. It may
be noted in this case that the tender was based on merit through the
normal procedure full stuff therefore it is necessary to ascertain what
role that person played in the decision-making against whom biases
alleged.
In G.N Nayak v. Goa University, a senior officer expresses

appreciation of the work of a junior officer in his confidential report.
He was also a member of the Departmental promotion committee to
consider such a junior officer along with others for promotion. The
committee recommended this junior officer for promotion which was
challenged on the ground of personal bias actuated by an element of
personal interest. The Supreme Court held that unless preferences
unreasonable and is based on self-interest, it will not vitiate an
administrative decision.
In Padma v. Hiralal Motilal Desarada S was a director in a special

planning authority, Viz. The city and industrial Development
Corporation (CIDCO). The authority alerted plots to three associations
comprising family members or relatives of S. The supreme court
quashed the allotments on the ground of buyers holding that in such
circumstances S ought to have, at least, very specifically informed
CIDCO of his relationship with the associations, and while dealing
with them should be consciously aware of that fact.
In Mohd. Yunus Khan v. State of UP. disciplinary proceedings

started against a constable for being late for parade. Authority which
initiated proceedings also became a witness, accepted inquiry report
and also imposed the punishment of dismissal. It was held that
administrative action is flagrant violation of rule against bias.
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15.1.2. Pecuniary Bias
It is well-settled that as regards pecuniary interest ‘the least pecuniary

interest in the subject-matter of the litigation will disqualify any
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person from acting as a Judge.’ Griffith and Street rightly state that ‚a
pecuniary interest, however slight, will disqualify, even though it is not
proved that the decision is in any way affected.‛ Judicial approach is
unanimous and this issue on the point that any financial interest,
howsoever small it may be, would vitiate administrative action
Dimes v. Grant Junction Canal is considered to be the classic

example of the application of the rule against pecuniary interest. In
this case, the suits were decreed by the Vice Chancellor and the
appeals against those decrees were filed in the Court of Lord
Chancellor Cottenham. The appeals were dismissed by him and
decrees were confirmed in favor of a canal company in which he was
a substantial shareholder. The House of Lords agreed with the Vice-
Chancellor and affirmed the decrees on merits. In fact, Lord
Cottenham’ s decision was not in any way affected by his interest as a
shareholder; and yet the House of Lords quashed the decision of Lord
Cottenham.
In R v. Hendon Rural Distt. Council, The court in England

questioned the decision of the Planning Commission where one of
the members was an estate agent who was acting for the applicant to
whom the permission was granted.
In Jeejeebhoy v. Collector court reconstituted the bench when it was

found that one of the members of the winch was a member of the
cooperative society for which the land had been acquired.
In Vishskapatnam Coop. Motor Transport Ltd. V. Bangaru raju The

Madras high court also quashed the decision of the collector who in
his capacity as the chairman of the regional transport authority had
granted a permit in favor of a cooperative Society of which he was
also the chairman.
In J. Mohapatra & Co and Anr vs. State of Orrissa the Supreme

Court quashed the decision of the text books selection committee
because some of its members were also authors of the books which
were considered for selection.
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With reference to R v. Bow street Metropolitan Stipendiary

magistrate, laying down the law, the House of lords opined that the
rule against bias has two very similar but not identical implications.
 If a judge has financial or proprietary interest in the case, or

any party to the suit, he is automatically disqualified to act as a
judge without investigation of a real likelihood of bias or
suspicion of bias unless he makes a voluntary disclosure.
 If a judge has no financial or proprietary interest and is also
not a party to case, but his conduct or behavior give rise to a
suspicion of bias then there is no automatic disqualification
unless a real likelihood is proved
15.1.3. Subject Matter Bias
The third type of bias is official bias or bias as to the subject-matter.

