You are on page 1of 343

1-25

1
6
11
16
21
26

VERY SHORT ANSWERS


26-50 12 51-75 29

57
99

2
7
12
17
22
27

LONG ANSWERS
68
3
74
4
105
8
114
9
13
14
18
19
23
24
28
29

76115

80

38

5 89
10
15
20
25
30

SHORT ANSWERS
1

140

ADMINISTRATIVE LAW
VERY SHORT-ANSWER QUESTIONS
Q. 1. How Dicey defines Administrative law?.
Ans. According to Dicey, "Administrative law is that portion of a
nation's legal system which determines the legal status and
liabilities of all state officials, which defines the righls and
liabilities of private individuals in their dealings with public
officials, and which specifics the procedure by which those
rights and liabilities are enforced."
Q. 2. How Jennings defined Administrative law?.
Ans. According to Sir Ivor Jennings, "Administrative Law is the
law relating to the administration. Il determines the
organisation, powers and duties of Administrative authorities.
Q. 3. How Wade and I'hilips define Administrative law?.
Ans. According to Wade and Philips, "Administrative law is a
branch of public law which is concerned with the composition,
powers, duties, rights and liabilities of the various organs of
government which are engage'd in administration."
Q. 4. Define Administrative law according to Griffith and
Street.
Ans. According lo Griffith and Street, Administrative law is
concerned with three questions : (i) What sort of powers does
(he administration exercise? (ii) What are the limits of those
powers?. (iii) What are the ways in which the administration is
2

kept within those limits?.


Q. 5. What is the nature and scopc of Administrative law?.
Ans. Administrative law is concerned with the operation and
control of administration, with emphasis on function rather
than on structure. It deals with adminislralive process and its
control. Due to various reasons, the administiative process has
comc to slay in all progressive societies, particularly in a welfare
state, where many schemes for the progress of society are
prepared and administered by the government
Q. 6. Whether Administrative law is law in realist's sense?.
Ans. Administrative Law is law but it is not a law in the lawyer s
sense like property law or contract law. It is a law in the realist's
sense of the term which includes statute law, administrative
rule making, precedents, customs and administrative directions.
It also includes the study of something which may not be
termed 'Law' in the true sense of the term such as
administrative circulars, policy statements, memoranda and
resolutions *
Q. 7. What do you mean by Administration?.
Ans. Meaning of AdministrationIt is not enough to say that an
administrative body is one which administers, for the
administration does not only put the law into effect, but does
much more. It legislates and adjudicates. Sometimes,
administration is explained in negative way by saying that what
does not fall within the purview of legislature and judiciary is
administration.
3

Q. 8. What do you mean by Administrative Process?.


Ans. Meaning of Administrative ProcessThe administrative
process consists of carrying on business of government, or
regulating the affairs of individuals in the interests of
community. Due to various reasons, the administrative process
has come to stay as indispensable phenomenon in all
progressive societies, particularly in a welfare stale where many
schemes for the purposes of society are prepared and
administered by the government.
Q. 9. Whether horizons at administrative jurisdiction arc
expanding?
Ans. Expanding Horizons of Administrative JurisdictionSince
tnere is unprecedented increase in state activities, the executive
exercises very wide powers. Apart from pure administrative and
executive functions, by way of delegated legislation it exercises
legislative functions and makes a plethora of rules, regulations,
bye-laws, notifications, etc. substantially affecting the righls of
public at large.
Q. 10. What are the measures of Administrative law?.
Ans. Measures of Administrative LawMeasures in
administrative law are : (i) to check abuse or detournmenl of
administrative power, (ii) to ensure to citizens an impartial
determination of their dispute by officials, (iii) to protect them
from unauthorised encroachcnient on their rights and interests,
(iv) to make those who exercise public power accountable to
the people, (v) to see that holders of public power justify their
action as legally valid and socieally wise and just, and (vi) to
ensure that public power is not exercised against public
4

interest.
Q. 11. What are the reasons of the growth of Administrative
law?.
Ans. Reasons of the Growth of Administrative LawThese are :
(i) change in he concept of Govt., (ii) Demand of the Public, (iii)
Regulatory measures, (iv) Evolution of
Socialistic Pattern of society, (v) Inadequacy of judicial system,
(vi) Inadequacy of Legislative process, (vii) Scope for
experimentation in administrative process, (viii) Nontechnical
character of administrative process, (ix) Adoption of Prevantive
measures and (x) Policy of preventive measures.
Q. 12.What is the difference between Constitutional law and
Administrative law?
Ans. Difference between Constitutional law and Administrative
LawThough in essence constitutional law does not differ from
administrative law inasmuch as both are concerned with the
functions of Government, both are a part of public law in the
modern state. There is, however, a distinction between the two.
According to Holland, the constitutional law describes the
various organs of government at rest, while administrative law
describes them in motion. According to this view the structure
of legislature and executive comes within the sphere of
constitutional law while their functioning comes under the
purview of administrative law.
Q. 13. What do you mean by Droit Administratif?.
Ans. Meaning of AdministratifAccording to Dicey, "Droit
administratif is that portion of French Law which determines
5

(i) the position and liabilities of state officials;


(ii) the civil rights and liabilities of private individuals in their
dealings with officials as representatives of the state, and
(iii) the procedure by which these rights and liabilities are
enforced."
Q. 14. What do you mean by Conceil d' Etat?.
Ans. Conceil d' Etat consists of a body of men who are on the
one side the confidential advisors of he Government and on the
other decide the cases of the subjects against the
administration. In the latter case, they act as uncommitted
judges and if necessary condemn the executive act. This
paradox has made the Conseil d' Etat, an efficacious institution
in France.
Q. 15. What are the characteristics features of Droit
Administratif?.
Ans. Characteristic Features of Droit AdministratifThese are
:
(i) Matters concerning state and administrative litigation fall
within the jurisdiction of administrative Court and cannot be
decided by the ordinary courts of the land,
(ii) In deciding matters concerning the state and administrative
litigation, rules as developed by the administrative courts are
applied,
(iii) If there is conflict of jurisdiction between ordinary courts
and administrative court, it is decidcd by the Tribunal des
conflicts,
(iv) Conseil d' Etat is the supreme administrative court.
6

Q. 16. What is the difference between Administrative law and


Public law?.
Ans. (i) Administrative law is the law relating to public
administration. It deals with the organisation, powers, rights,
duties, function and liabilities of administrative agencies. The
structure of administration is excluded from the formulation.
Since, however, the structure must be known for understanding
of the subject, and so the meaning attached to 'Public
Administration' must be made clear. Therefore, a brief account
is included in the study of administrative law. But matters of
purely internal administration and management of an
administrative agency should he excluded from the purview of
administrative law. Such matters as recruitment of staff
members, their leave, promotion, gradation rules, etc., are
matters which come more properly within the area of public
administration and not so much within administrative law.
(ii) Administrative Law is concerned with those aspects of
administrative agency that affect the person and property of
private citizens e.g., legislative powers of the administration,
administrative adjudicatory authority. Administrative Law is the
law controlling the administration, and not the law produced by
the administration.
Q. 17. Trace the historical growth of Administrative law in
India.
Ans. Administration and administrative law are the all pervading
features of government today, and at the sam; time they are
most ancient. Administrative Law was in existence in India even
in ancient times. In India, the history of administrative law can
be traced to the well organised and centralised administration
7

under the Mauryas and Guptas, several centuries before the


Christ. The rule of Dharma was in action. The k;ngs and
administrators observed the rule of Dharma and none claimed
any exemption from it
Q. 18. What are the characteristics of a welfare state?.
Ans. The Characteristics of a Welfare StateThese are :
(i) a vast increase in the range and detail of government
regulation of privately owned economic enterprise,
(ii) the direct furnishing of services by government to individual
meambers of the community the economic and social
services as social security, low-cost housing, medical care etc.,
(iii) increasing government ownership and operation of
industries and business, which at an earlier time, were or would
have been operated for profit by individuals or corporations.
Q. 19. What are the functions of a Welfare State?.
Ans. Functions of a Welfare StateThese are :
(i) Distributive JusticeThere is a vast and inevitable increase in
the frequency with which ordinary citizens come into direct
relationship with wielders of power. An ordinary citizen's
encounter is significantly with the officers representing
regulatory authorities, licensing officers granting or refusing
licences, dispensers of social services, managers of public sector
undertakings etc.
(ii) National PlanningUnder the Industries (Development &
Regulation) Act, the government has been given vast powers to
regulate and control private enterprise. The Act requires the
licensing and registration of industrial undertakings engaged in
the manufacture or production of articles listed in the schedule
8

to the Act. The issue of licence is discretionary with the


government as the Act lays down no conditions for the purpose.
(iii) Labour WelfareSince Independence, a number of Acts
were passed to promote labour welfare. The result is that the
activities and the functions of government have further
increased.
Q. 20. What do you mean by 'Rule of Law'?.
Ans. Meaning of Rule of LawAccording to Dicey, Rule of law is
a Fundamental principle of English Constitution and has three
district meanings:
(i) Supremacy of Law,
(ii) Equality before Law,
(iii) Predominance of Legal Spirit.
Q. 21. What is the modern conception of 'Rule of law'?.
Ans. Modern Concept of the Rule of LawThe modern concept
of the Rule of Law is fairly wide. Davis gives seven principal
meanings of the term Rule of Law :
(i) Law and Order,
(ii) Fixed rules,
(iii) Elimination of discretion,
(iv) Due Process of law or fairness,
(v) Natural Law or observance of the principles of natural
justice,
(vi) Preference for judges and ordinary courts of law to
executive authorities and administrative tribunals, and
(vii) Judicial review of administrative action.

Q. 22. What is the concept of rule of law under Indian Law?.


Ans. The concept of the fule of law exists in this country by
virtue of the following features :
(i) Supremacy of the Constitution,
(ii) Constitutional requirement of equality,
(iii)Constitutional guarantee and judicial enforcement of rights.
(iv) Rule of law as a legal concept,
(v)Rule of Law as a feature of basic structure,
(vi) Elimination of arbitrariness, and not of discretion
(vii) Compliance with the requirement of law,
(viii) Fairness in action,
(ix) National policy of reservation for Backward Classes and
constitutional viability of creamy-layer,
(x) Pervasiveness of the concept of rule of law
Q. 23. What do you mean by Administrative Action?.
Ans. Meaning of Definition of Administrative ActionIn Ram
Jawalya Vs. State of Punjab A.I.R. 1955 SCR 549, Mukerjee C.J.
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 remains after legislative and
judicial functions are taken away". Thus, administrative action is
that action which is neither legislative nor judicial in character.
Q. 24. What arc the essentials of Aministrative Action?.
Ans. Essential Elements of Administrative ActionThese are
(i) Administrative action is generally based on governmental
policy or expediency,
(ii) Administrative action is subjective rather than-objeetive. The
10

grounds on which the action is taken and the procedure for


taking the action are a matter of discretion of the authority
which is taking action,
(iii) While taking a decision, an administrative authority may hot
only consider the evidence adduced by the parties to the
controversy but may also use its discretion. Discretion looms
large in administrative action,
(iv) An administrative decision may be held to be invalid on the
ground of unreasonableness,
(v) Administrative action is not required to follow the elaborate
procedure of collecting evidence and weighing argument,
(vl) Administrative action may be delegated and sub-delegated,
(vii) Administrative action will not become a quasi-judicial
action, even if it has to be performed after forming an opinion
as to the existence of any objective fact,
(viii) Administrative action is concerned with the treatment of a
particular situation and is devoid of generality,
(ix) Administrative action does not decide a right though it may
affect a right.
Q. 25. What are the examples of Administrative Action?.
Ans. Examples of Administrative ActionThese arc :
(i) Issuance of directions to subordinate officers not having th'e
force of law.
(ii) Preventive detention,
(iii) Acquisition or requisition of property,
(iv) Action setting up a commission of inquiry,
(v) Making a reference to a tribunal under the Industrial
Disputes Act.
(vi) Assessment under the the Sales Tax Act.
11

(vii) An order granting oi refusing to grant permission of sale in


favour of non-agriculturist under the Tenancy Act.
(viii) Fact finding action,
(ix) Power to issue licence
(x) Entering names in the Register of Police.

Q. 26. What do you mean by Legislative Action?.


Ans. Legislative ActionLegislative action of the administration
is a rule-making function. When any administrative authority
exercises law-making power delegated to it by the legislature it
is known as the rule-making action of the administration or
quasi-legislative action. Legislative action of the administration
consists of making rules', regulations, bye-laws etc.
Q. 27. What is the distinction between Quasi-Legislative action
and Quasi-Judicial action?.
Ans. Distinction between QuaSi-legislatire Action and Quasijudicial Action-According to Schwartz, "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 status
expressly requires them.
Q. 28. What is the distinction between Legislative and Judical
Action? Ans. Distinction between Legislative and Judicial
ActionThe committee on Minister's powers distinguished
12

between administrative and legislative action on the ground


that where the former is a process of performing particular acts
or of making decisions involving the application of general rules
to particular cases, the latter is the process of formulating
general rule of conduct without reference to particular case and
usually for future operation.
The distinction between legislative and administrative actions
assumes significance inter alia because of the following reasons
: (i) PublicationIf an order is legislative in character, it has to
be published in certain manner, but it is not necessary if it is of
an administrative nature, (ii) Need of compliance with the
principles of natural justiceIf an order is legislative in
character, principles of natural justice are not required to be
followed, but if an order is an administrative order and the
authority was required to act judicially, the principles of natural
justice are required to be observed.
Q. 29. What is the difference between Legislative and Judicial
Action? Ans. Legislation means the formulation of general rules
which are to be operative in future. There is generality about
the application of legislative provisions. Legislation gives new
right or disability. Law-making is formulation of new policy.
Judicial function in contradistinction to legislative function is
particularly based on the facts of a case and declares a preexisting right. A judicial decision is taken on hearing the parties
and after examining (he evidence. But this is not so in case of
legislative action.
Q. 30. What do you mean by a Judicial Action?.
Ans. The Committee on Ministers Powers was of the view that a
13

pure judicial action presupposes a lis between two or more


parties and then it involves four requisites : (i) Presentation of
case, (ii) If (he dispute is a question of fact, the ascertainment of
fact by means of evidence given by (he parties, (iii) If the
dispute between them is a ques(ion of law, (he submission of
legal argument by the parties, (iv) A decision which disposes of
the whole mailer by applying (he law to the facts.
Q. 31. What is the distinction between Judicial, Quasi-judicial
and Administrative Action?.
Ans. The Committee has expressed (he view that a quasi-judicial
decision equally pre-supposes an existing lis between two or
more parties and involves (i) and (ii) but does not necessarily
involve (iii) and never involves (iv) The place of (iv) is, in fact,
taken by the administrative action, (he character of which is
determined by the Minister's choice. It means the Minister is
free (o (ake administrative action as he may think fit. The
process of (iv) is not necessary in disposing of (he matter.
Q. 32. What do you mean by quasi-judicial Action?.
Ans. The word 'quasi' means no( exacdy. 'Generally an aclion is
described as quasi-judicial when it has some of (he atlributes or
(rappings of a judicial action but not all. According to the
Committee on Ministers' Powers, the word 'quasi' when
prefixed to a legal term, generally means (hat (he thing, which is
described by the word, has some of (lie legal at(ribu(es denoted
and connoted by (he legal (erm but that i( has no( all of (hem".
According to the Committee on Minister's PowersThe
Committee has expressed (he view (hat a quasi-judicial decision
equally pre supposes an existing lis between (wo or more
14

parties and involves (i) and (ii) but does not necessarily involve
(iii) and never involves (iv). The place of (iv) is. in fact, taken by
(he administrate ac(ion, (he character of which is dc(ermined by
(he Minister's choice. Il means the Minister is free to take
administrative aclion as he may think fit. The process of (iv) is
not necessary in disposing of the mat(er.
Q. 33. What is the distinction between Quasi-judicial Action
and Judicial Action?
Ans. A quasi-judicial action differs from a purely judicial action
in (he following respec(s : (i) A quasi-judicial authorily has some
of the trappings of a court, but not all of Ihem, nevertheless
(here is an obliga(ion (o ac( judicially, (ii) A lis inter paries is an
essen(ial characteristic of a judicial action but this may not be
true of a quasi-judicial aclion. (iii) A court is bound to follow the
rules of evidence and procedure while a quasiAdministrative Law
(i) Distributive JusticeThere is a vast and inevitable increase in
the frequency with which ordinary citizens come into direct
relationship with wielders of power. An ordinary citizen's
encounter is significantly with the officers representing
regulatory authorities, licensing officers granting or refusing
licences, dispensers of social services, managers of public sector
undertakings etc. (ii) National PlanningUnder the Industries
(Development & Regulation) Act, the government has been
given vast powers to regulate and control private enterprise.
The Act requires the licensing and registration of industrial
undertakings engaged in the manufacture or production of
articles listed in the schedule to the Act. The issue of licence is
discretionary with the government as the Act lays down no
15

conditions for the purpose.(iii) Labour WelfareSince


Independence, a number of Acts were passed to promote
labour welfare. The result is that the activities and the functions
of government have further increased.
Q. 20. What do you mean by 'Rule of Law'?.
Ans. Meaning of Rule of LawAccording to Dicey, Rule of law is
a Fundamental principle of English Constitution and has three
district meanings:
(i) Supremacy of Law, (ii) Equality before Law, (iii) Predominance
of Legal Spirit. Q. 21. What is the modern conception of 'Rule of
law'?.
Ans. Modern Concept of the Rule of LawThe modern concept
of the Rule of Law is fairly wide. Davis gives seven principal
meanings of the term Rule of Law : (i) Law and Order, (ii) Fixed
rules, (iii) Elimination of discretion, (iv) Due Process of law or
fairness, (v) Natural Law or observance of the principles of
natural justice, (vi) Preference for judges and ordinary courts of
law to executive authorities and administrative tribunals, and
(vii) Judicial review of administrative action.
Q. 22. What is the concept of rule of law under Indian Law?.
Ans. The concept of the fule of law exists in this country by
virtue of the following features : (i) Supremacy of the
Constitution, (ii) Constitutional requirement of equality,
(iii)Constitutional guarantee and judicial enforcement of
rights.(iv) Rule of law as a legal concept, (v)Rule of Law as a
feature of basic structure, (vi) Elimination of arbitrariness, and
not of discretion (vii) Compliance with the requirement of law,
(viii) Fairness in action, (ix) National policy of reservation for
16