This may arise when the Judge has a general interest in the subject-
matter. Those cases fall within this category where the deciding
officer is directly, or otherwise, involved in the subject matter of the
case. Here again mere involvement would not vitiate the
administrative action unless there is a real likelihood of bias.
In Gullapalli Nageswara Rao v. A.P.S.R.T.C., the petitioners were

carrying on a motor transport business. The Andhra State Transport
Undertaking published a scheme for nationalization of motor
transport in the State and invited objections. The objections filed by
the petitioners were received and heard by the Secretary and
thereafter the scheme was approved by the Chief Minister. The
Supreme Court upheld the contention of the petitioners that the
official who heard the objections was ‘in substance’ one of the parties
to the dispute and hence the principles of natural justice were
violated
15.1.4. Departmental or Institutional Bias
The problem of departmental bias is something which is inherent in

the administrative process, and if not effectively checked, it may
negate the very concept of fairness in administrative proceedings.
The question of departmental bias was considered by the Supreme

Court in Nagaswara Rao, In this case, the petitioner challenged the
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order of the government nationalizing road transport. One of the

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grounds for challenge was that the secretary of the transport

Department who gave the hearing was bias, being the person who
initiated the scheme and also being the head of the Department,
whose responsibility was to execute it. The court quashed the order
on the ground that, under the circumstances, the secretary was biased
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and, hence no fair hearing could be expected.
Thereafter, the Act was amended and the function of hearing the
objection was given over to the minister concerned. The decision of
the government was again challenged by Nageswara raw on the
ground of Departmental bias because the minister was the head of
the Department concerned which initiated the scheme and was also
ultimately responsible for its execution.
However, on this occasion the Supreme Court rejected the challenge

on the ground that the minister was not a part of the Department in
the same manner as a secretary was. The reasoning of the court is not
very convincing perhaps because, as observed earlier Departmental
bias is something which is inherent in the administrative process.
In Krishna Bus Service Pvt. Ltd. v. State of Haryana The Supreme

Court however questioned the notification of the tournament which
had conferred the powers of a deputy Superintendent of police on
the general manager, how do you are not always in matters of
inspection of vehicles on the ground of departmental bias. In this
case, private bus operators had alleged that the general manager of
Haryana roadways who was a rival in business in the state could not
be expected to discharge his duties in a fair and reasonable Manner
and would be too lenient in inspecting the vehicles belonging to his
own Department. The reason for quashing the notification according
to the Supreme Court was the conflict between their duty and the
interest of the Department and the consequential erosion of public
confidence in administrative justice
In Hari K. Gawali v. Dy. Commr. of police this case an externment

order was challenged on the ground that Since the Police Department
which initiated the proceedings and the Department which heard
under decided the case with the same, the element of Departmental
bias vitiated administrative action. The court rejected the challenge on
the grounds that so long as the two functions what it discharged
about two separate officers though they were affiliated to the same
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Department there was no bias.

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15.1.5. Policy Notion Bias
Bias arising out of preconceived policy notions is a very delicate

problem of administrative law. On one hand no judge as a human
being is expected to sit as a blank sheet of paper and on the other
preconceived policy notions may vitiate may fair trial.
In Franklin v. Minister of Town and Country planning Also known

as the Stevenage case, in this case the appellant challenged the
Stevenage Newtown designation order 1946, on the ground that no
fair hearing was given because the minister had entertained by us in
his determination which was clear from his speech at Stevenage when
he said are you want to carry out a dating exercise in town planning.
Additional function but the problem still remains that the bias arising
from strong policy convictions may I put it as a more serious threat to
fair action than any other single factor.
In Kondala Rao v. A.P. SRTC , the court did not crash the order of
minister, who had heard the objections of private operators
nationalizing road transport on the ground that the same minister
had presided over a meeting only a few days earlier in which
nationalization was favored. The court rejected the contention on the
ground that the decision of the committee was not final and
irrevocable but merely a policy decision.
Recent trend in almost all jurisdictions is that policy by us is not

considered as bias which vitiates an administrative action. In Bajaj
Hindustan Ltd. V. Sir Shahidlal Enterprise Ltd, Court did not allow a
challenge to an administrative action on the ground of policy bias.
15.2. Audi Alteram Partem (Hearing Rule)
It simply includes 3 Latin word which basically means that no person

can be condemned or punished by the court without having a fair
opportunity of being heard. In many jurisdictions, a bulk of cases are
left undecided without giving a fair opportunity of being heard.
The literal meaning of this rule is that both parties should be given a
fair chance to present themselves with their relevant points and a fair
trial should be conducted.
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This is an important rule of natural justice and its pure form is not to
penalize anyone without any valid and reasonable ground. Prior
notice should be given to a person so he can prepare to know what
all charges are framed against him. It is also known as a rule of fair
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hearing. The components of fair hearing are not fixed or rigid in
nature. It varies from case to case and authority to authority.
Components of Audi Alteram Partem
Issuance of notice– Valid and proper notice should be given to the

required parties of the matter to further proceed with the procedure
of fair trial method. Even if the statute does not include the provision
of issue of notice then it will be given prior to making decisions. This
was held in the case of Fazalbhai vs. custodian.
In the case of Kanda vs. Government of Malaya, the court held that
notice must directly and clearly specify on the matter of bias, facts
and circumstances against which needs to be taken. It’s one of the
rights of the individual to defend himself so he should be familiar with
the relevant matter so he may contradict the statement and safeguard
himself.
The notice should be with regard to the charges framed against the
accused person and proceeding to be held. He can only be punished
on the charges which are mentioned in the notice, not for any other
charges.
Right to present the case and evidence– After receiving the

notice he must be given a reasonable time period to prepare and
present his case in a real and effective manner. The refusal should not
be done on the unreasonable ground or due to arbitrary.
Right to Cross Examination– Right of fair hearing includes the

right to cross-examination the statement made by the parties. If
tribunals denied the right to cross-examination then it will violate the
principles of natural justice. And all the necessary copies of
documents should be given and failure of that will also encroach the
principle. The department should make available officers who are
involved in the procedure of investigating and do cross-examination.
Cross-examination is defined under Section 137 of the Indian
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Evidence Act, 1872 (amended).

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In certain exceptional cases, the right to cross-examination can be

denied or rejected. Hari Nath Mishra vs. Rajendra Medical College,
under this case a male student was charged off some indecent
behaviour towards a female student. So, here the right to cross-
examination was denied for the male student as it will lead to
embracement for the female student and it will not also lead to
violation of natural justice.
Sometimes it becomes very necessary to keep the identity

confidential as there is a threat of life and property. And the same
situation was faced in the case Gurubachan Singh vs. the State of
Bombay.
Let’s take an illustration, In the matter where lawyer and client are
involved so, nobody can force a lawyer to reveal what all information
is given by the client to the lawyer in relation to the case.
In the case of Ludhiana food product, the court held that If the party
itself refuse to cross-examine the witness then it will not fall under
miscarriage of natural justice.
Right of Legal representative– In the process of enquiry, every

party has the right to have a legal representative. Each party will be
presented by the legally trained person and no one can deny
(A.K.Roy). Similarly, the department has the same right to direct its
officer even though there are investigating officer in conducting an
adjudicating proceeding (Sanghi textile processor vs.
Commissioner).
15.3. Reasoned Decision (Speaking Order)
Reasoned decision may be taken to mean a decision which contains

reason in its support. When the adjudicators bodies give reasons in
support of their decisions, the decisions are treated as reasoned
decision. A decision, thus supported by reasons is called reasoned
decision. It is also called speaking order. In such condition the order
speaks for itself or it tells its own story.
Basically, it has 3 grounds on which it relies:-

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 The aggrieved party has the chance to demonstrate before the

appellate and revisional court that what was the reason which
makes the authority to reject it.
 It is a satisfactory part of the party against whom the decision
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is made.
 The responsibility to record reasons works as obstacles against
arbitrary action by the judicial power vested in the executive
authority.
In Sunil Batra v. Delhi administration, the Supreme Court while

interpreting section 56 of the prisons act, 1894, observed that there is
an implied duty on the jail superintendent to give reasons for putting
bar fetters on a prisoner to avoid invalidity of that provision under
article 21 of the constitution. Thus the Supreme Court laid the
foundation of a sound administrative process requiting the ad
judicatory authorities to substantiate their order with reasons. The
court has also shown a tendency to emphasize upon the fact that the
administrative order should contain reasons when they decide
matters affecting the right of parties.
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SECTION V
OMBUDSMAN : LOKPAL AND LOKAYUKTHA
Topic.16. Ombudsman
Ombudsman means a delegate, agent, officer or commissioner.
Gender defines ombudsman as ‚an officer of parliament, having as his
primary function, the duty of acting as an agent for parliament, for
the purpose of safeguarding the citizen against abuse or misuse of
administrative power by the executive ‚. Administrative law provides
for control over the administration by an outside agency, strong
enough to prevent injustice to the individual, at the same time leaving
the administration adequate freedom to enable it to carry on effective
government.
Ombudsman first introduced in Sweden by King Charles XII on 18th