Backward Classes and constitutional viability of creamy-layer,


(x) Pervasiveness of the concept of rule of law
Q. 23. What do you mean by Administrative Action?.
Ans. Meaning of Definition of Administrative ActionIn Ram
Jawalya Vs. State of Punjab A.I.R. 1955 SCR 549, Mukerjee C.J.
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 remains after legislative and
judicial functions are taken away". Thus, administrative action is
that action which is neither legislative nor judicial in character.
Q. 24. What arc the essentials of Aministrative Action?.
Ans. Essential Elements of Administrative ActionThese are (i)
Administrative action is generally based on governmental policy
or expediency, (ii) Administrative action is subjective rather
than-objeetive. The grounds on which the action is taken and
the procedure for taking the action are a matter of discretion of
the authority which is taking action, (iii) While taking a decision,
an administrative authority may hot only consider the evidence
adduced by the parties to the controversy but may also use its
discretion. Discretion looms large in administrative action, (iv)
An administrative decision may be held to be invalid on the
ground of unreasonableness, (v) Administrative action is not
required to follow the elaborate procedure of collecting
evidence and weighing argument, (vl) Administrative action may
be delegated and sub-delegated, (vii) Administrative action will
not become a quasi-judicial action, even if it has to be
performed after forming an opinion as to the existence of any
17

objective fact, (viii) Administrative action is concerned with the


treatment of a particular situation and is devoid of generality,
(ix) Administrative action does not decide a right though it may
affect a right.
Q. 25. What are the examples of Administrative Action?.
Ans. Examples of Administrative ActionThese arc : (i) Issuance
of directions to subordinate officers not having th'e force of
law. (ii) Preventive detention, (iii) Acquisition or requisition of
property, (iv) Action setting up a commission of inquiry, (v)
Making a reference to a tribunal under the Industrial Disputes
Act. (vi) Assessment under the the Sales Tax Act. (vii) An order
granting oi refusing to grant permission of sale in favour of nonagriculturist under the Tenancy Act. (viii) Fact finding action, (ix)
Power to issue licence (x) Entering names in the Register of
Police.
Q. 26. What do you mean by Legislative Action?.
Ans. Legislative ActionLegislative action of the administration
is a rule-making function. When any administrative authority
exercises law-making power delegated to it by the legislature it
is known as the rule-making action of the administration or
quasi-legislative action. Legislative action of the administration
consists of making rules', regulations, bye-laws etc.
Q. 27. What is the distinction between Quasi-Legislative action
and Quasi-Judicial action?.
Ans. Distinction between QuaSi-legislatire Action and Quasijudicial Action-According to Schwartz, "If a particular function is
termed 'legislative' or 'rule-making' rather than 'judicial' or
18

'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 status
expressly requires them.
Q. 28. What is the distinction between Legislative and Judical
Action?
Ans. Distinction between Legislative and Judicial ActionThe
committee on Minister's powers distinguished between
administrative and legislative action on the ground that where
the former is a process of performing particular acts or of
making decisions involving the application of general rules to
particular cases, the latter is the process of formulating general
rule of conduct without reference to particular case and usually
for future operation.
The distinction between legislative and administrative actions
assumes significance inter alia because of the following reasons
: (i) PublicationIf an order is legislative in character, it has to
be published in certain manner, but it is not necessary if it is of
an administrative nature, (ii) Need of compliance with the
principles of natural justiceIf an order is legislative in
character, principles of natural justice are not required to be
followed, but if an order is an administrative order and the
authority was required to act judicially, the principles of natural
justice are required to be observed.
Q. 29. What is the difference between Legislative and Judicial
Action?
Ans. Legislation means the formulation of general rules which
are to be operative in future. There is generality about the
19

application of legislative provisions. Legislation gives new right


or disability. Law-making is formulation of new policy. Judicial
function in contradistinction to legislative function is
particularly based on the facts of a case and declares a preexisting right. A judicial decision is taken on hearing the parties
and after examining the evidence. But this is not so in case of
legislative action.
Q. 30. What do you mean by a Judicial Action?.
Ans. The Committee on Ministers Powers was of the view that a
pure judicial action presupposes a lis between two or more
parties and then it involves four requisites : (i) Presentation of
case, (ii) If (he dispute is a question of fact, the ascertainment of
fact by means of evidence given by (he par(ies, (iii) If (he dispute
be(ween them is a ques(ion of law, (he submission of legal
argumcn( by the parties, (iv) A decision which disposes of the
whole mailer by applying (he law to the facts.
Q. 31. What is the distinction between Judicial, Quasi-judicial
and Administrative Action?.
Ans. The Committee has expressed (he view (hat a quasi-judicial
decision equally pre-supposes an existing lis between two or
more parties and involves (i) and (ii) but does not necessarily
involve (iii) and never involves (iv) The place of (iv) is, in fact,
taken by the administrative action, (he character of which is
determined by the Minister's choice. It means the Minister is
free (o (ake administrative action as he may think fit. The
process of (iv) is not necessary in disposing of (he matter.
Q. 32. What do you mean by quasi-judicial Action?.
20

Ans. The word 'quasi' means not exactly. 'Generally an action is


described as quasi-judicial when it has some of (he attributes or
(rappings of a judicial action but not all. According to the
Committee on Ministers' Powers, the word 'quasi' when
prefixed to a legal term, generally means (hat (he thing, which is
described by (he word, has some of (lie legal aUributes denoted
and connoted by (he legal (erm but that it has not all of them".
According to the Committee on Minister's PowersThe
Committee has expressed ihe view thai a quasi-judicial decision
equally pre supposes an existing lis between (wo or more
parties and involves (i) and (ii) but does not necessarily involve
(iii) and never involves (iv). The place of (iv) is. in fact, taken by
(he administrate ac(ion, (he character of which is determined by
(he Minister's choice. Il means the Minister is free to take
administrative aclion as he may think fit. The process of (iv) is
not necessary in disposing of the matter.
Q. 33. What is the distinction between Quasi-judicial Action
and Judicial Action?
Ans. A quasi-judicial action differs from a purely judicial action
in (he following respec(s : (i) A quasi-judicial authority has some
of the trappings of a court, but not all of Ihem, nevertheless
there is an obligation to act judicially, (ii) A lis inter paries is an
essen(ial characteristic of a judicial action but this inay not be
true of a quasi-judicial aclion. (iii) A court is bound to follow the
rules of evidence and procedure while a quasi-judicial authority
is free from such requirements, (iv) While a court is bound by
precedents, a quasi-judicial authority is not so bound, (v) A
court cannot be a judge in its own cause (except in a contempt
case), while an administrative authority vested with quasi21

judicial powers may be a party to the controversy but can still


decide it. (vi) Unlike judicial decision which disposes of the
whole matter by applying law to the facts, a quasi-judicial
decision is given after applying policy to facts.
Q. 34. What do you mean by Administrative Instructions?.
Ans. Administrative operation of government proceeds on the
assumption that the superior administrative authorities issue
administrative instructions to their subordinates. The executive
function comprises both the determination of the policy as well
as carrying it into execution. Since there is unprecedented
increase in the governmental functions, it is indispensable for
the government to issue administrative instructions for the
determination of policy and its uniform application. Generally
speaking, administrative rules, regulations or instructions which
have no statutory force do not create any legal right in favour of
aggrieved party and cannot be enforced through court of law
against the administration.*
Q. 35. What do you mean by Delegated Legislation?
Ans Meaning of Delegated LegislationDelegated legislation
means the law made by the executive under the powers
delegated to it by the legislature A simple definition of the term
'delegated legislation' may be given as follows : "When the
function of legislation is entrusted to organs other than the
legislature itself, the legislation made by such organs is called
delegated legislation."
Q. 36. What is the Nature Based classification of Delegated
Legislation? Ans. Nature Based ClassificationDelegated
22

legislation may also be classified on the basis of the nature and


extent of delegation of legislative power. According to the
Committee on Minister's powers, there arc two types of
parliamentary delegation : (i) Normal and (ii) Exceptional
Q. 37. What do you mean by normal delegation?. Ans. Normal
DelegationThere are two types of normal delegation : (a)
Positive delegationWhere the limits are clearly defined in the
Parent Act, it is called positive delegation, (b) Negative
delegationWhere the delegted power does not include power
to do certain things, it is known as negative delegation e.g.,
power to legislate on matters of policy or power to impose tax.

Q. 38. What do you mean by exceptional delegation?.


Ans. Exceptional DelegationExceptional delegation is also
known as Henry VIII clause. Instances of exceptional delegation :
(i) Power to legislate on matters of principle, (ii) Power to
amend Acts of Parliament, (iii) Power giving such a wide
discretion that it is almost impossible to know the limits, (iv)
Power to make rules which cannot be challenged in a court of
law.
Q. 39. What do you mean by Permissible Delegation?.
Ans. There are two modes of permissible delegation. In America
they are known as contingent and subordinate. Similaily in India
also there are two types of delegated legislation, viz.,
conditional and subordinate. In India, 'conditional' legislation
represents nearly the same idea as 'contingent' legislation in
America. Contingent legislation is defined as "a statute that
23

provides control t>ut specifies that they are to come into effect
only when a given administrative authority finds the existence
of conditions defined in the statute". In subordinate legislation,
on the other hand, the process consists of a discretionary
elaboration of rules and regulations.
Q. 40. What do you mean by Impermissible Delegation?.
Ans. Impermissible DelegationThere is no specific bar in our
Constitution against the delegation 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.
Q. 41. What do you mean by Delegatus non potest delegare?.
Ans. Delegatus Nun Potest Delegare : A delegate cannot further
delegate Betides the doctrine of separation of powers, the U.S.
Supreme Court has also invoked the doctrine ol delegatus non
potest delegare against delegation by the Congress. The
doctrine means that a delegate cannot further delegate its
powers. As the Congress gets power from the people, and is a
delegate of the people in that sense, it cannot further delegate
its legislative power to the executive or to any other agency.
Legislatures stand in this relation to the people whom tlicy
represent llencc. it is a cardinal principle of representative
government, that legilluture cannot delegate tin- power to
make laws to any other body or authority. However, strict
24

adherence to the non-delegation doctrine was not practicable.


Q. 42. Explain the constitutionality of delegated Legislation as
laid down in Rc-Dclhi Laws Act, AIR 1951 S.C. 332.
Ans. The President of India 'sought the opinion of Supreme
Court U/Art. 143 of the Constitution regarding the
constitutionality of delegated Legislation with respect to (i) S. 7
of Delhi Laws Act, 1912, (ii) S. 2 of Ajmer-Mewar (Extention of
Laws) Act, 1947, and (iii) S. 2 of the Part C States Laws Act, 1950.
There were a few Part C States. Delhi was one of them. Part C
States were under the direct administration of the Central
Government as they had no legislature of their own. Parliament
had to legislate for these States. It was, therefore, that
Parliament passed a law. the Part C States (Laws) Act, 1950. The
Central Government was authorised by S. 2 of the Part C States
(laws) Act, 1950 to extend to any Part C State with such
modifications and restriction as it thinks fit, any enactment in
force in a Part A State, and while doing so, it could repeal or
amend any corresponding law (other than a central law) which
might be in force in the Part C States. Really. It was a very
sweeping kind of delegation. By a majority, the specific
provision in question was held valid subject to two limitations :
(i) The executive cannot be authorised to repeal a law in force
and thus, the provision, which authorised the Central
Government to repeal a law already in force in the Part C States
was bad, and (ii) By exercising the power of modification, the
legislative policy should not be changed, and thus, before
applying any law to the Part C Stale the Central Government
cannot change the legislative policy.
25

Q. 43. What principles of law were laid down in Re Delhi Laws


Act A.I.R. 1951 S.C. 332?.
Ans. These are : (i) Parliament cannot abdicate or efface itself by
creating a parallel legislative body, (ii) Power of delegalion is
ancillary to the power of legislation, (iii) The limitation upon
delegation of legislative power is that the legislature cannot
part with its essential legislative power that has been expressly
vested in it by the Constitution. Essential legislative power
means laying down policy of law and enacting that policy into a
binding rule of conduct, (iv) Power to repeal is legislative and it
cannot be delegated. The theme of Re Delhi Laws Act case is
that essential legislative function cannot be delegated whereas
non-essential can be delegated
Q. 44. What do you mean by Excessive Delegation or
Permissible limits on Delegation?.
Ans. The Doctirine of Exessive Delegation is borrowed from
U.S.A. It means that an Indian legislature cannot delegate
unlimited legislative power to an administrative authority. The
advantage of the doctrine is that the courts can dcclare too
broad delegation of legislative power as exessive and hence
invalid. As regards the determination of the limit of delegation,
there are two views : (i) Legislature can delegate legislative
power provided this does not amount to abdiction of essential
legislative function which consist of the formulation of Policy
and enacting it into a binding rule of conduct and (ii) Legislature
can delegate legislative power provided that it lays down the
policy. Courts have determined the validity of delegation of
legislative power on the basis of these principles.
26

Q. 45. What do you mean by Conditional Legislation?.


Ans. Conditional legislation may be defined as 'a statute that
provides controls but specifies that they are to go into effect
only when a given administrative authority finds the existence
of conditions defined in the statute'. When conditional
legislation is passed by the legislature, the law is full and
complete. No legislative function is delegated to the executive.
However, such Act is not brought into force. It is left to the
executive to bring the Act into operation on the fulfilment of
certain conditions and for that reason the legislation is called
'conditional legislation.' In Emperor Vs. Benoari Lai 721. A 57
(1945), an ordinance promulgated by the Governor-General
provided for setting of Special Courts. But the operation of the
ordinance was left to the Provincial Government on being
satisfied that emergency had come into existence. The validity
of the ordinance was upheld. According to the Privy Council it
was a piece of conditional legislation as the legislation was
complete and what had been delegated was the power to apply
the ordinance on fulfilment of certain conditions.
Q. 46. What is the distinction between Conditional Legislation
and Delegated Legislation?.
Ans. In conditional legislation it is the function of the executive
to apply the law after fact-finding, e.g., to inquire whether the
facts requiring operation of the Act exist, but in delegated
legislation, it is left to the discretion of government whether to
exercise discretion delegated to it or not?.
Q. 47. How judicial control is cxerciscd over delegated
Legislation?.
27

Ans. Judicial control oVer delegated legislation is exercised by


applying two tests :
(i) Substantive ultra vires, and (ii) Procedural ultra vires.
Q. 48. What do you mean by Substantive Ultravircs?.
Ans. Ultra vires means beyond powers, when a subordinate
legislation goes beyond the scope of authority conferred on the
delegate to enact, it is known as substantive ultra vires. It is a
fundamental principle of law that a public authority cannot act
outside the powers and if the authority acts, 'such act becomes
ultra vires and, accordingly void'. It has been rightly described
as 'the central principle' and 'foundation of large part of
administrative law'. An act which is done in excess of power is
ultra vires.
Q. 49. What do you mean by Procedural Ultra Vires?.
Ans. When a subordinate legislation is enacted without
complying with the procedural requirements prescribed by the
Parent Act or by the general law, it is known as procedural ultra
vires. In case of procedural ultra vires, the Courts may or may
not quash delegated legislation as it depends upon the
circumstances whether the procedure is held to be mandatory
or directory.
Q. 50. Under what circumstanccs judicial control over
delegated legislation is exercised by applying the doctrine of
Ultra Vires?.
Ans. Judicial control over delegated legislation is exercised by
applying the doctrine of ultra vires in the following
circumstances : (i) Where Parent Act is ultra vires the
28

Constitution, (ii) Where delegated legislation is ultra vires the


Constitution, (iii) Where delegated legislation is ultra vires the
Parent Act.

Q. 51. What is the effect of Ultra Vires Act?.


Ans. Effect of Ultra Vires ActIf an action is declared Ultra
Vires, it is null and void and of no legal effect whatsoever. It has
no legal leg to stand on.
Q. 52. What do you mean by Administrative Directions?.
Ans. Meaning of Administrative DirectionsAdministrative
directions are in the nature instructions which are issued by the
government to the various departments. Generally
administrative directions are issued by the Superior Officers to
their subordinates and contain guidelines for the exercise of
powers.
Q. 53. What is the difference between Administrative
Directions and Delegated Legislation?.
Ans. Delegated Legislation can be made only when the authority
concerned has statutory power to do so. However, statutory
power is not required for issuing directions. Generally,
directions are issued under general administrative power of the
government, although, sometimes statutory power may also be
given to issue directions. Delegated legislation is binding on
both the administration and the individual. It is enforceable
through the Court at the instance of either the individual or the
administration.
29

Q. 54. How will you determine whether a particular piece of


Gov', legislation is delegated legislation or direction?.
Ans. Whether a particular piece of government legislation is
'delegated legislation' or 'direction' may be determined on the
basis of the following factors : (i) If it discloses the statutory
provision under which it has been made, then should be
regarded as a 'rule'.
(ii) As to the direction it is not essential to disclose the
statutory provision under which it has been made, (iii) A piece
of government legislation may be regarded as a 'rule' if it has
been made under a specific statutory provision which
authorises to do so.
Q. 55. What do you mean by Natural Justice?.
Ans. Natural justice represents higher procedural principles
developed by judges which every administrative agency must
follow in taking decision adversely affecting the rights of private
individuals. The concept of natural justice entails two principles
: (i) Nemo judex in causa suaNo man shall be Judge in his own
cause or the deciding authority must be impartial and without
biasRule against Bias, (ii) Audi alteram partem Hear the
other side, or both sides must be heard, or no man should be
condemned unheard or that there must be fairness on the part
of deciding authorityRule of hearing or fair hearing.
Q. 56. What is rule against Bias?.
Ans. Meaning of Rule Against BiasThe first principle of natural
justice is rule against bias. It means that the deciding authority
must be impartial and neutral. That bias disqualifies an
individual from acting as Judge flows from two principles : (i) No
30

one should be a Judge in his own Cause, and (ii) Justice should
not only be done but appear to be done. Proceedings before a
deciding authority may be vitiated if he is biased or has his own
interest in the case before him

Q. 57. What are the various kinds of Bias?.


Ans. Various Kinds of BiasThese are (i) Pecuniary bias (ii)
Personal bias, (iii) Subject-matter bias, (iv) Departmental bins,
and (v) Policy bias

Q. 58. What do you mean by Audi alterm partem or Rule of


hearing?. Ans. Audi Alteram Partem : Rule of HearingThe audi
alteram partem rule means that no one should be condemned
unheard. In a civilised society it is assumed that a person against
whom any action is sought- to be taken, or whose right or
interest is being af fected, shall be given a reasonable
opportunity to defend himself. This jural postulate is the kernel
of natural justice. In short, the principle is that before an order
is passed against any person reasonable opportunity of being
heard must be afforded to him. Generally, the maxim includes
two ingredients : (i) notice, and (ii) hearing.
Q. 59. What do you mean by reasoned decision or speaking
order?. Ans. Meaning of a Reasoned DecisionIt means a
decision which must contain reasons in support of it. In India
natural justice postulates that party has right to know not only
the decision but also the reasons for that decision. But this is
not a universally established rule although in certain situations
31

it is rigidly enforced. The duty to give reasons may be statutory


or non-statutory. Where the duty is required by the statute, the
authority is bound to give reasoned decisions in all cases to
which that provision applies. But in the absence of statutory
requirement, the Courts have been emphatic to advise judicial
or quasi-judicial bodies to assign reasons in such a form as to
justify the orders being called what are described as speaking
orders. A speaking order means an order which speaks by itself.
Q. 60. What do you mean by Henry VIII Clause or removal of
difficulties. Ans. Henry VIII Clause or Removal of Difficulties
When the legislature passes an Act, it cannot foresee all the
difficulties, which may arise in implementing it. Legislature,
therefore, introduces in the statute a "removal of difficulty"
clause envisaging that government may remove any difficulty
that may arise in putting the law into operation. Generally two
types of "removal of difficulties" clauses are found in the Indian
statutes. One, a narrow one which empowers the executive to
exercise the power to remove difficulties consistent with the
provisions of the enabling Act.
Meaning of Hire and Fire RuleIn West Bengal State Electricity
Board Vs. Desh Bandhu Ghosh, Regulation 34 of West Bengal
State Electricity Regulations was challenged on the ground that
it was arbitrary and violative of Art. 14. Under Regulation 34, it
was provided : "In case of a permanent employee, his services
may be terminated by serving three month's notice or on
payment of salary for the corresponding period in lieu thereof."
Declaring the said Regulation as arbitrary and ultra vires,
Supreme Court said on the face of it, the regulation is totally
arbitray confers on the Board a power which is capable of
32

vicious discrimination. It is a naked 'hire and fire' rule, the time


for banishing which altogether from employer-employee
relationship is fast approaching."
Q. 61. What do you mean by Sub-delegation?.
Ans. Meaning and Definition of Sub-delegationWhen a statute
confers legislative powers on an administrative authority and
that authority further delegates those powers to another
subordinate authority or agency, it is called sub-delegation.
Thus, what happens in sub-delegation is that a delegate further
delegates. This process of sub-delegation may go through one
stage to another stage. If enabling Act is called the 'Parent' and
the delegated and sub-delegated legislation the 'Children', the
'Parent' in his own life time may beget descendants upto four or
five degrees.
Q. 62. What are the different modes of judicial control of
Administrative Action? Ans, The mechanism of judicial control
of administrative action falls into three distinct groups : (i)
Special Leave Petition, U/Art. 136 (ii) Supervisory jurisdiction of
High Court under Art. 227. (iii) Extraordinary remedies and
ordinary remedies. Q. 63. What do you mean by special leave
petition?.
Ans. Art. 136 lays down that the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or
matter passed or made by any Court or Tribunal, except any
Court or Tribunal constituted by or under any law relating to the
Armed Forces. Since the Supreme court has been invested with
a plenary jurisdiction to hear appeals against the deicisions of
33