century. It is also practiced by Finland in 1919, Denmark in 1953,
Norway in 1963, New Zealand in 1962, US 1960 and UK 1967.
Ombudsman is an appointed official whose duty is to investigate

complaints, generally on behalf of individuals such as consumers or
taxpayers, against Institutions such as companies and government
departments. Ombudsman means the ‚grievance man‛ or a
‚commissioner of administration ‚
The parliamentary and judicial control on the administrative action is

very week, except there is a statutory provision for an administrative
tribunal. There is no means for handling grievance against
misconduct, inefficiency, delay, negligence, etc .against the officials.
The natural remedy open to the aggrieved person, in such cases, is for
him to persuade the minister if he is accessible to the aggrieved
person, or to draw his attention by raising question in parliament to
which he is responsible, but in practice it is difficult. It was felt
necessary to have alternative or additional institution to control
wrong decision, maladministration or corruption of public officials.
the ombudsman is one of such principle alternative provided for.
16.1. Characters of Ombudsman
 Independence - It is a body that assists with fair and

83
expeditious resolution of complaints in an impartial

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confidential and independent manner.

 Impartiality and fairness - It works impartially

 Credibility - It maintains its Credibility
 Confidentiality
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According to Professor S.K Agrawal, the term ombudsman refers only
to institute, which have three basic and unique characteristic which
are as follows –
 Ombudsman refers to an independent and non-partisan

officer of the legislature who supervise the administration.
 He deals with specific complaints from the public against
administrative injustice and maladministration.
 He has the power to investigate, criticize and report back to
the legislature, but not to reserve administrative action.
16.2. Powers of Ombudsman
Ombudsman is a watchdog of the administration or the protector of

the little man, ombudsman inquires and investigates all complaints
made by the citizen against the abuse of discretionary power, mal-
administration inefficiency and take appropriate actions. For that
purpose, very wide power has been given to him, he has access to
departmental files. The complainant is not required to lead any
evidence before the ombudsman to prove his case he is empowered
to grant relief to the aggrieved person. His function is to satisfy
himself whether the complaint is justified or unjustified. He can act
even suo-moto. These powers are not limited like the powers of civil
court, he is responsible and responsive to people
According to Mukherjea, J., in India this institution is not suitable. He

describes it as "an accusatorial and inquisitorial institution a
combination unprecedented in democracy with traditions of
independent judiciary". 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 injustices, an
84
institution like Ombudsman may help in doing full and complete

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justice to aggrieved persons. But Ombudsman is not a "panacea for

all the evils of bureaucracy." His success depends upon the existence
of a reasonably well-administered State. He cannot cope
with the situation where administration is riddled with patronage and

Corruption. Indian Parliament so far has not enacted any Act though a
proposal to constitute an institution of
Ombudsman (Lokpal) was made by the Administrative Reforms

Commission as early as in 1967. Some States, however, have enacted
Statutes and appointed Lokayukta
Topic 17. Lokpal and Lokayuktha

The word "Lokpal" is derived from the sanskrit word "loka" meaning
people and "pala" meaning protector or caretaker. Together it means
"protector of people". The aim of passing such a law is it to eradicate
corruption at all levels of the Indian polity. For a nation to develop it
needs to have an extremely well organized and meticulously planned
organization. A failure of the administrative set up reflects on the
holistic growth of the state, the biggest reason for the failure of the
administration can be attributed to the ill effects of corruption. The
growth of the country has been plagued by corruption and it has
extended its wings through-out the entire administrative set up.
To root out the menace of corruption the institution of "ombudsman"

came up and has played a great role in fighting administrative
malpractices.
The Lokpal and Lokayukta Act, 2013 provided for the establishment of
Lokpal for the Union and Lokayukta for States. These institutions are
statutory bodies without any constitutional status. They perform the
function of an "ombudsman‛ and inquire into allegations of
corruption against certain public functionaries and for related matters.
17.1. Structure of Lokpal
 Lokpal is a multi-member body, that consists of one

chairperson and a maximum of 8 members.
 Chairperson of the Lokpal should be either the former Chief
85
Justice of India or the former Judge of Supreme Court or an

eminent person with impeccable integrity and outstanding
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ability, having special knowledge and expertise of minimum 25

years in the matters relating to anti-corruption policy, public
administration, vigilance, finance including insurance and
banking, law and management.
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 Out of the maximum eight members, half will be judicial
members and minimum 50% of the Members will be from SC/
ST/ OBC/ Minorities and women.
 The judicial member of the Lokpal either a former Judge of the
Supreme Court or a former Chief Justice of a High Court.
 The non-judicial member should be an eminent person with
impeccable integrity and outstanding ability, having special
knowledge and expertise of minimum 25 years in the matters
relating to anti-corruption policy, public administration,
vigilance, finance including insurance and banking, law and
management.
 The term of office for Lokpal Chairman and Members is 5
years or till the age of 70 years.
 The members are appointed by the president on the
recommendation of a Selection Committee.
 The selection committee is composed of the Prime Minister
who is the Chairperson, Speaker of Lok Sabha, Leader of
Opposition in Lok Sabha, Chief Justice of India or a Judge
nominated by him/her and One eminent jurist.
 For selecting the chairperson and the members, the selection
committee constitutes a search panel of at least eight persons.
17.2. Jurisdiction of Lokpal
The jurisdiction of the Lok pal will include the Prime Minister except
on allegations of corruption relating to international relations,
security, the public order, atomic energy and space and unless a Full
Bench of the Lok pal and at least two-thirds of members approve an
inquiry. It will be held in-camera and if the Lok pal so desires, the
records of the inquiry will not be published or made available to
anyone. The Lok pal will also have jurisdiction over Ministers and MPs
but not in the matter of anything said in Parliament or a vote given
there. Lokpals jurisdiction will cover all categories of public servants.
Group A, B, C or D officers defined as such under the Prevention of
86
Corruption Act, 1988 will be covered under the Lok pal but any
corruption complaint against Group A and B officers, after inquiry, will
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come to the Lok pal. However, in the case of Group C and D officers,
the Chief Vigilance Commissioner will investigate and report to the
Lok pal. However, it provides adequate protection for honest and
upright Public Servants. Also any person who is or has been in charge
(director / manager/ secretary) of anybody / society set up by central
act or any other body financed / controlled by central government
and any other person involved in act of abetting, bribe giving or bribe
taking etc.
17.3. Powers of Lokpal and Lokayuktha
(i) It has powers to superintendence over, and to give direction

to CBI.
(ii) If it has referred a case to CBI, the investigating officer in such
case cannot be transferred without approval of Lok pal.
(iii) Powers to authorize CBI for search and seizure operations
connected to such case.
(iv) The Inquiry Wing of the Lok pal has been vested with the
powers of a civil court.
(v) Lok pal has powers of confiscation of assets, proceeds,
receipts and benefits arisen or procured by means of
corruption in special circumstances
(vi) Lok pal has the power to recommend transfer or suspension
of public servant connected with allegation of corruption.
(vii) Lok pal has power to give directions to prevent destruction of
records during preliminary inquiry.
The Lokpal is not given a Constitutional backing. There are no

adequate provisions for appeal against the Lok pal. The powers,
composition and scope of Lokayuktas do not find any mention of the
Act. There is a long way to go to ensure transparency and crusade
against corruption are still on and yet to reach its destination.
87
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SECTION VI
STATE RESPONSIBLITY
Topic 18. Doctrine of Public Accountability

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Public accountability relates to the relationship between the
government and the general public. The concept of an elected
legislature which is actually a system a checks and balances has led to
the establishment of democracy in our country. A democracy is
basically a system where various authorities exist independently of
each other and also have the power to hold the other authorities
responsible and accountable for their actions.
Public accountability in our country is the result of its existing federal

structure which in turn is a 2 way process:-
 Upward accountability: Control of the government such as

the jurisdiction to dissolve, approve and audit fiscal plans of
administrative authorities
 Downward accountability: This is comparatively weaker
authority since it rests only with the general public through
the power of electoral process.
18.1. Doctrine of Public Accountability in the Indian