Administrative Tribunals and other adjudicating agencies, it is


now regarded as an important mode of judicial review of
administrative adjudications.
Q. 64. What is the supervisory jurisdiction of High Courts
U/Art. 227 of the Indian Constitution?.
Ans. Supervisory JurisdictionThe power of judicial review
which has been conferred on all the High Courts under Art. 227
is supervisory in nature. Art. 227 provides that every High Court
shall have superintendence over all Courts and tribunals
throughout the territories in relation to which it exercises
jurisdiction. This supervisory power is both judicial and
administrative in nature.
Q. 65. Wha( are the grounds on which supervisory power of
High Court is exercised?.
Ans. Grounds Tor the Exercise or Supervisory JuisdictionThese
are (i) Want or excess of jurisdiction, (ii) Failure to exercise
jurisdiction, (iii) Violation of principles of natural justice, (iv)
Error of law apparent on the face of record.
Q. 66. What are the extra-ordinary and ordinary remedies for
exercising judicial control over administrative action?.
Ans. For controlling administrative action Supreme Court and
High Court can issue the writs of habeas corpus, certiorari,
prohibition, mandamus and quo-warranto. In addition to this.
Courts provide ordinary remedies also under several statutes
e.g., declaration, injunction, damages etc.
Q. 67. What do you mean by "Judicial Review"?.
34

Ans. Judicial Review means supremacy of law. It seeks to ensure


that administrative actions are taken according to law. In Tata
Cellular Vs. Union of India the Supreme Court laid down that
judicial review is concerned with reviewing not the merits of
decision but the decision-making process itself. Thus judicial
review is different from appeal. While hearing an appeal the
court is concerned with the merits of the decision but in judicial
review the court is basically concerned with the decisionmaking process because even otherwise the court is hardly
equipped to review the merits of the decision. Q. 68. Name
the principles for the exercise of writ jurisdiction under Art. 226.
Ans. These are (i) Delay and Laches, (ii) Existence of Alternative
Remedy, (iii) Res-judicata, (iv) Anticipatory Relief, (v) High court
to be approached first, and (vi) Remedial measures.
Q. 69. Against whom writ can be issued?.
Ans. Writs are public law remedies. Accordingly, a writ will lie
against the State and statutory bodies and persons charged
with public duties. Although private persons are not immune
from writ jurisdiction, issuance of a writ to them would require
exceptional circumstances. The eternal principle of democratic
government is "The governing power wherever located must be
subject to the Fundamental Constitutional limitations.
Q. 70. What do you mean by State?.
Ans. Definition of StateAccording to Art. 12, "In this part,
unless the context otherwise requires, 'the State' includes the
Government and Parliament of India and the Government and
Legislature of each of the States and all local or other
authorities within the territory of India or under the control of
35

the Government of India". Thus, the definition is inclusive and it


includes following : (i) The Government and Parliament of India,
(ii) The Government and the Legislature of each of the States,
(iii) AH local or other authorities within the territory of India, (vi)
All local or other authorities under the control of the
Government of India.
Q. 71. What do you mean by "Other Authorities"?.
Ans. The expression 'other authorities' is wide enough to
include within it every authority created by a statute and
functioning within the territory of India or under the control of
the Government of India, and we do not see any reason to
narrow down this meaning in the context in which the words
'other authorities' are used in Art.12 of the Constitution".

Q. 72. Who may apply for a writ petition or what is Locus


Standi?. Ans. There is no provision in the Constitution
prescribing persons or classes of persons who may seek writs
for redressal of their grievances against the administration. In
this connection there are two views : (i) Traditional ViewThe
traditional view has been that a petition could only be
maintained by such a petitioner who has himself suffered
infraction of1 his rights and is a "person aggrieved-', (ii)
Progressive TrendThere is progressive trend moving in the
direction of liberalising the law relating to standing. These
standings are : (a) Class standing, (b) "Public injuries" standing,
(c) Public duties standing, (d) "Public concern standing.
Q. 73. What do you mean by Doctrine of Public
36

Accountability?.
Ans.
Public
AccountabilityPublic
accountability is an emerging doctrine of administrative law.
The underlying purpose of this doctrine is to check growing
misuse of public power by the administration and to ensure
speedy relief to the victims affected by such exercise of power.
The doctrine of public accountability is based on the assumption
that the power vested in administration authorities is a public
trust which must be exercised for the welfare of the people
Accordingly the trustee (public authority) who enriches himself
by corrupt means holds the property acquired by him as a
constructive trustee.
Q. 74. What do you mean by Prerogative writs in Particular?.
Ans. Prerogative Writs in ParticularThe five writs specifically
mentioned U/ Art. 32 and 226 are known in English Law as
prerogative writs, for they had originated in the King's
prerogative power of superintendence over the due observance
of law by his officers and tribunals. The prerogative writs are
extra-ordinary remedies intended to be applied in exceptional
cases in which ordinary legal remedies are not adequate. Thus,
the Supreme Court and High Courts have power to grant the
remedy of the nature obtainable in the Court of King's Bench in
England by means of the prerogative writs. Q. 75. What do you
mean by the writ of Habeas Corpus?. Ans. The Latin phrase
'habeas corpys' means 'have the body'. However, recent
development of law indicates thai in writ of habeas corpus the
production of the body of the person alleged to be unlawfully
detained is not essential. In Kanu Sanyal Vs. D.M., A.I.R. 1973
S.C. 2624. Bhagwati, J. held that the production of the body of
the person alleged to be wrongfully detained is ancillary to the
37

main purpose of the writ in securing the liberty of the subject


illegally detained.

Q. 76. What is the object of the writ of Habeas Corpus?.


Ans. Object of Writ of Habeas CorpusThe object of the writ of
habeas corpus is not to punish the detaining authority but
release a person from illegal detention. "The question for a
habeas corpus writ is whether the subject is lawfully detained. If
he is, the writ cannot issue, if he is not, it must issue.
Q. 77. What are the grounds of issue of Habeas Corpus?.
Ans. Grounds of Issue of Heabeas CorpusThe traditional
function of the writ of habeas corpus has been to get the
release of a person wrongfully or unlawfully detained or
arrested. However, according to the new trend. The Court has
allowed the use of the writ for protecting the various personal
liberties which are guaranteed to the arrested persons or
prisoners under the law and the Constitution. The decision of
the Supreme Court in Mancka Gandhi Vs. Union of India AIR
1978 S.C. 597. has electrified the whole concept of liberty by
holding that 'procedure established by law" in Art. 21 means
"fair and reasonable" procedure. Accordingly, a writ of habeas
corpus would lie if the law which deprives a person of his liberty
is not fair and just.
Q. 78. What is the nature and scope of writ of certiorari?. Ans.
Nature and Scope of CertiorariIt is a Latin word which means
to "certify". Certiorari may be defined as a judicial order issued
38

by the Supreme Court under Art. 32 or by a High Court under


Art. 226 of the Constitution to an inferior Court or any authority
exercising judicial, quasi-judicial, Qr administrative functions to
transmit to the Court the records of proceedings pending
therein for scrutiny and, decide the legality and validity of the
orders passed by them. If the decision is bad it is quashed.
Q. 79. What are the grounds on which writ of Certiorari may
be issued? Ans. Grounds of Issuing CertiorariThese are : (i)
Error of jurisdiction, (ii) Abuse of jurisdiction, (iii) Jurisdictional
facts, (iv) Error of law apparent on the face of record, (v)
Violation of the principles of natural justice.
Q. 80. What is the nature and scope of the writ of
Prohibition?. Ans. Nature and Scope of the Writ of
ProhibitionA writ of prohibition is a judicial order. It can be
issued to a judicial or quasi-judicial authority, when such
authority exceeds its jurisdiction or tries to excercise jurisdiction
not vested in it. With the expanding dimensions of natural
justice, and the requirement of fairness in administrative
functions, the rigidity about prohibition has been liberalised.
This writ can now lie to anybody, irrespective of the nature of
function exercised by it, if any of the grounds on which the writ
of certiorari is issued is present.
Q. 81. What are the grounds on which writ of Prohibition may
be issued?. Ans. Grounds of Issuing Writ of ProhibitionThese
are (i) Absence or Excess of jurisdiction, (ii) Violation of the
principles of natural justice, (iii) Unconstitutionality of a statute,
and (iv) Infraction of fundamental rights.
39

Q. 82. What is the main difference between a writ of


Prohibition and Certiorari? Ans. Difference between the writ of
Prohibitan and CertiorariAlthough boih writs are issued
against judicial or quasi-judicial body or any other 'authority'
having duty to act judicially but cannot be available against a
'purely administrative' authority. Both these writs have
common object, namely, restraining the inferior Courts and
tribunals from exceeding their jurisdiction. But there is
fundamental distinction between the two writs. They are issued
at different stages of proceedings. Broadly speaking a writ of
prohibition will lie when the proceedings are pending and a writ
of certiorari for quashing after they have terminated in a final
decision.
Q. 83. What is the nature and scope of Mandamus?.
Ans. Nature and Scope of MandamusAccording to Markose :
Mandamus is a judicial remedy which is in the form of an order
from a superior Court (the Supreme Court or a High Court) to
any Government, Court, Corporation or public authority to do
or forbear from doing some specific act which that body is
obliged under law to do or refrain from doing, as the case may
be, and which is in the nature of a public duty and in certain
cases of a statutory duty.
Q. H t VVIiul art' lln grounds mi the luisls ill which Mandamus
can be issued?.
Ans. Mandamus . in In istuiil on all those grounds on which
certiorari and prohibition can l><' issued to linn ol jurisdiction,
(a) Lack of jurisdiction, (b) Excess of jurisdiction, (ii)
40

Jutisdictional facts, (iii) Violation of the principles of natural


justice, (iv) Krror ol law apparent on the face of record, (v)
Abuse of jurisdiction.
Q. 85. Willit is the nature and Scope of the Writ of Quowarranto?.
Ans. Nature mid Scopc of Writ of Quo-warranto'Quowarranto' means 'what is your authority' The writ of quo
warranto is a judicial order against an occupier or usurper of an
independent substantive public office or franchise or liberty to
show 'by what authority' he is in such office, franchise or liberty.
If the answer of the usurper is not to the satisfaction of the
Court, the writ of quo-warranto can be issued to oust him.
Q. 86. What arc the grounds on the basis of which writ of Ouowarranto may be issued?.
Ans. Grounds of Issuing Ouo-warrantoThese are : (i) illegally
holding of Public office, (ii) Public office to be substantive in
nature, and (iii) Holder to be in occupation of office.
Q. 87. What do you mean by Public Interest Litigation?.
Ans. The expression, 'public interest litigation' means a legal
action initiated in a court of law for the enforcement of public
interest or general interest in which the public or class of
community have pecuniary interest. The Supreme Court and
High Courts have widely enlarged the scope of PIL by relaxing
and liberalising the rule of standing by treating petitions and
'letters' not only by the persbns or person who can be said to be
'aggrieved' or 'adversely' affected in tiie strict sense of the term
by the action or omission by the respondents but acting Pro
41

Bono Publico.
Q. 88. How far Govt, is liable vicariously for the torts
committed by its servants? Ans. Doctrine of Vicarious
LiabilityState is not a living entity but a legal entity which
cannot function without human agency. It is, therefore, that
State has to act through its servants. Tortious liability of the
State is really the liability of the State for the tortious acts of its
servants. The concept of tortious liability of State refers to a
situation when the State can be held vicariously liable lor the
wrongs committed by its servants.
Q. 89. Whether judicial review of Administrative action
through injunction is possible?.
Ans. Judicial Review of administrative discretion through
injunctionInjunction is an effective method of judicial control
of administrative discretion Thus, where the administrative
authority has either not exercised its discretion at all or has
exercised it at the instance of some other body, or its exercise is
arbitrary or has been exercised On extraneous considerations or
for an improper purpose or if its exercise is malafide, injunctin
would be issued in such circumstances.
Q. 90. What do you mean by declaration?.
Ans. DeclarationIn a declaratory action, the rights of the
parties are determined without adding further relief. The
essence of a declaratory judgement is that it states the rights or
legal position of the parties as they stand, withou altering them
in any way though it may be supplemented by other remedies
in suitable cases. A declaratory judgement by itself merely
42

states some existing legal situatin. It requires no one to do


anything and to disregard it will not amount to contempt of
Court.
Q. 91. What is an action or suit for damages?.
Ans. A person wronged by administrative action can challenge
its validity in actin for damages by filing a suit in the civil Court
of first instance where the procedure is regulated by the Civil
Procedure Code. The requirement of two months notice is
mandatory under Section 80 before filling the suit, unless it is
waived by the Court in special circumstances.
Q. 92. Whether social action or P.I.L. may be filed for the
enforcement of public duty?.
Ans. The Supreme Court has come to hold that where there has
been a breach of a public duty causing injury to the general
public, any person who is not merely a busy body, would be
allowed to bring action to seek enforcement of such public
duty. In Ratlam Municipality Vs. Vardi Chand S.133 of Criminal
Procedure Code, which authorises a Magistrate on receiving the
report of Police Officer or other information to make an order
for remedying public nuisance was invoked by one of the
residents of a lcality against the municipality for failure to carry
out the duty of constructing a drain pipe. The magistrate
ordered the municipality to abate the nuisance within 15 days.
The municipality decided to challenge the magistrate's order
and ultimately the case reached the Supreme Court.
Municipality pleaded insufficiency of funds. Turning down the
plea of lack of funds with the municipality, the Supreme Court
directed teh municipality to follow a time bound programme
43

laid down by it for the purpose.


Q. 93. What do you mean by Ombudsman?.
Ans. Meaning of OmbudsmanOmbudsman means "the
grievance man" or "a Commissioner of the Administration". A
precise definition of Ombudsman cannot be given But garner
rightly states that he is "an Officer of Parliament, having as his
primary function, the duty of acting as an agent for Parliament,
for the purpose of safeguarding citizens against abuse or misuse
of administrative power by the executive".
Q. 94. What are the basic characteristics of Ombudsman?.
And. According to Prof. S.K. Agrawal, the term 'Ombudsman'
refers or.ly to institutions which have three basic and unique
characteristics : (i) Ombudsman is an independent and nonpartisan officer of the legislature who supervises the
administration, (ii) He deals with specific complaints from the
public against administrative injustice and mal-administration,
(iii) He has the power to investigate, criticize and report back to
the legislature, out not to reverse administrative action.

Q. 95. What do you mean by Ombudsman in India or Lokpal?.


Ans. Generally a good administration is responsible and
responsive to the people. With this object in view the institution
of Ombudsman came to be established in several Democratic
Countries for redressing the grievances of the public against
Administrative faults. India is also a Democratic country.
Therefore, close supervision over the administration, and.
mechanism for redressal of grievances became essential and
44

necessary. In India, the creation of the institution of Lokpal


similar to that of the Ombudsman was recommended by the
Interim Report of Administrative Reforms Commission for the
rcdrenal of citizens grievences. The Lokpal is empowered to
investigate into any administrative action taken by or with the
approval of a Minister or Secretary of Union or State
Government, either on receiving a written complaint by an
aggrieved person or suo motu, relating to maladministration,
undue favour or corruption. But the Lokpal is not to undertake
investigation in respect of which the aggrieved person has any
remedy before a Court of law or statutory Tribunal. A person
aggrieved by administrative fault shall make complaint to teh
Lokpal. Investigation shall be conducted in private and the
Minister or Secretary against whom maladministration is
alleged shall have an opportunity to comment on the
allegations so made The Lokpal shall have the power of a Civil
Court fo the purpose of summoning witnesses etc. for securing
evidence.
Q. 96. What do you mean by the Lokpal Bill, 1998?.
Ans. Lokpal Bill, 1998The Lokpal Bill, 1998 was introduced by
the Prime Minister Atal Behari Vajpayee on August 3, 1998 in
Lok Sabha.
Evaluation-One of the recommendations of the Commission
regarding the institution of Lokpal deserves special comment.
According to the recommendation of the Commission, the
proceedings before the Lok-pal shall "not be subject to judicial
interference". Thus, clause 13 of the Draft Bill appended with
Interim Report says : "No suit, prosecution, or other proceeding
shall lie against the Lokpal or any of his officers in respect of
45

anything which is in good faith done or intended to be done


under the Act." This provision seeks to make the Lokpal immune
from judicial control. However, it may be pointed out that this
provision may exclude the jurisdiction of inferior Court only but
not the jurisdiction of High Courts under Arts. 226-227 or of the
Supreme Court under Articles 32, 136, unless the Constitutin is
amended to that effect. A
Q. 97. What is the position of Lokayukta in States?.
Ans. While the idea of establishing the institution of Lokpal at
the Centre has proved abortive, a number of States have
adopted the Ombudsman system by enacting Lokyukta Laws,
e.g., Uttar Pradesh Lokayukta and Uplokayukta Act, 1975,
Madhya Pradesh Lokayukt evam Uplokayukt Adhiniyam, 1981,
Orissa Lokpal and Lokayuktas Act, 1970, Kerala Public Men
(Prevention of Corruption) Act, 1983. Himanchal Pradesh
Lokayukta Act. 1983, Karnataka Lokayukta Act, 1984. Gujarat
Lokpal and Lokayukta Act, 1975, Bihar Lokayukta Act, 1973.
Maharashtra Lokayukta and Up-Lokayuktas Act, 197.1, A.P.
Lokayukta and Up-Lokayuktas Act, 1983, Karnataka Lokayukta
Act, 1984.
Q. 98. What is Central Vigiiance Commission 7
Ans. People require incorruptibility in the administration of
government departments. It was against this backdrop that the
establishment of the Central Vigilance Commission (CVC) was
recommended by the Committee'on Prevention of Corruption
the Santhanam Committee. The Committee known after the
name of its Chairman was appointed in 1962. If recommended
for the establishment of a Central Vigilance Commission as the
46

highest authority. The recommendations of the Santhanam


Committee were accepted by the government and thus the
Central Vigiiance Commission was created if February, 1964 by
a resolution of the Government of India.
Q. 99. \\ li.ii me die functions of the Central Vigilance
Commission?.
Ans 1 In- Commission advises as to the necessity of action to be
taken in the following cases (I) Reports of investigation by the
CBI involving departmental action or prosecution in cases either
referred lo it by the Commission or otherwise, (ii) Reports of
investigation by the Ministry or department involving
disciplinary action in cases either referred by the Commission or
otherwise, (iii) Cases received direct from Public Sector
Undertakings and statutory Corporations, etc. The Commission
is given power to require that oral inquiry in any departmental
proceeding should be interested to one of the Commissioners
for departmental inquiries.
Q. 100. What is public undertaking?.
Ans. When trading or social service functions are carried on by
the government through a Public Corporation, a government
department or a government company, it is called a Public
Undertaking, e.g., Railway Department, State Trading
Corporation, State Electricity Board. Structurally, public
undertakings can be classified into three broad categories: (i)
Public Corporation, (ii) Departmental Undertakings, and (iii)
Government Companies. Q. 101. Define a Public Corporation?.
Ans. Definition of Public CorporationAccording to Garner, "A
public Corporation is a legal entity established normally by
47

Parliament and always under legal authority, usually in the form


of a special statute charged with the duty of carrying out
specified governmental functions in the national interest, those
functions being confined to a comparatively restricted field, and
subjected to control by the Executive, while the Corporation
remains juristically an independent entity not directly
responsible to Parliament."
Q. 102. What is the difference between a Public Corporation
and a Public Undertaking?.
Ans. Distinction between a Public Corporation and Public
Undertaking (i) A
Public Corporation is established under "Law" as an
autonomous body and is often free from Governmental control
whereas departmental undertaking or a Govt. Company is fully
under the control of Govt.; (ii) Since a Public Corporation or
govt. Company is a separate and distinct legal entity from the
Govt., its employees are not Govt, servant and as such they
cannot claim the protection of Art. 311 whereas if the
undertaking is not an independent staturory body but merely
limb of the Govt., its employees would be Govt, employees and
as such can claim protection of Art. 311; (iii) Where an
undertaking is created by a statute, it is known as Public
Corporation whereas Govt, companies are nonstatutory Public
undertaking registered under the companies Act, 1956, They
are limited liability companies where the Govt, holds the
majority share capital, (iv) Public Corporation are created and
owned by the state, so Parliament exercises cantrol over these
corporations whereas in case of non-statutory or Departmental
Public undertakings Govt, itself exercises control over their
48

activities.
Q. 103. In what groups a Public Corporation may be classified?.
Ans. Functionally, public Corporations may be classified into
four 'ill-assorted' groups : (i) Commercial Corporations, (ii)
Development Corporation, (iii) Social Services Corporation, and
(iv) Financial Corporation.
Q. 104. How Parliamentary control is exercised over Public
Corporations?.
Ans. Parliament exercises control on Public Corporation in the
following ways : Viz; (i) Constituent StatuteThe powers to be
exercised by such Corporations can be defined by the statutes.
If powers are abused or misused by any Corporation, the
Parliament or the State Legislature can supersede or even
abolish the daid Corporation, (ii) Questions Through this
technique, members of Parliament can discuss the functioning
of Corporations by putting questions to the Minister concerned.
In this way, the Parliament ensures accountability of the
Corporations, (iii) DebatesA much more significant and
effective method of control is furnighed by a debate on the
affairs of a public Corporation, (iv) Parliamentary Committees
The functions of the Committee are : (a) to examine the reports
and occounts of the public undertakings, (b) to examine the
reports, if any, of the Comptroller and Auditor General on the
public Corporations, (c) to examine in the context of the
autonomy and efficiency of the public Corporations whether
their affairs are being managed in accordance with sound
business principles and prudent commercial practices.
49

Q. 105. How judicial control is exercised over Public


Corporation?.
Ans. (i) Traditional ViewThe traditional theory has, been that,
as a public Corporation is created by a statute, it must exercise
its power within the four comers of the constituent statute.
Therefore, if a Corporation exceeds its authority, the action may
be declared ultra vires by the Court, (ii) Modern viewBeing a
creation of State, a public Corporation must be subject to the
same constitutional limitations as the State itself. Moreover,
statutory Corporations and government Companies are held to
be 'other authorities' and as such 'State' within the meaning of
Article 12 of the Constitution.
Q. 106. How Central Administrative Tribunal is established?.
Ans. The Administrative Tribunals which are to be established
under the Administrative Tribunals Act, 1985 may be classified
into three categories : (i) Central Administrative Tribunal, (ii)
State Administrative Tribunal, and (iii) Joint Administrative
Tribunal. All the three kinds of administrative tribunals are to be
constituted by the Central Government by notification. Each of
the Administrative Tribunals is to consist of a Chairman, a
number of Vice-Chairmen, Judicial members and administrative
members. The Chairman, Vice-Chairman and other jucicial
members as well as administrative members are to be
appointed by the President of India.
Q. 107. What are the powers and functions of Central
Administrative Tribunal (C.A.T.)?.
Ans. The Central Administrative Tribunal is to take cognizance of
service matters relating to All India Service or to any Civil
50

Service or Civil Post under the Centre, or to a post connected


with defence or in defence services to which a civilian is
appointed. Besides, service matters in any authority,
corporation or society owned or controlled by the Government
of India can also be placed under the jurisdiction of the
Tribunal. Q. 108. What procedure is to be followed by the
Administrative Tribunal?. Ans. Procedure of Administrative
TribunalsOn receipt of application if after investigation the
Tribunal is satisfied that the application is fit for adjudication or
consideration, it will accept the application. However, if the
Tribunal is not so satisfied, it will reject the application after
recording reasons.
The Tribunal is not bound to follow the procedure prescribed by
the C.P.C. 1908. While functioning under the provisions of
Administrative Tribunals Act and Rules framed by the Central
Government, it has power to regulate its own procedure.
Procedural rules cannot be contrary to natural justice. The
Tribunal has all the powers of a Civil Court in respect of calling a
person, administering oath, compelling discovery and
production of documents, issuing commissions, reviewing its
decision etc. As regards contempt, the Tribunal has the same
jurisdiction as has the High Court. It can exercise its powers in
this respect as the High Court exercises.
Q. 109. What do you mean by the Administrative Agencies?.
Ans. According to Davis, "An administrative agency is a
governmental authority, other than a Court nd other than a
legislative body, which affects the rights of private parties
through either adjudication or rule-making". He further says
that, "an administrative agency may be called a commission,
51

board, authority, bureau, office, officer, administrator,


corporation, administration, division Or agency. When
administrative agency exercises the power of adjudication, it is
tribunal. For example, all the domestic tribunals are
administrative agency. Accordingly, Custodian-General of
Evacuee Property, Central Board of Revenue etc. have been
held to be tribunal.
Q. 110. Explain the Judicial powers of Administrative Tribunal.
Ans. The doctrine of judicial review is part'of the basic structure
of the Constitution and as such it cannot be excluded even by
constitutional amendment. The validity of the Administrative
Tribunals, Act 1985 was challenged on the ground that it seeks
to exclude the doctrine of judicial review. S. 28 of the Act has
excluded the power of judicial review exercised by the High
Courts in service matters under Articles 226 and 227 of the
Constitution. However, it has not excluded the judicial review
entirely in as much as the jurisdiction of the Supreme Court
under Articles 32 and 136 has kept intact.
Q. 111. What do you mean by Doctrine of Pleasure?.
Ans. Doctrine of PleasureIt is provided under CI. (I) of Art. 310
that except as provided by this constitution, every person who
is a member of defence service or of a civil service of the union
or of an All India Service or holds any post connected with
defence or any civil post under the union, holds office during
the pleasure of the president, and every person who is a
member of a civil service of a state or holds any civil post under
a state holds office during the pleasure of the Government of
the State. The origin of this doctrine of 'pleasure' lies in the
52

service jurisprudence of the England. In England the servant of


crown holds office during the pleasure of the crown. Such
doctrine connotes that the service of the servant can be
terminated at any time without assigning any reason. The
foundatin stone of this doctrine is "public policy" that public
servant whose continuance in office is not or is against the
public interest must be relieved of it.
The doctrine of pleasure has been justified by the Supreme
Court of India, on the ground of public policy, public interest
and public goods in so far as insufficient, dishonest or corrupt
persons, or those who have become a security risk should not
continue in service. ,
Q. 112. What restrictions are placed on the Doctrine of
Pleasure?. Ans. Restrictions on the Doctrine of Pleasure(i) The
service contract entered between the civil servant and the
government may be enforced, (ii) A number of .............. il ii: in
............I mull i ill. constitution arc restrictions on the pleasure
.............. III. ii ......In. iliii'tnnc cannot be resorted too freely and
unfairly, Arts. 14, l *. mil K. n| iii. < mi. l I ii i in ii imposed
limitations on free exercise of pleasure doctrine. \il II. luluiilics
the principle of reasonableness. The principle of reasonableness
is anti-llu-'.i'. hi .iibitrminess (iii) Under the constitution the
tenure of judges of the High Courts .mil Supii iiie Court of the
comptroller and Auditor-General of India, of the Chief Election
commissioner and the Chairman and Members of Public Service
Commission, is not at the pleasure of the government.
Q. 113. What safeguards are available to the civil servants
under Art. 311?. Ans. Main Safeguards Available to Civil
53

ServantsThese are (i) No removal by subordinate authority


The first constitutional safeguard is that no member of a civil
service or holding a civil post can be dismissed or removed by
any authority subordinate to the authority by which he was
appointed, (ii) Right to reasonable opportunityThe second
safeguard which the constitution guarantees to a civil servant is
that he shall not be dismissed or removed or reduced in rank
except after an inquiry in which he has been informed of the
charges against him and given a reasonable opportunity of
being heard in respect of those charges.
Q. 114. What is the extent of the protection of Art. 311?.
Ans. Extent of the ProtectionConstitutional protection under
Art. 311 is available only in case of dismissal, reduction in rank
or removal by way of penalty. Art. 311 (1) applies 10 the case of
dismissal or removal whereas Art. 311 (2) applies to the case of
dismissal, removal or reduction in rank. In this way the scope of
Art. 311 (1) is narrower than that of Art. 311 (2), inasmuch as
reduction in rank comes in the range of Art. 311 (2) but it falls
outside the coverage of Art. 311 (1). Owing to judicial decisions
these terms have assumed technical importance.
Q. 115. What are the exceptions regarding the giving notice for
reasonable opportunity or exclusion of principles of Natural
Justice?.
Ans. It is to be noted that the exceptions have been made with
respect to constitutional safeguards under Art. 311 (2) itself.
The position is that even where a civil servant is removed,
dismissed or reduction in rank by way of punishment. Art. 311
(2) lays down that there shall be no need of inquiry or giving
54

notice(i)Where a person is dismissed or removed or reduced


in rank on the ground of conduct which has led to his
connection on a criminal charge, or (ii) Where the authority
empowered to dismiss or remove a person or to reduce him in
rank is satisfied that for some reason to be recorded by that
authority in writing, it is not reasonably practicable to hold such
inquiry, or (iii) Where the President or the Governor as the case
may be, is satisfied that in the interest of the security of the
state it is not expedient to hold such inquiry. Accordingly it was
held that in all related cases .the punishment ^warded by the
disciplinary authority without inquiry and without giving
reasonable-opportunity to hear was constitutional.
Q. 116. What do you mean by Post-decisior.al hearing?.
Ans. The doctrine of post-decisional hearing was propounded by
the Supreme Court in Meneka Gandhi Vs. Union of India. In this
case, the Supreme Court laid down the principle that if the
'public interest' immediate action was indispensable and it is
impracticable to afford a hearing before the decision, it should
be afforded after the decision.
Q. 117. Whether Doctrine of Res-judicata applies to Writ
Petions U/Art. 226 and 32 or not?.
Ans. The doctrine of res-judicata which is founded on public
policy applies in the area of writ jurisdiction as well. If a writ
petition has been considered and dismissed, the same petition
on the same ground cannot be filed in the same Court again. It
has been settled since long that there is no good ground to
preclude decisions in matters in controversy in writ proceedings
under Art. 32 or 226 of the Constitution from operating as res55

judicata in subsequent petition.


Q. 118. Whether the Doctrine of Res-judicata also applies to
the writ of Habeas Corpus or not?.
Ans. Habeas CorpusEnglish as well as American. Courts have
laid down (hat the principle of res-judicata is not applicable to a
writ of habeas corpus. In India also, the doctrine of constructive
res-judicata between Art. 226 and 32 petitions is not made
applicable in case of writ petitions. Thus, it has been established
that the principle of Constructive res-judicata is not applicable
to a petition for a writ of habeas corpus under Art. 32, although
the writ on the same grounds has been dismissed by the High
Court. Therefore, a petitioner whose wiit petition for habeas
corpus has been dismissed by the High Court under Art. 226 can
file a writ in the Supreme Court on the same facts.

56

LONG ANSWERS
Q. 1(a). What do you mean by Administrative Law? Explain its
definition, nature and scope.
(b) What is the difference between Administrative Law and
Constitutional Law?
(c) What are the causes for the growth or reasons of the
importance of Administrative Law?
Ans. (a). Meaning of Administrative Law-Administrative law is a
branch of public law, which deals with the structure, powers
and functions of the organs of administration; the limits of their
powers and the methods, by which their powers are controlled,
including the legal remedies available against them.
Definition of Administrative Law-Theterm 'administrative law'
has been defined by the different jurists in a different manner1. According to Dicey, "Administrative law is that portion of a
nation's legal system which determines the legal status and
liabilities of all state officials, which defines the rights and
liabilities of private individuals in their dealings with public
officials, and which specifies the procedure by which those
rights and liabilities are enforced."
It may be noted that Dicey's definition of Administrative law is
based on French Droit Administratis This definition is too
narrow in so far as it excludes from consideration many
57

administrative authorities which cannot be said to be officials


such as public corporations and public undertakings. It also
excludes procedures of administrative authorities or their
various powers and functions or other control such as
parliamentary control.
2. According to Jennings, "Administrative law is the law
relating to' the administration. It determines the organisation,
powers and duties of administrative authorities:"
The modern British approach to administrative law is depicted
by this definition. This'is the most commonly accepted view. But
Griffith and Street point out two difficulties of this approach(i) It does not distinguish administrative law from
constitutional law, which in its usual meaning has a great deal
to say concerning the organisation of administrative authorities.
(ii) This is very wide definition, for the law which determines
the powers of administrative authorities must include the
substantive aspects of such powers, for example, legislations
relating to public health, housing.
I liili|iic,
(own .in.l i .Minii, ........in in.I iln (u isonal health services. But
these matters
ait' mil mi In.I. i niiliin iln scope and ambit of administrative law.
n. i.i . these, it does not include the remedies available to an ii ,
n. vnl person when his rights are adversely affected by the
action of the adminstration.
58

3. According to Wade and Philips, "Administrative law is a


branch of public law which is concerned with the composition,
powers, duties, rights and liabilities, of the various organs of
government which are engaged in administration."
4. According to Wade, "Administrative Law is the law relating
to the control of governmental power."Wade is of the opinion
that the primary object of administrative law is to keep the
powers of the government within their legal bounds, so as to
protect the citizens against their abuse. His definition stresses
upon the object of administrative law by touching the heart of
the subject. It does not, however, define the subject.
Further, it also does not deal with the powers and duties of
administrative authorities nor with the procedure required to
be followed by them.
5. According to K.C. Davis, "Administrative Law is the law
concerning the powers and procedures of administrative
agencies, including especially the law governing judicial review
of administrative action."
This definition of American approach seems to be proper as it
puts emphasis on the procedure followed by the administrative
agencies in exercising their powers. In this definition, Davis
includes administrative rule making and rule adjudiciation but
excludes rule application which in his view belongs to the
domain of public administration. Another difficulty with this
definition is that it puts emphasis on the control of
administrative functions by the judiciary, but excludes from
study other equally important controls, e.g., the parliamentary
control of delegated legislation, control through administrative
59

appeals and revisions and the like. From his control mechanism
is also excluded the vast area of administrative action which is
neither quasi-legislative nor quasi-judicative.
\
6. According to Jain and Jain, "Administrative Law deals with
the structure,powers and functions of the organs of
administration, the limits of their powers, the methods and
procedures followed by them in exercising their powers and
functions, the methods by which their powers are controlled
including the legal remedies available to a person against them
when his rights are infringed by their operation.
The above definition covers four aspects of administrative law.
Firstly, it deals with the composition and the powers of
administrative authorities. Secondly, it fixes the limits of the
powers of such administrative authorities. Thirdly, it prescribes
the procedure to be followed by these authorities in exercising
such powers. And fourthly, it controls these administrative
authorities through judicial and other means.
Although, various attempts have been made by the different
jurists to define administrative law, its nature, scope and
contents, yet none is right or wrong in absolute sense. In fact, it
is not possible to evolve a comprehensive, precise and
satisfactory definition of administrative law so as to demarcate
clearly its nature, scope and contents. There are many
formulations but either they are too broad and include much
more than necessary or they are too narrow and do not include
all its essentials.
Nature and Scope of Administrative Law-According to Freund,
60

"The main problem of administrative law relates to the nature


and operation of official powers (permits and orders, ministerial
and discretionary, scope and legitimacy of underlying
conditions) the formal procedural conditions for the exercise of
powers, official and communal liability, the specific remedies
for the judicial control of administrative action (legal, equitable
and statutory) jurisdictional limitations of powers and questions
of administrative finality."
Thus, administrative law can precisely be said to be a study of
multifarious powers of administrative authorities and their
control. The Nature of powers exercisable by the administrative
authorities can be studied under the following three heads1. Legislative or Rule-making.
2. Judicial or Adjudicative.
3. Purely Executive.
Actually, administrative law is mainly concerned with the
control over the exercise of the above powers by the
administrative authorities. Prof. Wade has rightly observed,
"The organisation, the methods, the powers (whether styled
administrative, legislative or judicial) and the control by judicial
authority of all public authorities is the ambit of administrative
law in U.K. He further said, "As a second approximation in a
definition, administrative law may be said to be a body of
general principles which govern the exercise of powers and
duties by public authorities. This is only one part of the mass of
laws to which public authorities are subject". All the detailed
law about their composition and structure though in a sense
related to administrative law lies beyond the proper scope of
61

the subject.
It may be noted that the scope of administrative law in India is
very much similar to that of United States. In fact, the problem
before us is to prevent the potential threat to justice and
encroachment on our freedom. Administrative law
comprehensively deals with the ways and means to keep the
multifarious powers of administrative authorities under control.
It intends to prevent the growth of an autocratic rule by
administrative authorites. It provides for the safeguards against
what Lord Hewart has described as "New Despotism." Prof.
Griffith and Street have rightly pointed out in this connection
that the operation and control of administrative authorities
being the chief purpose of administrative law, if deals with the
following enquiries(i) What sort of powers does the administration exercise?
(ii) What procedures do the administrative authorities follow in
the exercise of the powers of the administration?
(iii) What are the limits on the powers of the administration?
(iv) What are the ways in which the administration is kept
within those limitations? and
(v) What remedies are available to the individual against the
illegal actions of the administration?
Thus, we can say that the administrative law is primarily
concerned with the judicial control of administrative powers.
The rules of judicial control are generally derived from some
basic principles of constitutional law, rule of law and the
principles of natural justice.
In short, it can be concluded that the administrative law mainly
deals with62

1. The existence of various administrative bodies, such as,


Wage Board, Central Board of Revenue, Commission of enquiry
and Advisory Boards, Tariff commission, etc. their organisation
and powers.
2. Rule-making powers of administrative agencies, i.e.,
delegated legislation; safeguards against abuse of powers by
judicial control.
3. Judicial functions
administrative tribunals.

of

administrative

agencies

4.