Administrative Law
The application of the doctrine of Public Accountability on a practical

basis in India has not been so successful because of the many
hindrances it has been facing. There have been many systems which
have been put into place for the purpose of formal accountability
such as laws for Right to Information and e-governance but they have
not been not been working their fullest potential. For example, the
RTI Act of 2005 was one of the best acts passed in the year 2005 but
the enforcement and monitoring of the same has been ignored.
The government has formulated mandates and provided the public

agencies with the necessary funds but they have not instilled the
necessary efforts for the proper assessment and required penalties to
88
hold these agencies accountable. Despite the regular conduct of

parliamentary reviews and auditing of accounts publicly, the follow-
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ups have always left a necessity for even more transparency. It is very
much visible in the current scenario that formal mechanisms of
accountability tend to work only when there is guarantee of actual
accountability on ground.
In the context of administrative law, the growth and advancement of

the doctrine of Public Accountability has led it in playing a crucial role
in creating a firm check in the case of any misuse of power by the
government servants and creating a speedy and just method of relief
to the victims who have suffered any exploitation.
The underlying principle of the doctrine of public accountability is

that the power and discretion held by the administrative authorities is
subjected to the public trust which is placed in their hands and the
same must be exercised only in the realization of such a conviction.
Origin and Development of the Doctrine of Public Accountability
1. Attorney General of India v. Amritlal Prajivandas
The validity of the SAFEMA Act was challenged in this case because it
mandated for the properties to be released which were received as a
result of smuggling or any other malafide activity.
2. DDA v. Skipper Construction Corporation
The priority in this case was given to the general public and were
defrauded despite not being aware whether there existed a fiduciary
relationship or not and whether a police officer was involved in the
same or not. It was held that the respondent is ‚authorized to pass
orders irrespective of the above-mentioned requirements which
includes even the illegal acquirement of properties.‛
3. Nilabati Behera v. State of Orissa
Due to the judgment pronounced in this case, the courts are now
supposed to award compensation and also exemplary costs if it’s a
case of violation of fundamental rights because power has been
abused by a police officer. It was held in this case that ‚recognition of
such a claim exists under public law‛. The victims’ human rights are
suggested to be given protection by constitution by means of public
law review under Article 32 and 226 of the Indian Constitution. The
89
doctrine of Public Accountability also portrays shows instances of

Page
judicial activism since courts have begun to recognize that the

authorities are accountable properly especially the ones who do carry

out their statutory duties efficiently.
Enforcement of the Doctrine of Public Accountability

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through RTI
One reason for not getting enough participation by the public is the
lack of information on how the government works. In the case of SP
Gupta v. President of India, the court stressed upon the significance of
open government and held that the reason for demanding an
openness in the government’s functions is because of the people’s
right to vote and choosing their representatives for the coming 5
years and later returning to their cocoon without showing absolutely
any interest in the government does not comprise a democracy.
The court held that ‚any secrecy must not exist in a government
where agents are held responsible for their conduct‛ in the case of
Raj Narain v. State of UP. In another case of Dinesh Trivedi v.
Union of India, the court said that to ensure that the public
participate in the democratic processes, all important decisions taken
by the government must be conveyed to the public including the
basis thereof. The judgement given by SC in this case has given rise to
a new scope for administrative law in India in particular and
democracy in general.
The RTI Act of 2005 being a landmark legislation includes the central,
state as well as local governments including all public authorities
within its domain. Also, it has a significant application on the
legislature and judiciary as well. The word ‘information’ under the act
includes ‚the right to inspect work, documents and records that are
held by the government and also permits the extraction of certified
samples for verification.‛
The RTI Act is based on the principle of ‚‚minimum disclosure‛ and

‚minimum exceptions‛ i.e. revealing almost all information and
making an exception in cases where the information is absolutely
necessary to be kept confidential.‛ The only way for government
offices to deal with frivolous applications is by voluntarily making all
the information available to the public.
RTI has been the most effective in tackling and eradicating corruption.
90
The best example is where ‚Parivartan‛, a civil society in Delhi

Page
collected all the necessary information about the flow of public funds

and how this information was useful in holding the government

accountable.
Landmark Judgements
1. Medical Council of India case (Dr Ketan Desai v. The State)
Facts: The petition was against the President of Medical Council of