Remedies-writs, injunctions, etc. -

5.

Procedural guarantees, i.e., rules of natural justice.

6.

Government liability in tort and contract.

7.

Public corporations.

like

(b) Difference between Constitutional & Administrative Law


Constitutional Law
Administrative Law
1. According to Holland, 1.According to Holland, "The
"The Constitutional law administrative law describes
describes
the
various the various organs of the
organs of the Government Government at motion".
at rest".
2. According to Prof. 2. According
to
Prof.
Jennings, "Constitutional Jennings,
"Administrative
law deals with the general law
deals
with
the
63

principles relating to the


organisation and powers of
various organs Of the
State.
3. In case where there is
a written Constitution like
that of India the difference
and relationship between
Constitutional law and
Administrative law is very
thick.
4. In countries having
written Constitution, the
source
of
the
Constitutional law is that
of Constitution itself.

organisation,
functions,
powers and duties of
Administrative authorities.

3. In case where there is


no written constitution like
that of England, the
difference and relationship
between Constitutional law
and Administrative law is
very thin.
4. In countries having no
written Constitution, the
sources of Administrative
law are. the Constitution,
statutes,
statutory
instruments, precedents and
customs.
5. Constitutional
law 5. Administrative law lays
deals with the rights of the stress upon the needs of the
citizens.
public at large.

(c) Causes for the Growth or the Reasons of the Importance of


the Administrative Law-The factors which led to the growth of
administrative law and its rising importace can be studied under
the following heads1. Demand of the Society-It is felt that the right of equality
64

under the Indian Constitution will be a useless right unless the


government comes forward to actively help the weaker sections
of the society to bring about equality in reality. This implies the
expansion of the administrative process and administrative law.
2. Regulatory Measures-The regulation of the patterns of
ownership, production and distribution is considered the
responsibility of any good government to ensure the maximum
good of the maximum number. This again has led to the growth
of administrative process and administrative law.
3. Evolution of Socialistic Pattern of Society-A welfare state
has necessarily to undertake legislation on ever widening front,
if the ultimate aim of a socialistic pattern of society operating
within the domain of the rule oflaw is to be evolved by
democratic process. The enormous legislative output of
Parliament and State's legislatures calls for trained personnel to
implement them. It is, therefore, that there is need for the
growth of administration and law regulating administration.
4. Inadequacy of Legislative Process-The modern legislative
process is not adequate. Administrative action has been called
upon to fill in the substance of legislation where it is impossible
for the legislature to lay down detailed rules in advance. Even
when detailed provisions were made by the legislature, they
were found to be defective and inadequate e.g., rate fixing,
licensing etc. Under these circumstances, it was felt
indispensable to delegate some powers to the administrative
authorities. There is, therefore, inevitable growth of the
administrative legislative process.
65

5. Inadequacy of Judicial System-It is to be noted that the


traditional type of judicial system is technical, slow, costly,
inexpert, complex and dilatory. It is not possible to expect
speedy disposal of even very important matters e.g., disputes
between employers and employees, lock-out, strikes. These
matters are dynamic and require not only adjudication but
development as well. Therefore, in cases where the need is fair
disposition and not merely disposition on file, administrative
adjudicatory process seems to be the only answer. It was for
this reason ihat industrial tribunals and labour courts came to
be established, which possessed the techniques and expertise
to handle the aforesaid complex problems.
6. Scope of Experimentation in Administrative Process-In
administrative process, there is a scope for experimentation.
Here, unlike legislation, it is not necessary to continue a rule
until commencement of the next session of the legislature. Here
the rule can be made, tried for some time and if it is found
defective, it can be altered or modified within a short period.
7. Non-technical Character of Administrative Process-The
traditional judiciary is conservative, rigid and technical. The
courts cannot decide cases without
formality and technicality whereas administrative tribunals are
bound to follow the rules of evidence and procedure. They can
take practical view of the matter and decide complex problems
as required in view of the socio-economic conditions.
66

8. Policing of Preventive Measures-Administrative agencies


can take effective steps for the enforcement of preventive
measures e.g., suspension, revocation,cancellation of licences,
destruction of contaminated articles etc, which are generally
not available through the ordinary courts of law.
9. Adoption of Preventive Measures-Administrative agencies
can take preventive measures e.g., licensing, rate fixing etc.
Unlike ordinary courts of law, they have not to wait for the
parties to come before them with disputes. In many cases these
preventive actions may prove to be more effective and useful
than punishing a person after he has committed a breach of any
provision of law and society has suffered the loss.
10. Change in the Concept of Government-The doctrine of
laissez faire has given place to the doctrine of welfare state and
this has led to the scope of administrative powers and
functions. The growth in the range of state functions has
introduced in an administrative age and an era of administrative
law. The result is that the development of administrative
process and administrative law has become the cornerstone of
modem political philosophy.
Conclusion-Thus, we can say that the study of Administrative
law is of great significance in India because of the proclaimed
objectives of the Indian polity to build up a socialistic pattern of
society. The objective of establishing a socialistic society has
generated administrative process and hence administrative law
at a large scale. Administration in India is bound to expand
further and at a quick pace. A strong derive for rapid expansion
67

has its own strong bureaucracy may have the tendency to rids
rough-shod over the rights of the people. If exercised properly,
the vast powers of the administration may lead to the welfare
state but; if abused they may
lead to administrative despotism and a totalitarian state. The
study and development of administrative law becomes
inevitable as administrative law is an instrument of the control
of administrative operation of the government interested in
social welfare.

Q. 2. Trace the origin and development of Administrative Law


in Write an essay on the origin and development of
Administrative Law. Or
Explain the causes of the development of Administrative law
in India Trace the Historical growth of Administrative Law.
Ans. As a matter of fact, as observed by Davis administrative
law existed long before the term administrative law came into
use. Administrative Law is, therefore, a late fruit of history and
product of modern civilization. It seeks to channelise
administrative powers to achieve the basic goal of any civilized
society, that is "growth with liberty".
Historical Basis of Administrative Law-Keeping in view of the
Historical basis of Administrative law, it can be said that being
related to public administration, administrative Law should be
deemed to have been in the existence in some form or another
68

in every country having any form of government. It is as ancient


as the administration itself is, it is a concomitant of organised
administration.
Parker has observed, "Since administrative law is the law that
governs, and is applied by the executive branch of government,
it must be as old as that branch".
Conception of Administrative Law in Ancient India-Although,
administration and administrative law are the all pervading
features of government today, yet at the same time they are
most ancient. Administrative law was in existence in India even
in ancient times. In India, the history of the administrative law
can be traced to the well organised and centralised
administration under the Mauryas and Guptas, several
centuries before the Christ, the rule 'of Dharma was in action.
The kings and administrators observed the rule of Dharma and
none claimed any exemption from it. The fundamental
principles of natural justice and fairness were followed by the
kings and officers as the administration could be run on those
principles which were accepted by Dharma. Although, the
concept of Dharma was even wider than the 'Rule of Law' or
"Due Process of Law", yet, there was no administrative law in
existence in the sense in which we study it today. There was no
machinery to enforce the rule of Dharma so far as applied to
the king. However, it was moral duty of the king to abide by the
rule of Dharma.
Establishment of East India Company and the Advent of British
Rule-Expansion of Administrative Process-With the
establishment of East India Company and the advent of the
British Rule in India, the powers of government had increased.
69

Many Acts, statutes and legislations were passed by the British


Government. The ruling foreign powers was primarily interested
in strengthening its own domination: the administrative
machinery was used mainly with that end in view and civil
service came to be designed as the "Steel frame."India from
ancient period to present day.Orafter obtaining the
independence.Or
Development of Administrative Law Before Independence-It
may be noted that before, 1947 India was a police state. The
government was concerned with the most primary duties only
and the functions of welfare state were not
discharged. A general account of the growth of administrative
process during the British rule is being given as follows I. 1834-1939
(A) Public Safety-In this area, the government regulation
generally took the form of prohibiting the carrying'of a
particular activity without a licence or permission. Licencing
Acts in this field are the Sarais Act, 1867, the Arms Act, 1878,
the Indian Explosives Act, 1884, the Indian Petroleum Act, 1899,
the Boilers Act, 1923.
(B) Public Health-As regards public health, it was largely a
neglected subject during the British administration. The Acts
which were passed relating to public health are the Opium Act,
1878, the Dangerous Drugs Act, 1930, the Epidemic Diseases
Act, 1897, the Indian Medical Council Act, 1933.
(C) Public Morality-In connection with public morality the
following two Acts were passed70

(i) The Dramatic Public Performance Act, 1876, and


(ii) The Cinematograph Act, 1918.
(D) Transport-The government regulation of transport was
mainly from the point of view of general security. As regards
railways and tramways, some further regulation was
necessiated because of their being public utility services.
Important Acts in this area are the State Carriage Act, 1861, the
Indian Railways Act, 1890, the Motor Vehicles Act, 1914, the
Indian Merchant Shipping Act, 1923 and the Motor Vehicles Act,
1939.
(E) Labour-A number of Acts were passed in this area but their
purpose was not labour welfare. The notable Acts are-(i)
Employers and Workmen Disputes Act, 1860, the Mines Act,
1923, the Workmen's Compensation Act, 1923, the Indian Trade
Disputes Act, 1929; the Factories Act, 1934 and the Payment of
Wages Act, 1936.
(F) Economic Regulation-Since the British Government was not
much interested in the economic development of India, except
in so far as it benefited England or her industries, the
regulations pertaining to the economic life of India were very
few. The Acts providing for economic regulation are as under(i) The Companies Act, 1850,
(ii) The Companies Act, 1913,
(iii) The Cotton Transport Act, 1923,
(iv) The Tea Control Act, 1934,
(v) The Rubber Control Act, 1934, and
(vi) The Reserve Bank of India Act, 1934.
71

II.

1939-1947

National Safety-Due to the Second World War the problem of


national safety came before the executive. During war the
executive assumed vast powers. Numerous administrative
agencies were established to face the situation arising from
war. Relevant Acts are the Defence of India Act, 1939, the
Essential Supplies (Temporary Powers) Act, 1946, the Import
and Export (Control) Act, 1947 and the Foreign Exchange
Regulation Act, 1947.
Development of Administrative Law After Independence-India
after getting independence in 1947, became a "welfare state"
instead of a police state as a result of that the following aspects
of law emerged(a) Socialisation of Law-India became free in 1947. The
government assumed new responsibilities of varied sorts with a
view to create social service state. TliiS implementation of a vast
programme of economic and social reconstruction,-with a view
to promote the welfare of the people has resulted in
socialisation of law and in a tremendous growth of
administrative process. For the promotion of general welfare a
large number of socio-economic legislations were passed.
Welfare state came to be established. Industrial Resolution of
1956 was passed with the view to create socialistic pattern of
society.
(b) Socio-economic Philosophy of the Constitution-In the :
constitution of India the ideal of socio-economic philosophy has
72

been embodied. Accordingly, the state has been directed to


follow the principles of socio-econom ic justice in the
governance of the country and in making laws. Further direction
to the state is to direct its policy towards securing that the
ownership and control of the material resources of the
community are so distributed as .best, to subserve the common
good and that the operation of the economic system does not
result in the concentration of wealth and means of production
to the common detriment.
(c) Socio-economic Legislation With the view to realise the
ideals of socio-economic justice a large number of socioeconomic enactments have been passed(i) Industries (Development and Regulation) Act, 1951,
(ii) Essential Commodities Act, 1955, and
(iii) Monopolies and Restrictive Trade Practices Act, 1969.
(d) Socialistic Pattern of Society- A major area of postindependence governmental operation has been the regulation
of economic sector. This is a manifestation of the feeling that
political democracy would not mean much in a poor country like
India if economic conditions of the people were not to improve.
With this end in view, the country has accepted the ideal of
socialistic pattern of socicfy which envisages economic
development with social justice.

73

Q. 3 (a). What do yon mean by Droit Administratif? Explain its


characteristic features. Explain the merits of the system. Also
state the composition and working of Conseil d'Etat.
(b) Distinguish between Administrative law and Droit
Administratif.

Ans. (a). Meaning of Droit Administratif-Droit Administratif is


a body of rules which determines the organisation'and duties
of public administration and which regulates the relations of
Administration with the citizen of the stateAccording to Dicey, Droit Administratif is that portion of
"French Law" which determines(i) The position and liabilities of state officials;
(ii) The civil rights and liabilities of private individuals in their
dealings with officials as representatives of the state; and
(iii) The procedure by which these rights and liabilities are
enforced.
Dual Judicature System in France-Civil and Administrative
CourtsIt may be noted that under the French Legal System, known
Droit Administratif, there are two types of laws and two sets
of Courts independent from each other. The ordinary courts
administer the ordinary civil law as between subjects and
subjects. The administrative courts administer the law as
74

between subjects and the state. An administrative authority or


official is not subjert to the jurisdiction of ordinary civil courts
exercising powers under the civil law in disputes arising
between the private individuals. All claims and disputes in
which administrtive authorities or officials are parties do not
come within the scope of the jurisdiction of ordinary courts
and they are to be dealt with and decided by the
administrative tribunals headed by Conseil d' Etat.
Droit Administratif-Napoleon Bonaparte was the founder of
the Droit Administratif. It was he who established the Consei'
d'Etat. He passed an ordinance depriving the law courts of
their jurisdiction in administrative matters and another
ordinance that such matters could be determined only by the
Conseil d'Etat Droit administratif is a very old system. It was
regularly put into practice by Napoleon in the 18th century.
Napoleon favoured freedom for the administration and
also favoured reforms. He wanted an institution to give relief
to the people against the excesses of administration. It was,
therefore, that in 1799 Conseil d' Etat was established by him.
The object of such institution was to resolve difficulties
which might arise in the cause of the administration. But with
the change in time it started exercising judicial powers in
matters involving administration. The position is that in all
matters involving administration the jurisdiction of Conseil d'
Etat is final. It reviews direct complaints from the citizens.
Merits of the Droit Administratifln
France the organ of the review of administrative decisions is
75

itself a part of the administration, as the work is undertaken


by the Conseil d' Etat, assisted since 1954 by the local
administrative Courts. In spite of, or because of this intimate
link between the supervising or reviewing tribunals and the
administration, the onus of proof in the French system is
always on the administration. The administrative agencies
must be prepared to justify their acts. "Paradoxically" observe
Ridley and Blondel, "it was able to scrutinize administrative
decisions more throughly than the ordinary courts ever had
done."
The Composition and Working of Conseil d' EtatConseil d' Etat consists of a body of men who are on the one
side the confidential advisors of the government and on the
other side the cases of the subjects against the administration.
In the latter case, they act as uncommitted judges and if
necessary condemn the'executive act. This paradox has made
the Conseil d' Etat, an efficacious institution in France. If there
is a conflict between the ordinary courts and the
administrative Courts regarding jurisdiction the matter is
decided by the Tribunal des conflicts. This is a special tribunal
which consists of an equal number of ordinary and
administrative judges. It is presided over by the minister of
justice.
The main functions of the Conseil d'Etat from the beginning
were planning and advising. It advises and plans executive
business. The difficulties which occur in the course of
administration are resolved by the Conseil d' Etat.
The Factors which have successfully subjected the
administration in France to the Rule of Law through droit
76

administratif with Conseil d' Etat at the apex are following1. The composition and function of the Conseil d' Etat itself,
2. The flexibility of its case law,
3. The simplicity of remedies available before the
administrative courts,
4. The special procedure evolved by those courts, and
5. The character of the substantive law which they apply.
Rules of Droit Administration-In France, droit administratif
consists of rules developed by the judges of administrative
courts. There are three series of rules included in droit
administratif1. Rules relating to administrative authorities and officialsappointment, dismissal, status, salary and duties etc.
2. Rules relating to the operation of public services to meet
the needs of citizens.
3. Rules relating to administrative adjudication-if any injury
is caused to a private citizen by the administration, the
matter has to be decided by the administrative courts.
Conseil d' Etat is the highest administrative Court, whose
decision is final.
Characteristic Features of Droit Administratif-The following
are the characteristic features of the Droit Administratif in
France1. Matters concerning state and administrative litigation
fall within the jurisdiction of administrative Courts and
connot be dccided by the ordinary courts of the land.
77

2. In deciding matters concerning the state and


administrative litigation, rules as developed by the
administative courts are applied.
3. If there is a conflict of jurisdiction between ordinary
courts and administrative courts, it is decided by the ii ihunttl
dvs conflicts.
4. Conseil d" I!tut is tin supreme administrative court.
It i to b<- nuied that tli<- Droit Administratif did not
adequately protect the individuals as against the state, n
would Ix ;> serious criticism, but it was not so.
The fact is that this system was able to provide expeditions
and inexpensive relief and better protection to the citizens
against administrative acts or omissions than the common law
system. The early common criticism of Droit Administratif was
that it cannot protect the private citizen from the excesses of
the administration. However, later researches have shown
that no single institution had done so much for the protection
of private citizens against the excesses of administration as
has been done by the Conseil d' Etat.

Conclusion-Despite its overall superiority, the French


administrative law cannot be characterised with perfection. Its
glories have been marred by the persistent slowness in -the
judicial review at the administarative courts and by the
difficulties of ensuring the execution of its last judgment.
Moreover, judicial control is the only one method of
78

controlling administrative action in French administrative law,


whereas, in England, a vigilant public opinion, a watchful
Parliament, a self-disciplined civil service and the jurisdiction
of administrative process serve as the additional modes of
control over administrative action. By contrast, it has to be
conceded that the French system still excels its counterpart in
the common law countries of the world.
(b) Distinction between Droit Administratif and
Administrative Law-The main difference between the two is
as under1. Droit Administratif is in force only in France whereas
Administrative law is applied in India, England and America.
2. Under Droit Administratif the dual system of judiciary is
applied whereas under Administrative law no such dual
system is applied. The same judicial system is available to all
the citizens.
3. Droit Administratif exercises its jurisdiction only on the
administration and the ordinary courts have no control over
the administrative courts whereas under Administrative law
administration is carried by the ordinary courts and they also
exercise their control over the tribunals.
4. Droit Administratif is an independent judicial system
whereas the source of Administrative law is Constitution of
the concerned country and is bound to function under it. .
5. Judicial review does not have any significance under Droit
Administratif whereas judicial review has chief importance
under Administrative lav,.
6. The principles of natural justice are found under Droit
Administratif whereas they are compulsorily observed under
79

Administrative law.

Q. 4. What do you mean by the Doctrine of Separation of


Powers? How far it embodies in the Constitution of India? Or
Explain the theory of Separation of Powers as propounded by
Montesquieu. What is the effect of this theory? Point out the
defects of this theory.

Ans. Meaning of the Doctrine of Separation of Powers-There


are generally three kinds of governmental powers, namely1. The Legislative;
2. The Executive; and
3. The Judicial (Judicative).
At the same time there are three organs of the government in
a State(i) the Legislative
(ii) the Executive and
(iii) the Judiciary.
The theory of separation of powers postulates that these
three powers of the government must, in a free democracy,
always be kept separate and be exercised by separate organs
of the government.
Accordingly, the legislature cannot exercise executive or
judicial powers, the executive cannot exercise legislative or
judicial powers, and the judiciary cannot exercise legislative or
executive powers of the government.
80

Origin of the Doctrine of Separation of Powers-The doctrine


of separation of pbwerS is of the ancient origin. The history of
the origin of the doctrine is traceable to Aristotle, in the 16th.
and 17th. centuries, French philosopher John Bodin and British
politician Locke respectively had expounded the doctrine of
separation of powers. But it was Montesquieu, who for the
first time gave it a systematic and scientific formulation.
Montesquieu's Theory of Separation of Powers-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, on any
two of them, are united in the same organ or individual, there
can be no liberty.
If, for example, 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 be not separated from
the legislative and the executive. Where it joined with the
legisative, 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.According to Wade and
Philips, separation of powers may mean three different things
1. That the same persons should not form part of more than
one of the three organs of government eg-, the Ministers
should not sit in Parliament;
81

2. That one organ of the government should not cqntrol or


interfere with the exercise of function by another organ, e.g.,
the judiciary should be independent of the executive or that
Ministers should not be responsible to Parliament; and
3. That one organ of the government should not exercise the
functions of another, e.g., the Ministers should not have
legislative powers.
Effect of the Theory of Separation of Powers-The theory of
separation of powers as propounded by Montesquieu had
tremendous impact on the growth of administrative law and
functioning of governments. It attracted English and American
jurists as well as politicians. According to this theory if the
legislative, the executive, and the judicial functions were given
to one man, there was an end of personal liberty.
Defects of the Theory of Separation of Powers-The theory of
Separation of powers suffers from the following defects1. Historical Absurdity-Historically speaking, the theory was
not correct. Montesquieu's exposition of this theory is based
on the British Constitution of the first part of the eighteenth
century as he understood it. In reality there was no
separation of powers under the Constitution of England.
Prof. Ullinan rightly says, "England was not the classic
powers". According to Donoughmore Committee, "In British
Constitution there was no such thing as the absolute
separation of the legislative, executive and judicial powers."
2. Division of Functions-The assumption behind the
82

doctrine is that the three functions of the government,


namely, legislative, judicial and the executive are divisible
from each other. There is overlapping with each other. As
Friedmann and Benjafield say, "The truth is that each of the
three functions of the government
contains elements of the other two and that any rigid
attempt to define and separate those functions must either
fail or cause serious inefficiency in government".
3. Practical Difficulties in the Acceptance of this Doctrine-It
is difficult to take actions if this doctrine is accepted in its
entirety. In practice it has not been found possible to
concentrate power of one kind in one organ only. The
legislature does not act merely as a law-making body, but
also acts as an overseer of the executive, the administrative
organ has legislative function. The judiciary has not only
judicial functions but also has some rule-making powers also.
4. Adherence to this Doctrine not Possible in Welfare StateThe modern state is a welfare state and it has to solve many
complex socio-politico-economic problems of a country. In
this state of affairs it is not possible to stick to this doctrine.
As J. Frankfuter says-"Enforcement of rigid conception of
separation of powers would make modern government
impossible."
5. Organic Separation-According to D.D. Basu. "in modern
practice, the theory of separation of powers means an
organic separation and the distinction must be drawn
between 'essential' and 'incidental' powers and that one
organ of the government cannot usurp or encroach upon the
essential functions belonging to another organ, but many
exercise some incidental functions thereof." In this way, it
83

may be concluded that the doctrine of separation of


powers in the strict sense is undersirable and impracticable.
Therefore, it is not fully accepted in any country of the
world.Nevertheless, its value lies in the emphasis on those
checks and balances which are necessary to prevent an
abuse of the enormous powers of the executive.

How far Doctrine of Separation of Powers Embodies in Indian


Constitution?-The position of this doctrine may be examined
with reference to the provisions of Indian
Constitution under the following heads1. Constitutional Conspectus-ln India the doctrine of
separation of powers has not been accorded a constitutional
status. In the Constituent Assembly there was a proposal to
incorporate this doctrine in the Constitution but it was
knowingly not accepted. The constitutional scheme does not
contain any formalistic and dogmatic division of powers.
The Indian Constitution does not speak of the functions of
the three organs of state. Under the entire Constitution only
executive power is vested in the President while provisions are
simply made for a Parliament and Judiciary without expressly
vesting the legislative and judicial powers in any person or
body.
2. Parliamentary Executive-Although the executive power of
the Union is vested in President, the Constitution provides for
the parliamentary executive. Under the Constitution,
provisions have been made for a Council of Ministers with the
84

Prime Minister at the head to aid and advise the President in


the exercise of his functions. The Council of Ministers including
the Prime Minister are members of the Parliament and
collectively responsible to the House of the People. Thus, the
President is not the head of the executive. The only validity of
the doctrine of separation of powers is in the sense that one
organ of the state should not assume the
essential functions of the other. This was the view of the
Supreme Court as expressed in Ram Jawaya Vs. State of
Punjab A.I.R. 1953.
3. Broad Division of Functions-On a casual glance at the
provisions of the Constitution of India, one may be inclined to
say that the doctrine of broad division of the power of state
has been accepted under the constitution of India In
Golaknath Vs. State of Punjuab, A.I.R. 1967 C.J Subha Rao,
observed, "The constitution brings into existence different
constitutional entities, namely, the Union, the States and the
Union Territories. It creates three major instruments of power,
namely, the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to
exercise their respective powers without overstepping their
limits. They should function within the spheres allotted to
them".
4. Functional Overlapping-On a perusal of the Constitutional
provisions, it is clear that the doctrine of separation of powers
has not been accepted in India in
its strict sense and there is functional overlapping. Thre
President of India, in whom the executive authority of India is
85

vested, exercises legislative power in the


shape of the ordinance-making power and also the judicial
powers under Arts. 103 (1) and 217 (3) mention only a few.
The Supreme Court has the power to declare the laws passed
by the legislature and the actions taken by the executive void,
if they violate any provision of the Constitution or the law
passed by the legislature. Even the constitutent power to
amend the Constitution by the Parliament is subject to judicial
review. The court has power to declare any Constitutional
amendment void, if it changes the basic structure of the
Constitution.
The legislature exercises not only legislative powers but also
judicial powers in cases of breach of its privilege,
impeachment of the President and removal of the judges.
5. Constitutional Recognition of the Doctrine-The question
of constitutional recognition of the doctrine of separation of
powers was at length considered by the Supreme Court in
Indira Nehru Gandhi Vs. Raj Narain A.I.R. 1975. In this case Ray
C.J. has observed that our Constitution recognises division
between three main powers of the government.
6. Source of the Doctrine of Separation of Powers is
Constituent Powers-Under the Indian Jurisprudence the
source of the doctrine of separation of powers is constituent
power which is an amalgam of all the powers. When the
constituent power exercises powers, the constituent power
comprises legislative, executive and judicial powers. All
powers flow from the constituent power through the
Constitution to the various departments or heads. The
86

Constituent power is sovereign. It creates the organs and


distributes the powers.
7. Separation of Powers as a Basic Feature-In Indira Nehru
Gandhi Vs. Raj Narain A.l.R. 1975, Beg. J. has observed that
separation of powers is a feature of the basic structure of the
Constitution. None of the three separate organs of the
Republic can take over the functions assigned to the other.
This constitutional scheme cannot be changed even by
resorting to amending process U/Art. 386 of the Constitution.
8. Doctrine Provides a System of Checks and Balances-If the
doctrine of separation of powers in its classical sense cannot
be applied to any modern government, this does not mean
that the doctrine has no significance to day. It has not lost its
political significance in the sense that centre of authority must
be dispersed to avoid absolutism. In Indira Nehru Gandhi Vs.
Raj Narain. A.l.R. 1975 Chandrachud J. also remarked that as a
political usefulness, the doctrine of separation of powers is
now widely recognised. No Constitution can survive without a
conscious adherence to its line checks and balances. Just as
courts ought not to enter into problems entwined in the
'political thicket', parliament must also respect the preserve of
the courts. The principle of separation of powers is a principle
of restraint which has in it precept, innate in the prudence of
self-preservation, that discretion is the batter part of valour.
Conclusion - In conclusion we can cite the opinion of our
Supreme Court expressed in Keswanand Bharti's Case, 1973
that both the Supremacy of the Constitution and Separation of
87

Powers are consitutents of the basic structure of the Indian


Constitution. The view has been reaffirmed by the Court in.
Smt. Indira Nehru Gandhi Vs. Raj Narain Singh, 1975 Beg, J.
observed "this Constitution has a basic structure comprising
the three organs of the Republic : the executive, the
legislature and the judiciary. It is through each of these organs
that the sovereign, will of the people has to operate and
manifest itself and not through only one of them. Neither
of these separate organs of the Republic can take over the
functions assigned to the other. This is the basic structure of
the scheme of the Government of the Republic laid down in
our Constitution".

Q. 5. What is meant by the term 'Rule of Law'? Explain fully


the Dicey's concept of the 'rule of law'. What is the merit and
demerit of Dicey's Concept of the rule of Law? Explain the
modern concept of the rule of law. Or
What is the position of the rule of law under Indian
Constitution?

Ans. Meaning of the term ' Ruleof Law- The term'ruleof law'
means the principles of legality which refers to a government
based on the principles of law and not of the men. In this
sense the concept of the rule of law is opposed to arbitrary
powers.
88

Rule of law is one of the basic principles of the English


Constitution. This doctrine has been enshrined in the
Constitution of U.S.A. and in the Constitution of India as well.
The entire basis of administrative law is the concept of rule of
law. Sir Edward Coke, is said to be the originator of this
principle. In a battle against the King, he succeeded in
maintaining that the King must be under the God and the law
and thus maintained the supremacy of law against the
executive. Dicey developed this doctrine of Coke. According to
Dicey, the rule of law is one of the cardinal principles of the
English legal system. He attributed the following three distinct
meanings to this doctrine1. Supremacy of law;
2. Equality before law; and
3. Predominance of legal spirit.
1. Supremacy of law-Dicey says 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 power or even wide discretionary authority on
the part of government. He asserted that the Englishmen were
ruled by the law, and by the law alone; he denied that in
England the government was based on the exercise by persons
in authority of wide arbitrary, or discretionary powers. Dicey
claimed, "wherever there is discretion, there is room for
arbitrariness and that in a republic no less than under a
monarchy discretionary authority on the part of government
must mean insecurity for legal freedom on the part of its
subjects. Accordingly, Wade also says, "The rule of law
89

requires that the government should be subject to the law,


rather than the law be subject to the government."
2. Equality before Law -Dicey says 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 law
courts. In England, he maintained, all persons were subject to
one and the same law, and there were no extraordinary
tribunals or special courts for the officers of the government
and other authorities. According to him Courts are supreme
throughout the state. In this connection he criticized the
French legal system of droit administratif in which there we're
separate administrative tribunals for deciding cases between
the officials of the state and the citizens. In his view,
exemption of civil servants from the jurisdiction of the
ordinary courts oflaw and providing'them with the special
tribunals was the negation of equality.
3. Predominance of Legal Spirit-Dicey says that in England
the general principles of the Constitution are the result of
judicial decisions of the courts. In many countries rights are
guaranteed by a written Constitution. But in England it is not
so. These rights are the result of judicial decisions in concrete
cases which have actually arisen between the parties. The
Constitution is not the source but consequence of the rights of
the individuals. Dicey apprehended that if the source of
fundamental rights of the people is any written Constitution,
the right can be abrogated at any time by amending the
Constitution. In this way, the rule oflaw postulates judicial
supremacy.
90

Merits of Dicey's Theory of Rule of Law -Dicey's theory of the


rule oflaw proved to be a powerful instrument in controlling
the administrative authorities within their limits. It worked as
a kind of touchstone to judge and test the validity of
administrative actions.
Wade is also of the opinion that the British Constitution is
founded on the doctrine of rule oflaw. Similar is the view of
Yardley that in broard principle the rule of law is accepted by
all as a necessary constitutional safeguard. Dicey's theory lias
thwarted the recognition and growth of administrative law in
England. Although in the 20th century, complete absence of
discretionary powers with the administration is not possible
yet this doctrine puts an effective control over the increases of
executive and administrative powers and keeps those
authorities within their bounds. As the supremacy of the
ordinary courts of law is accepted, they have power to control
the actions taken by the administrative authorities. They must
act according to law and cannot take any action as per their
whims or caprice. It is the duty of the courts to see that these
authorities must exercise their powers within the limits of law.

Demerits of Dicey's Theory of Rule of Law-The doctrine of


rule of law as expounded by Dicey was never fully operative in
England. There were and are many exceptions and restrictions
to it. Wade rightly states that if he had chosen to examine the
scope of administrative law in England, he would have to
admit that even in 1885 there existed a.long list of statutes
which permitted the exercise of discretionary powers which
91

would not be called in question by courts and the Crown


enjoyed immunity under the maxim, "The King can do no
wrong".
The shortcoming of Dicey's thesis was that he not only
excluded discretionary powers but also insisted that the
administrative authorities should not be given wide
discretionary powers, as according to him, wherever there is
discretion, there is room for arbitrariness. Thus, Dicey failed to
distinguish arbitrary power from discretionary power. Though
arbitrary power is inconsistent with the concept of rule of law,
discretionary power is not, if it is properly exercised. The
modern welfare state cannot work properly without exercising
discretionary powers.
According to Wade and Philips, "If it is contrary to the rule of
law that the discretionary authority should be given to
government department or public officer, then the rule of law
is inapplicable to any modern Constitutiori". Mathew, J. also
says, "If it is contrary to the rule of law that discretionary
authority should be given to government departments or
public officers, then there is no rule of law in any modern
state".
In fact. Dicey misunderstood the real nature of Droit
Administratif. The truth is that the French System in many
respects proved to be more effective in controlling the
administrative powers than the common law system.
Technically, Conseil d'Etat was a part of the administration but
practically and really it was very much a court. Administrative
actions were not immune from the judicial control of this
institution.
Thus, it can fairly be concluded that the concept of rule of law
92

has exercised a potent influence on the thinking and ideas


pertaining to administrative law. In modern times, Dicey's rule
of law has come to be identified with the Concept of rights of
citizens. According to Griffith and Street, the doctrine of rule
of law postulates that the law binds the adminstration.
Modern Concept of the Rule of Law-The modern concept of
the Rule of Law is fairly wide. Davis gives seven principal
meanings of the term Rule of Law1. 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 forjudges and ordinary courts of law to
executive authorities and administrative tribunals; and
7. Judicial review of administrative action.

Position of Rule of Law under the Indian Constitution-The


Indian Constitution embodies the modern concept of the rule
of law. The concept of the rule of law exists in this country by
virtue of the following features1. Supremacy of the Constitution-Dicey's "Doctrine of the
rule of law" has been accepted and embodied in the
Constitution of India because the Preamble includes the
ideals of justice, liberty and equality. These concepts are
enshrined in the Part HI as fundamental rights and are made
93

enforceable. The Constitution is supreme and all the three


organs of the government, that is legislature, executive and
judiciary are subordinate to and have to act in accordance
with it. The principle of judicial review is enshrined in . the
Constitution and subjects can approach High Courts and
Supreme Court for the enforcement of Fundamental Rights
guaranteed under the Constitution. Supreme Court under
Art. 32 and High Courts under Art. 226 can issue writs for the
enforcement of the Fundamental Rights.
The executive and legislative powers of the State and the
Union are required to be exercised according to the
provisions of the constitution. The government and public
officials are not above law.
2. Constitutional Requirement of Equality-Equality before
law as a postulate of rule of law has been accepted and
adopted under Art. 14 of the Constitution. The maxim "The
king can do no wrong" has no application in India. The
government and public authorities are subject to the
jurisdiction of the ordinary courts of law and for similar
wrongs are to be tried and penalised similarly. They are
subject to ordinary legal process. The doctrine of equality is
accepted in public services also. Suits for breach of contracts
and torts committed by the public authorities can be filed in
the ordinary courts and damages recovered from the State
Governmet or the Union Government for the acts of their
employees.
3. Constitutional Guarantee and Judicial Enforcement of
Rights-The Constitution of India guranteed certain rights
which can be enforced by the courts. At this juncture, we
may consider the position prevailing in India as regards the
94

third principle of Dicey's doctrine of rule of law, that is,


predominance of legal spirit. Untill recently this principle was
being considered in the Context of interpreting the
provisions of the Constitution. (A.K. Gopalan Vs. State of
Madras A.I.R 1950, S.C. 27, Ram Prasad Vs. State, A.I.R. 1953,
S.C 215, S.G. Jai Singh Vs. Union of India, A.I.R. 1967 S.C.
1427.)
But in Chief Settlement Commissioner, Punjab Vs. Om
Prakash A.I.R. 1969, the Supreme Court observed that in our
constitutional system, the central and most characteristic
feature is the concept of the rule of law which means, in the
present context, the authority of law court to test all
administrative action by the standard of legality. The
administrative or executive action that does not meet the
standard will be set aside if the aggrieved person brings the
appropriate action in the competent court."
4. Rule of Law as Legal Concept-The basic concept of the
rule of law is not a defined legal concept. The courts would
not declare any positive law to be invalid on the ground that
it violates the contents of Rule of Law. However, in Habeas
Corpus Case A.I.R. 1967, an attempt was made to challenge
the detention orders during emergency on the ground that
they were violative of the principles of the Rule of Law as
"the obligation to act in accordance with the rule of law...is
the central feature of our constitutional system and is a basic
feature of the Constitution."
The narrow issue before the Supreme Court was whether
there was any "Rule of Law" in India apart from Art. 21 of the
Constitution. The majority of the Bench answered the issue
in the negative. Justice Khanna, however, did not agree with
95

the majority view and gave a powerful dissenting judgment.