India – Ketan Desai challenging the bungling done with respect to
admissions to medical colleges in Ghaziabad, Pune and Punjab which
was done on a large scale and also granting recognition to those
colleges. The petition consisted of figures from the income tax raid
which showed an unexplained receipt for 6.5 million rupees in the
form of bank drafts in the name of his wife and daughter.
Judgement: It was held that actions taken by Desai are directly under
the ambit of a public servant since the maintenance of uniform
standards and to accordingly give recognition to medical colleges on
the basis of such criteria is the main goal of the Medical Council. In
this case, Desai has taken undue advantage of his position as a
President and misused his power. Accordingly, he was charged with a
penalty as fine and take into custody as well in addition to being
removed from his position. Cases like these give an example how the
public servants enjoy undue benefits while the public gets defrauded.
2. Commonwealth Games case ( Suresh Kalmadi v. The CBI)
Facts: Mr. Suresh who was the Chief-in-charge of the CWG Organising
Committee awarded the contract of TSR to a very expensive firm
thereby causing a huge loss to the government. When delved deeper
into the facts, it was revealed that a conspiracy had been hatched for
the awarding to the contract to the expensive firm despite the
availability of a cheaper option. After the difference of costs between
MSL Spain and Swiss Timing, a huge loss of Rs 95 crore was
calculated. Eventually after being arrested, an appeal was filed in the
Supreme Court by Suresh Kalmadi which has been ongoing till date.
Judgement: Finally, the burden was on the government to bear the

costs which was 1000% more than the original cost due to the
malpractice of a public servant. Eventually, the taxpayers were
defrauded and burdened because they would have to pay higher
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price for the lack of accountability.

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तेजस्वि नावधीतमस्तु | May our Knowledge Become Brilliant

NOTES CUM COURSE MATERIAL FOR CALICUT UNIVERSITY

C.L. 9. ADMINISTRATIVE LAW

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Sent your feedback and suggestions at:

Sl No. Topic Page No.

For the sake of convenience of study the entire syllabus is

1. Meaning - content and growth of administrative law in India -

2. Delegated Legislation - concept, procedure and validity.

3. Statutory tribunals – enquiries- Lokpal and Lokayuktha.

4. Privileges and liabilities of the administration - Concept of

5. Growth of local self government institutions -Government and

Topic 1. Administrative Law : Introduction

1.1. Definition of Administrative Law :

 Austin has defined administrative Law. As the law,

Dicey in 19th century defines it as.

Firstly, portion of a nation’s legal system which determines the legal

Secondly, defines the right and liabilities of private individuals in

their dealings with public officials.

Study Notes on Administrative Law [Semester 04]

Thirdly, specifies the procedure by which those rights and liabilities

This definition suffers from certain imperfections. It does not cover

In the view of Friedman, Administrative Law includes the following.

 The legislative powers of the administration both at common

A careful perusal of the above makes it clear that Administrative Law

1) Who are administrative authorities?

1.2. Growth of Administrative Law

Thus the concept of administrative law has assumed great importance

Study Notes on Administrative Law [Semester 04]

very aggressive. It was born out of desire on the part of judiciary to

Administrative law has been considered to be the most outstanding

The opening statement signifies that administrative law has grown

But all the things changed with the advent of independence. A

the area of state operation it has taken over a number of functions

Study Notes on Administrative Law [Semester 04]

which were previously left to private enterprise. The state today

1.2.1. Reasons for the Growth of Administrative Law

1. There is a radical change in the philosophy as to the role

solved merely by literally interpreting the provisions of any

Study Notes on Administrative Law [Semester 04]

statute, but required consideration of various other factors

Today in India, the administrative process has grown so much that it

Topic 2. The Rule of Law (നിയമ വാഴ്)ച

as Hobbes, Locke and Rousseau, called the Rule of Law as the

Study Notes on Administrative Law [Semester 04]

‚Rule of law‛ is to be understood neither as a ‚rule‛ nor a ‚law‛. It is

The Expression ‚ Rule of Law‛ plays an important role in the

Rule of law Embodies the doctrine of supremacy of law. It is a basic

2.1. Dicey’s Concept of Rule of Law

These three meanings of rule of Law has been discussed below in

Study Notes on Administrative Law [Semester 04]

2.1.1. Supremacy of law

It is the absence of discretionary power in the hands of the

According to this doctrine, no man can be arrested, punished or be

The first principle is the recognition of Cardinal principle of

2.1.2. Equality before law

Study Notes on Administrative Law [Semester 04]

No person should be made to suffer in body or deprived of office,