His Lordship observed, "Rule of law is antithesis of
arbitrariness...(It is accepted) in all civilised societies....(It) has
come to be regarded as the mark of free society. It seeks to
maintain a balance between the opposit notions of individual
liberty and public order. Even in the asbsence of Art. 21 in
the Constitution, the state has got no power to deprive a
person of his life or liberty withbut the authority of law.
5. Rule of Law as a Feature of Basic Structure-In
Kesvananda Bharti Vs. State of Kerala, A.I.R. 1973, some of
the judges constituting majority were of the opinion that the
Rule of law was an "aspect of the doctrine of basic sutructure
of the Constitution, which even the plenary power of
Parliament cannot reach to amend."
6. Elimination of Arbitrariness, and not of Discretion-From
the point of view of Indian conception of rule of law, it
eliminated arbitrariness and not discretion. As Davis has
observed, "All governments in history have been
governments of laws and not of the men. Rules alone,
untempered by discretion cannot cope with the complexities
of modern government and of modern justice. Discretion is
our principal source of creativeness in government and in
law". It, therefore, becomes necessary to confine structure
and check discre-tionin order to uphold the principles of rule
of law in administraion, so that the discretionary power does
not degenerate into arbitrary power.
7. Compliance with the Requirement of Law-In a rule of
law society, the executive is required to observe and comply
with the requirement of law. In Sambamurthy Vs. State of
A.P. A.J.R. 1987, there arose a question of great legal
96

importance having far reaching effect. In this Case the


Supreme-Court held that Art. 371-D (5) (Proviso) of the
Constitution violates Rule of Law which is a basic structure
and essential feature of the Constitution. This constitutional
provision empowered the State, Government of Andhra
Pradesh to nullify any decision of the Administrative Services
Tribunal. The Supreme Court held these provisions
unconstitutional.
8. Fairness in Action-It was noticed that due to the growth
of governmental functions, it was not possible for
government by itself to undertake to regulate and control,
say, the service, industries, professions, education and other
similar activities and that persons possessing special skills
and experience rather than politicians who compose
government should do it. Thus, there grew assemblage of
Commissions, Boards, Tribunals and bodies to deal with
these and many other matters. In such a context it is
heartening to note that courts are making all concerted
efforts to establish a rule oflaw society in India.
9. Public Interest in Security of Social Welfare-The rule
oflaw notion as evolved by the Indian Courts extends to the
protection of social welfare as well. With this end in view the
Supreme Court in Veena Seth Vs. State of Bihar A.l.R. 1983
held that the reach of the rule oflaw extended to the poor
and the down-trodden, the ignorant and illiterate who
constitutie the large bulk of humanity in India.
10. National Policy of Reservation for Backward Classes
and Constitutional Viability of Creamy-layer-In the Mandal
Commission Case, 1992 the Supreme Court has upheld the
national policy of reservation in favour of socially and
97

educationally backward classes but at the same time has also


required identification and exclusion of creamy layer for
extension of the reach of Rule of law to the disadvantaged
section of people.
11. Pervasiveness of the Concept of Rule of Law- The
Constitution of India embodies the modern concept of the
rule oflaw with the establishment of a judicial system which
should be able to work impartially and free from all
influences.

Conclusion-Regarding the importance of the rule of Law,


Supreme Court revised its opinion in Smt. Indira Nehru Gandhi
Vs. Raj Narain A.l.R. 1975, S.C. 2299 Mathew, J. stated that
according to the majority opinion in the Bharti's Case rule oflaw
is a basic structure of the constitution apart from democracy.
"The rule of law postulates the pervasiveness of the spirit of law
throughout the whole range of government in the sense of
excluding arbitrary official action in any sphere........It is an
expression to give reality to something which is not readily
expressible. It is impossible to enunciate the rule of law which
has its basis that no decision can be made unless there is a
certain rule to govern decision. The provisions of the
Constitution were enacted with the view to ensure the rule
oflaw. The equality aspect of the rule oflaw and of the
democratic republicanism is provided U/Art. 14 of Constitution.

98

Q. 6. What are the various sources of Administrative Law in


India? Explain fully.

Ans. Sources of Administrative Law-The main sources of


administrative law in India are as follows1. Constitution2. Statutes3. Ordinances4. Delegated Legislation
5. Case Law6. Reports of Committees7. Administrative Quasi-Iegislation-"
1. Constitution-The preamble of the Indian Constitution
aims at establishing a sovereign; socialist, secular, democratic
republic so as to secure to all its citizens, social, economic and
political justice, liberty of thought, expression, belief, faith and
worship etc. Art. 38 of the Constitution further provides that
the state shall strive to secure a social order in which social
and economic justice shall infom all institutions of national
life.
99

Besides providing for functional organization and


consequential growth in administrative process, the
Constitution has also provided for an elaborate control
mechanism. The Constitution demarcates the legislative and
administrative action and adjudge their constitutionality. All
the legislative actions of the administration have been
expressly brought by the Constitution within the purview of
Art. 13 by defining 'Law' as including "order', 'bye-law', 'rule'
and notification' etc. having the force of law. All these features
of the constitution influence and shape the nature and
contents of the administrative law in India.
2. Statutes- Statute is the main source of administrative
power. Statute emanates from the Constitution. Under the
Constitution law-making power has been given to Parliament
and State legislatures. Administration is given powers by
statutes. All the statutes have to conform to the constitutional
patterns. Exercise of administrative powers has to conform to
the statutory patterns.
3. Ordinances-The ordinance-making power relates to the
legislative powers of the Chief Executive in Union and the
States. Art. 123 empowers the President to
promulgate ordinances during the recess of Parliament, and
Art. 213 confers a similar power on the Governor to
promulgate ordinances during the recess of state legislature.
These provisions have secured considerable flexibility both to
the Union and to the State to enact laws to meet emergent
situations as also to meet circumstances created by laws being
declared void by courts of law. Grave public inconvenience
100

would be caused if an Act, like the Bombay Sales Tax Act,


being declared void, no machinery existed whereby a valid law
could be promptly promulgated. However, it must be
remembered that under the Indian Constitution a validating
Act must stand the test of Part HI of the Constitution. It may
be noted that the ordinance making power of the Chief
Executive is not unlimited. It is provided under the
Constitution that the Pesident or the Governor, as the case
may be, can issue ordinances on the advice of the Council of
Ministers. For the confirmation of ordinance approval of the
Houses is required. In this way, the power is subjected to
legislative control.
The question whether the ordinance can be challenged if
made on collateral grounds remains open in view of the
Supreme Court decision in the Bank Nationalisation Case.
A.I.R. 1970. Will the same test as advocated in the obiter by
the court apply for declaration for emergency, Madras High
Court has, however, held on April 3, 1993 that the dismissal of
Patna government under Art. 356 was invalid because the
emergency power under that Article was exercised mala fide.
This is a landmark decision which opens a new chapter in the
history of public law review.
In S.R. Bommai Vs. Union of India, A.I.R. 1994, the Supreme
Court has held that proclamation of emergency on the ground
of failure of constitutional machinery under Art. 356 is subject
to the judicial review. Accordingly, Presidential Rule in certain
states was held to be unconstitutional.
4. Delegated Legislation-Law-making is the primary function
of the Legislature. Yet, in no country does the legislature
101

monopolise.the whole of legislative power.


A good deal of legislation is made by the administration under
the powers conferred by the Legislature. This type of
administrative legislation is called "delegated or subordinate
legislation". The delegated legislation is subject to Judicial and
Parliamentary control. In this way, delegated legislation is an
important source of administrative law.
5. Case Law-The basis of Indian Administrative Law is judgemade law. This means that it is subject to all the strengths and
faculties of judicial law-making. In the absence of special
administrative courts new norms of administrative law have
been evolved. The function of courts is two-fold, regulative
and formative. The rules laid for controlling the actions of
administration by various devices namely, reasoned decisions,
quasi-judicial functions, rules of natural justice, for instance,
rule of hearing and rule against bias have been developed. The
new principles laid down in the form of guidelines for the
future course of action.
6. Reports of Committees-Modernisation and technological
developments had created crucial problems such as cultural
conflicts, haphazard urbanisation, ruthless exploitation of
natural resources, environmental polution, concentration of
economic power, staggering inflation, accelerated smuggling,
pervasive corruption etc. which a modern government
confronts with. These multi-dimensional problems with varied
social, economic and political division in to separate branches,
demanded growth of administration and law regulating
administration.
In such a socio-economic context the increasing powers of
administration attracted the attention of jurists. Lord Hewart
102

published a famous book. The New Despotism, in 1929 which


purported to expose the extent to which the Cjvil Service and
"bureaucracy" were then alleged to be the true rulers of the
country. Two particular factors were selected for attack on
the grotVth of the administrative process(i) The extent to which the executive was given freedom by
Parliament to make delegated legislation, and
(ii) Complementary evil of freedom from control by the
courts over the exercise of executive discretions by reason of
extremely wide powers given by the legislature. All this led to
the setting up to "Committee on Ministers Powers" which is
commonly known as Donoughmore Committee, which
submitted its Report in 1932. In the opinion of Committee,
three main areas requirecd attention; namely(a) The inadequate provision made for publication and
control of subordinate legislation;
(b) The Lacuna in the law caused by the inability of a subject
to sue the crown in tort, and
(c) The extent to which the control and supervision of
administrative decisions were passing out of the hands of the
courts and were being entrusted to specialist tribunals and
inquiry without effective control. The Statutory Instrument
Act, 1946 was passed concerning the control of subordinate
legislation. The Crown Proceedings Act, 1947 was passed
assimilating the crown's tortious liablility to that of an
individual of full age and capacity.
As a result of this Report, the Tribunals and Inquiries Act, 1948
was enacted. This statute s6t up a permanent council on
103

Tribunals and .laid down certain general principles of


procedure to be followed by administrative tribunals and
inquiries and also provided for their supervision by the courts
of law.
In India, there is Lok Sabha Committee on subordinate
Legislation, and Rajya Sabha Committee on subordinate
Legislation. These committees were established to scrutinize
the delegated legislation made by the Executive. Most
valuable reports have been submitted by these committees
which play an important role in evolving Indian Administrative
Law. Parliamentary Control is exercised over delegated
legislation through these committees in effective way because
the administration takes necessary steps on their
recommendations to &void discussion in Parliament.
7. Administrative Quasi-Iegislation-" Administrative Quasilegislation" is a term coined for administrative directions or
instructions. An mcreasing modern trend is the issuing of
directions or instructions by the functional government at
work. In any intensive form of government the desirability and
efficacy of administrative directions issued by the superior
administrative authorities to their.subordinates cannot be
dispensed with. "Administrative direction" is a most
efficacious technique for achieving some kind of uniformity in
the exercise of administrative discretion and determination of
the policy and its uniform application.

104

Q. 7 (a). Briefly, give the various kinds of classification of


Administrative Action? Explain with examples. What is
Legislative; Judicial and Administrative Action? Also explain
the Quasi-legislative and Quasi-judicial Actions.
(b) Distinguish between-(i) Quasi-legislative and quasi-judicial
S actions; (ii) Legislative and Judicial Actions; (iii) Legislative
and Administrative Actions; (iv) Judicial,Quasi-judicial and
Administrative Actions; (v) Administrative and Quasi-judicial
Actions.

Ans. Classification of Administrative Action-Generally, there is


a general agreement among the writers on the administrative
law that any attempt of classifying administrative functions on
any conceptual basis'is not only impossible but also futile yet
generally, an administrative action can be classified into four
eategories1. Rule-making action or quasi-legislative action.
2. Rule-decision action or quasi-judicial action.
3. Rule-application action or administrative.action.
105

4. Ministerial action.
(a) Various Kinds of Administrative Action-The various kinds of
action of Administration are as under1. Rule-Making Action or Quasi-legislative Action-It may be
noted that the Legislative action of the administration is a rulemaking function. When any administrative authority exercises
law-making power delegated to it by the legislature it is known
as the rule-making action of the administration or quasilegislative action. Legislative action of the administration
consists of the making rules, regulations, bye-laws etc.
Characteristics of Rule-making Action-Rule-making actions of
the administration partakes all the characteristic features which
a normal legislative action possesses. Such characteristic
features may be generally, prospective in behaviour which
bases action on policy consideration and creates rights or
liabilities. However, these characteristic features are not
without exception. In certain cases administrative rule-making
action may be particularised, retrospective and based on
evidence.
Examples of Quasi-Legislative Action-A number of functions
which have been held to be legislative are as under(a) Fixation of price;
(b) Declaration of a place to be a market yard;
(c) Imposition of tax;
(d) Establishment of a Municipal Corporation under statutory
provisions; and
(e) Extension of limits of a town area committee.
2. Rule-Decision Action or Quasi-judicial Action-Accordingto
the Committee on Minister's Powers, pure judicial action
presupposes a Lis between two or more parties and then it
106

involves four requisites-(i) Presentation of a case. (Ii) If the


dispute is a question of fact, the ascertainment " . of fact by
means of evidence given by the parties, (iii) If the dispute
between them is a question of law, the submission of legal
argument by the parties, (iv) A decision which disposes.of the
whole matter by applying the law to the facts.
Thus, in a pure judicial decision, the aforesaid four requisites
must be present. If in a case these requisites are present, it
would be a judicial decision even though it might have been
given by any authority other than a court, e.g., by a Minister,
Board, Executive Authority, Administrative Officer or
Administrative Tribunal. However, the task of interpretation of
laws is the exclusive domain of the courts.
Quasi-judicial Action-According to the "Committee on
Minister's 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." The committee
has expressed the view that a quasi-judicial decision equally
presupposes an existing lis between two or more parties and
involves (i) and (ii) requisites but does not necessarily involve
(iii) and never involves (iv). The place of (v) is, in fact, taken by
the administrative action, the character ofwhich is determined
by the Minister's choice. Itmeansthe Minister is free to take
administrative action as he may think fit. The process of (vi) is
not necessary in disposing of the matter.
Examples of Quasi-Judicial Action-The following actions are
held to be quasi-judicial action(a) Disciplinary proceeding against students.
(b) Dismissal of an employee on the ground of misconduct.
107

(c) Cancellation, Suspension, revocation or refusal to renew


licence or permit by licensing authority.
(d) Confiscation of goods under the Sea Customs Act, 1878.
(e) Power to continue detention.
(0 Seizure of goods beyond a particular period.
(g)
Determination of citizenship.
3. Rule-Applying Action or Administrative Action-According to
Mukherjee C.J., "It may not be possible to frame an exhaustive
definition of what executive function means and implies.
Ordinarily, the executive connotes the residue of governmental
functions that remains after legislative and judicial functions ace
taken away. Thus, administrative action is that action which is
neither legislative nor judicial in character. And further, "The
executive function comprises both the determination of policy
as well as carrying it into execution.This evidently includes the
initiation of legislation, the maintenance of order, the
promotion of social and economic welfare, the direction of
foreign policy, in fact the carrying on or supervision of the
general administration of the state.
Examples of Administrative Action-The following actions are
held to be administrative action(a) Issuance of directions to subordinate officers not having
the force of law.
(b) Preventive detention.
(c) Acquisition or requisition of property.
(d) Action setting up a commission of inquiry.
(e) Making a reference to a tribunal under the Industrial
Disputes Act.
(f) Assessment under the Sales Tax Act.
108

(g) An order granting or refusing to grant permission of sale in


favour of non-agriculturist under the Tenancy Act.
(h) Fact finding action.
(i) Power to issue-licence.
(j) Entering names in the Register of Police.
4. Ministerial Action-A Ministerial action is that action of the
administrative agency which is taken as a matter of duty
imposed upon it by the law devoid of any discretion or
judgment. Therefore, a ministerial action involves the
performance of a definite duty in respect of which there is no
choice. Collection of revenue may be one such ministerial
action. Furthermore, if the statute requires that the agency shall
open a bank account in a particular bank or shall prepare the
annual report to be placed on the table of the minister, such
actions of opening of the bank account and the preparation of
the annual report shall be classified as ministerial.
(b) Distinction between Quasi-Legislative & Quasi-Judicial
Action-According to Schwartz, "Ifa particular function is termed
'fegislative' 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 whereas if the function is judicial, the
affecting party has a right to a notice and hearing.
(ii) Difference between Legislative and Judicial ActionLegislation is the formulation of general rules which are to be
operative in future. There is generality about the application of
legislative provisions. Legislation gives new right or disability.
Law-making is the formulation of new policy. Judicial function in
109

contradistinction to legislative function is particularly based on


the facts of a case and declares a pre-existing right. A judicial
decision is taken on hearing'the parties and after examining the
evidence. But this is not so in case of legislative action.
(iii) Difference between Legislative and Administrative Action
The Committee on Minister's Powers distinguished between
administrative and legislative action on the ground that where
the former is a process of performing particular acts or of
making decisions involving the application of general rules to
particular cases, the latter is the process of formulating general
rule of conduct without reference to particular cases and
usually for future operation.
Thus, in State of Haryana Vs. Ram Kishan A.I.R 1988, the action
of premature termination of a mining lease was held to be
administrative, while in Union of India Vs.
Cynamide India Ltd. A.I.R. 1987, price fixation was held to be
legislative action.
The distinction between legislative and administrative action
assumes significance inter alia because of the following reasons(i) Publication-If an order is legislative in character, it has to be
published in certain manner, but it is not necessary if it is of an
administrative nature.
(ii) Need of Compliance with the Principles of Natural JusticerIf
an order is legislative in character, principles of natural justice
are not required to be followed, but if an order is an
administrative order and the authority was required to act
judicially, the principles of natural justice are required to be
observed.
110

(iii) Sub-delegation-Only in most exceptional circumstances


legislative powers can be sub-delegated, but administrative
powers can generally, be sub-delegated.
(iv) Duty to Give Reasons-If the order is administrative, duty to
give reasons applies to it, but it does not apply to legislative
orders.
(v) Distinction
bkween
Judicial,
Quasi-judicial
and
Administrative Action-On the basis of the aforesaid four
requisites a distinction is made between judicial, quasi-judicial
and administrative action. A quasi-judicial action involves the
first two determinants. It may or may not involve the third but it
never involves the fourth determinant, because the place of the
fourth determinant in fact is taken by the administrative action,
the character of which is determined by the Minister's free
choice involving expediency, discretion and policy
considerations.
Administrative action stands on the wholly different footing
from quasi-judicial as well as from a judicial action. In the case
of administrative action there is no legal obligation to consider
and weigh submissions and arguments or to collect any
evidence, or to solve any issue. The grounds upon which the
action is to be based and the procedure according to which the
action is to be taken are left entirely for determination to the
discretion of the authority concerned.
(vi) Distinction between Quasi-Judicial and Judicial Action- A
quasi-judicial action differs from a purely judicial action in the
following respects(i) A quasi-judicial authority has some of the trappings of a
111

court, but not all of them, nevertheless there is an obligation to


act judicially.
(ii) A lis inter parties is an essential characteristic ofa judicial
action but this may not be true of a quasi-judicial action.
(iii) A court is bound to follow the rules of evidence and
procedure while a quasi-judicial authority is free from such
requirements
(iv) While a court is bound by precedents, a quasi-judicial
authority is not so bound.
(v) A court cannot be a judge in its own cause (except in a
contempt case), while an administrative authority vested with
quasi-j udicial powers may be a party to the controversy but can
still decide it.
(vi) Unlike judicial decision which disposes of the whole matter
by applying law to the facts, a quasi-judicial decision is given
after applying policy to facts.
(vi) Difference between Administrative and Quasi-Judicial
Action-The Supreme Court in A. K. Kraipak Vs. Union oflndia
A.I.R. 1970. Hegde, J. observed," The dividing line between an
administrative power and quasi-judicial power is quite thin and
is obeying gradually obliterated.....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 quasi-judicial power. But in
Nagendra Nath Bora Vs. Commr. Hills Divisions A.I.R. 1958 the
112

court was of the view, "whether or not an administrative body


or authority functions as a purely administrative one or in a
quasi-judicial capacity must be determined in each case, on an
examination of the relevant statute and the rules framed
thereunder" arid the facts and circumstances of the case
determine the nature for the decision. And further: "......For
determining whether a power is an administrative power or
quasi-judicial, 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".

113

Q. 8 (a). What do you mean by the Administrative Action,


Administrative Instruction and Administrative Direction?
Explain their effects on individual's rights and enforceability.
(b) Define "Administrative Discretion". To what extent the
exercise of Administrative discretion is subject to Judicial
Control? Or
What is the Scope of Judicial Review of Administrative
discretion? Or
What are the grounds on which courts are justified to interfere
with the Administrative discretion?

Ans. Administrative Action or Applying Action-Note-For Ans.


PI. See Q.7(a)P29.
Administrative Instructions-According to Art. 73, the executive
power of the Union extends to all matters in respect of which
Parliament has power to make laws.
Similarly, according to Art. 162, the executive power of the state
extends to all matters in respect of which the state legislature
114

has powe:' to make laws. Generally, instructions are issued


undei this general administrative power of the government. But
statutory power may also be given to issue instruction.
Legal
Character
of
Instructions-Generally
speaking,
administrative rules, regulations or instructions which have no
statutory force do not create any legal right in favour of
aggrieved party and cannot be enforced through court of law
against the administration. In Fernandez Vs. State of Mysore,
A.l.R. 1963, the court held Mysore P.W.D. Code of Instructions
as not having the force of law because this was issued under no
statutory power but in the exercise of genera! administrative
power It is true that the violation of such instructions cannot be
enforced in a court of taw. yet on account of violation thereof
disciplinary action can be taken against the officer concerned.
Enforceability of Instructions-The general rule is that an
administrative instruction is not enforceable against either an
individual or administration as it does not give rise to any legal
right. It may, however, be noted that like all other general rules,
this rule is also subject to certain exceptions. In Union of India
Vs. Ram Mehar, A.l.R. 1973, the Supreme Court observed; "to
say that an administrative order can never confer any right
would be too wide a proposition. There are administrative
orders which confer rights and impose duties. It is because an
administrative order can abridge or take away rights that 'we
have imported the principle of natural justice ofaudi alteram
partem into this area". According to D.D. Basu, "Even though a
nonstatutory rule, bye -law or instruction may be changed by
the authority who made it, without any formality and it cannot
115

ordinarily be enforced through a court of law, the party,


aggrieved by its non-enforcement may, nevertheless, get relief
under Art. 226 of the Constitufi i where the non-observance of
the non-statutory rule of practice would ray-:' in arbitrariness or
absence of fair play or discrimination, particularly wh ;' the
authority making such non-statutory rule or the like comes
within th definition of'state5 U/Ati. 12". Accordingly, in a
number of cases, adminisrraTive instructions have been held to
be enforceable.Instructions may be held binding because of Art.
14 which incorporates equality clause or may be held bad
because of violation of the equaiity clause of the Constitution.
Thus, in Purshottamlal Vs. Union of India A.l.R. 1973 the facts
were that Pay Commissions's report was implemented in
respect of certain categories of employees, while others were
excluded. The court ruled that when the reference was made in
respect of all Government employee and it has accepted the
recommendations it was bound to impienie - commendation in
respect of all Government employees. "If it does no. , >./u nent
the report regarding-some employees only it commits a breach
ot Art. 14 and 16 of the Constitution."
: case of conflict between a statutory rule and an administrative
instruction, the statutory rule shall prevail. Thus, in C.L. Verma
Vs. State of MR, \.I.R. 1990 Rule 29 of the M.P. State Municipal
Service (Executive) Bodies, 1973 prescribed the superannuating
age of 58 years. The State Government issued a notification
postulating retirement on the last day of the month during
which the employee is going to be superannuated. The Supreme
Court held the notification Ultra vires and delivering the
judgment observed, "An administrative instruction cannot
compete with a statutory rule and if there be contrary
116

provisions in the rule, the administrative instructions must give


way and the rule shall prevail". The court ruled that as soon as
an employee reaches the age of 58 years, he is required to be
superannuated and cannot be kept in service till last date of the
month.
Meaning of Administrative Directions-Administrative directions
are in the nature of instructions which are issued by the
government to the various departments. Generally,
administrative directions are issued by the Superior Officers to
their subordinates and contain guidelines for the exercise of thg
powers.The executive function comprises both the
determination of the policy as well as carrying it into execution.
As the governmental functions have increased, it is necessary
for the government to issue Administrative directions for the
determination of the policy and its uniform application. In this
way directions are issued for a variety of purposes.
Administrative authorities issue directions through letter,
circulars, orders, memoranda, pamphlets, public notices, press
notes etc. Sometimes, directions may even be published in the
Government Gazette.
Kinds of Direction-Direction may be specific or general. A
specific direction is one which is applicable to a particular
purpose or a particular case. But a general direction lays down
general principles, policies, practices or procedures to be
followed in similar cases.
Enforceability of Directions -Broadly speaking, administrative
rules, regulations, instructions or directions which have no
117

statutory force do not give rise to any legal right in favour of the
aggrieved person and cannot be enforced in a Court of law
against the administration. The rule of non-enforceability is
applicable even though the administrative direction is issued
under a statutory provision. Thus, in the State of Assam Vs. Ajit
Kumar Sharma, A.I.R. 1965, the Supreme Court refused to
enforce the instructions issued by the State Government to
provode aid to the Private Colleges. In the course of judgment,
the Court said that administrative instructions do not have
statutory force, and therefore, the writ of madamus cannot be
issued to enforce them.
Generally, administrative directions do not give rise to a legal
right. However, this rule is not absolute. In Union of India Vs.
K.P. Joseph, A.I.R. 1973, the government issued an office
memorandum providing for the fixation of salary of reemployed personnel. The respondent wanted the
memorandum enforced in his case. It was contended by the
Government that the memorandum was an administrative
direction conferring no justiciable and enforceable right in
favour of the respondent. Negativing the contention, the
Supreme Court held that in this case the memorandum
conferred on the respondent the right to have his pay fixed in
the manner specified therein and it formed a part of the
conditions of service. The court saw no reason why it should not
enforce that right of the respondent by issuing the writ of the
mandamus.
Directions Inconsistent with Statute or Rules are Bad Directions cannot run counter to the statute or rules. The
position is so because directions are subsidiary to the statute or
118

rules. It is, therefore, the rules made under Art. 309 of the
Constitution cannot be amended by the administrative
directions.
Direction not to Affect Individual's Rights-Freedom ofthe
individual is of great value in a democratic society. Under our
Constitution and common law jurisprudence, any restriction
prejudicial to his interest can be placed only by law. This thing
cannot be done by the administrative instructions. As
departmental instructions without statutory force do not
constitute "law", no restraints can validly be placed on any
one's personal liberty.
Directions to Quasi-judicial and Statutory BodiesAdministrative direction cannot be issued to quasi-judicial
bodies as they are not binding on them.
(b) Definition of Administrative Discretion1. According to Davis, "Discretion implies power to make a
choice between alternative courses of action."
2. According to J. Frankfurter, "Discretion without a criterion
of its exercise is authorisation of arbitrariness."
3. According to Prof. Freund, "When we speak of
administrative discretion, we mean that a determination may
be reached, in part at least, upon the basis of consideration not
entirely susceptible of proof or disproof.......It
may be practically convenient to say that discretion includes the
case in which the ascertainment of fact is legitimately left to
administrative discretion."
Discretionary Power and Judicial Control-There are different
119

types of discretionary powers conferred on the administration.


They range from simple ministerial functions like maintenance
of birth and death register, regulation of business activity,
acquiring property for a public purpose, investigation, seizure,
confiscation, and destruction of property, externment or
detention of a person or subjective satisfaction of the
administrative authority and the like.
Discretion is principal source of creativeness in government
and in law, 'wide discretion must be in all administrative activity
but at the same time it is necessary to confine structure and
check discretion to uphold the principle of rule of law in
administration lest cases of manifest injustice go unheeded and
unpunished.
Scope of the Judicial Review of Administrative DiscretionThere
are various ways to control discretionary powers. One is the
application of procedural safeguard as embodied in the natural
justice. The other is the recognition and application of the
doctrine of excessive delegation in relation to delegated
legislation. Besides these, there are various other grounds
which are basically substantive to control the actual exercise of
discretionary powers through constitutional remedies, namely,
writs.
Grounds of Interference-The Courts in India justify interference
with discretionary powers exercised by the administration in
the following two circumstances1. Failure to exercise discretion, and
2. Abuse of discretion.
120

1. Failure to Exercise Discretion-The circumstances giving rise


to such type of flaw are follovving(i) Acting Mechanically-Statutory discretion cannot be said to
have been exercised by an authority when it passes an order
mechanically without considering facts and circumstances of
each case. Such a situation may happen when the authority has
taken only one view of its power or has become lazy or has
relied on its subordinates.
In Merugu Satya Narayana Vs. State of A.P., A.I.R. 1982, the
affidavit in justification of detention was filed by the
subordinate and not the detaining authority. The court said that
the subordinate authority "does not say how he came to know
about the subjective satisfaction of the District Magistrate. He
does not say that he has access to the file or he is making the
affidavit on the basis of the record maintained by the District
Magistrate." The Court held that the detaining authority had
acted mechanically and abdicated its power to
the.subordinates.
(ii) Abdication of Functions-Sometimes it may happen that
discretion has been conferred on an authority but it leaves it to
be exercised by the subordinates without acting itself. In such a
fact of situation an order made by the subordinate is bad. A
situation of "abdication of functions" arose in Manik Chandra
Vs. State, A.I.R. 1973, where the scheme of nationalisation of
certain bus routes was published by the Manager of the State
Road Transport Corporation without the corporation itself
considering the scheme, though the relevant statute provided
that it was the corporation which was to consider the scheme.
121

(iii) Imposing Fetters on the Exercise of Discretion^An


authority having discretion must exercise the same alter
considering individual cases. However, there is failure to
exercise discretion on the part of the authority concerned, if
instead, that authority imposes fetters on its discretion by
adopting fixed rules of policy to be applied in all cases coming
before it. In Keshavan Bhaskaran Vs. State of Kerala, the
relevant rule laid down that no school leaving certificate would
be given to any person unless he has completed fifteen years of
age. However, discretion was given to the Director to grant
exemption from this rule in deserving cases under certain
circumstances. But the Director had made an invariable rule of
not granting exemption unless the deficiency in age was less
than two years. It was held that the rule of policy was contrary
to law.
(iv) Acting under Dictation-Sometimes, it so happens that an
authority entrusted with the discretion does not exercise the
discretion but acts under a dictation by a superior authority. In
law, such a situation amounts to non-exercise of its discretion
by the authority and is bad. Although tfrc authority purports to
act on its own but in effect the power is exercised by another.
The authority concerned does not apply its mind and take
action of its own judgment, even though it was so intended by
the statute.
(v) Non-application of Mind-Where an authority is given
discretion, the said authority must exercise the same after
applying its mind to the facts and circumstances of the case in
122

hand. In Emperor Vs. Sibnath Banerji A.I.R. 1945, an order of


preventive detention was issued in a routine manner on the
recommendation of police authorities and the Home Secretary
had not applied his mind and satisfied himself that the
impugned order was called for. The order of preventive
detention was quashed on the ground of non-application of the
mind by the Home Secretary: It was held that Home Secretary's
personal satisfaction was a condition precedent to the issue of
detention order, otherwise it would be liable to be set aside.
2. Abuse of Discretion-The circumstances from which abuse of
discretion may be inferred are following(i) Exceeding Jurisdiction-An administrative authority is
required to exercise discretionary power within the limits of the
statute. An action going beyond what is authorised by law is
ultra vires. For Example; if the administrative authority is
empowered to control the price of bread it will be in excess of
its jurisdiction to control the price of butter. The entire order
will be ultra vires and void for exceeding jurisdiction. Similarly, if
under the relevant regulation the management is empowered
to dismiss a teacher, the said power cannot be exercised to
dismiss the principal.
(ii) Irrelevant Considerations-A discretionary power conferred
on an administrative authority by a statute must be exercised
on relevant and not on irrelevant or extraneous considerations.
In Ram Manohar Lohia Vs. State of Bihar, A.I.R. 1966, under the
Defence of India Rules, the authority was empowered to detain
a person to prevent subversion of "public order". The petitioner
was detained with the view to prevent him from acting in a
123

manner prejudicial to the maintenance of "law and order". The


court set aside order of detention. In the opinion of the Court,
the concept of "law and order" was wider than the concept of
"public order".
(iii) Leaving out Relevant Considerations- If the administrative
authority fails to take into account relevant considerations, the
exercise of power would be bad. In Ashadevi Vs. K. Shivraj, A.I.R.
1979, the petitioner was detained with a view to prevent him
from engaging in transporting smuggled goods. The order of
detention was based on the detenue's confessional statement
made before the Customs Authorities. But the fapts having
bearing on the question whether his confession was voluntary
or not were not placed before the detaining authority. As.it was
not done, the order was held to be bad and invalid.
(iv) Mixed Considerations-Sometimes, it may happen that the
order is not wholly based on irrelevant or extraneous
considerations. It is founded partly on relevant and existent
considerations and partly on irrelevant or non-existent
considerations. Judicial pronouncements do not depict a
uniform approach on this point.
In Shibban Lai Vs. State of U.P. A.I.R. 1954, the petitioner was
detained on two grounds. Later the government revoked an
order of detention on one of the grounds but continued
detention on the other ground. The Court quashed the original
detention order.
(v) Mala Fide-ln its popular sense, mala fide means dishonest
intention or corrupt motive.
124

(vi) Improper Purpose-If statutory power is conferred for one


purpose but it is execised for a different purpose, that is abuse
of power, the action may be quashed.
In Nalini Vs. District Magistrate A.I.R. 1957, the relevant statute
power was conferred on the authority to rehabilitate persons
displaced from Pakistan as a result of communal violence but it
was exercised to accommodate a person who had come from
Pakistan on a Medical Leave. The order was set aside.
(vii) Colourable Exercise of Power-Where the authority resorts
to exercise power ostensibly for the authorised end, but in
reality for some other purpose it is called colourable exercise of
power.
(viii) Reasonable Exercise of Power-A discretionary power
conferred on an administrative authority is required to be
exercised reasonably. Where the power is exercised
unreasonably there is abuse of power and the action of the
administrative authority will be ultra vires

Q. 9. What do you mean by the term "Rules of Natural


Justice"? What are the principles of natural justice? Discuss
fully.
Or
"No one should be the Judge in his own cause." Explain this
rule of natural justice with reference to case law. Or
Explain the rule of bias along with its various kinds. Or
"No one can be condemned Unheard". Explain this rule with
125

reference to the rule of hearing. Or


Explain fully the maxim : "Audi Alteram Partem". Explain the
exceptions to this rule, if any.

Ans. Definition of Rules of Natural Justice-The term natural


justice has been defined by the various jurists as under1. According to J.R.N. Mishra, "Natural Justice is an ethicolegal concept which is based on natural feeling of Human Being.
Rules of natural justice have developed with the growth of civ
ilization and the content there'of is often considered as a
proper measure of the level of civilization and Rule of Law
prevailing in the community. It is great principle of
humanisation which informs law and procedure with fairness
and impartiality".
2. According to J. Dowrick, "Natural justice has meant many
things to many writers, lawyers and systems of law including an
approximate synonym for divine law, and also a form of just
gentium or the common law of nations."
3.

According to Lord Reid, "In modern times opinion have


126

sometimes been expressed to the effect that natural justice is


so vague as to be practically meaningless. But I would regard
these as tainted by the perennial fallacy that because
something cannot be cut and dried or nicely weighed or
measured therefore it does not exist".
4. According to J. Krishna Iyer, "Inde'ed, natural justice is a
pervasive facet of secular law where a spiritual touch enlivens
legislation, administration, and adjudication to make fairness a
creed of life. It has many colours and shades, many forms and
shapes and save where valid law excludes it, applies when
people are affected by acts of authority. It is the bone of
healthy government, recognised from the earliest times and not
a mystic testament of judge-made law. Indeed from the
legendry days of Adam and of Kautilya's Arthshastra, the rule of
law has had this stamp of natural justice which makes it social
justice."
On the analysis of the above definitions of natural justice, we
can say that natural justice is an ideal element in administrative
law. In this sense natural justice is known as "natural law",
"universal law", "divine justice", "universal justice", or "fair play
in action".
Principles of Natural Justice-In R.S. Dass Vs. Union of India,
A.I.R., 1987, the Supreme Court stated, "it is well established
that rules of natural justice are not
rigid rules; they are flexible and their application depends upon
the setting and background of statutory provisions, nature of
127

the right which may be affected and the consequences which


may entail, its application depends upon facts and the
circumstances of each case".
Natural justice represents higher procedural principles
developed by judges which every administrative agency must
follow in taking decision adversely affecting the rights of the
private individuals. The conepts of natural justice entails two
principles, namely1. Nemo Judex in Causa Sua-No one shall be the Judge in Ins
own cause or the deciding authority must be impartial and
without bias Rule u^ainst Bias.
2. Audi Alteram Partem-Hear the other side, or both the sides
must be heard, or no man should be condemned unheard or
that there must be fairness on the part of deciding authorityRule of hearing or fair hearing.
1. Rule Against Bias-The first principle of natural justice is the
rule against bias. It means that the deciding authority must be
impartial and neutral. The bias disqualifies an individual from
acting as judge flows from the following two principles(i) No one should be a Judge in his own cause; and
(ii) Justice should not only hedone but must appear to be
done.
Meaning of Bias-According to J. Mukerjee, "A predisposition to
128

decide for or against one party without proper regard to the


true merits of the dispute is bias. In Frnaklin Vs. Minister of
Town and Country Planning (1948) AC87,
Lord Thankerton defines bias, "My Lords, I could wish that the
use of the word bias' should be confined to its proper sphere.
Its proper significance in my opinion is to denote a departure
from the standard of even handed justice which the law
requires from those who occupy judicial office, or those who
are commonly regarded as holding a quasi-judicial office, such
as arbitrator".
Principle Explained-lt is well settled principle of law that justice
should not only be done but must appear to be done. Justice
can never be seen to be done if a man acts as a judge in his own
cause or is himself interested in its outcome. This principle is
applicable not only to judicial proceedings but aiso to quasijudicial as well as administrative proceedings.
It is minimum requirement of natural justice that the authority
must consist, of impartial persons who are to act fairiy and
without prejudice and bias. A decision which is the result of bias
is a nullity and the trial is "coram non-judicie".
Kinds of Bias-There are five types of bias(i) Pecuniary bias;
(ii) Personal bias;
(iii) Subject-matter bias;
(iv)Departmental bias; and
(v) Policy bias.
(i) Pecuniary Bias-As regards pecuniary bias 'the least pecuniary
129

interest in the subject-matter of litigation will disqualify any


person from acting as judge;.
According to Griffith and Street, a pecuniary interest, however
slight, will disqualify, even though it is not proved that the
decision is in any way affected". In Bonham Case (1610), Dr.
Bonharn, a Doctor of Cambridge University was fined by the
College of Physicians for practising in the city of London without
the licence of the College. The statute under which College
acted provided that the fines should go halfto the King and half
to the College.Adjudicating upon the claim. Coke, C.J.,
disallowed the claim as the College had a financial interest in its
own judgment and was a Judge in own cause.In India also, the
same principle is accepted. In Manak Lai Vs. Dr. Prem Chand,
A.I.R. 1957, Gajendragadkar, J. observed: "It is obvious that
pecuniary interest, however, small it may be in a subject-matter
of the proceedings, would wholly disqualify a member from
acting as a .fudge".Again in Jeejeebhoy Vs. Asstt. Collector,
Thana A.I.R. 1965, Chief Justice Gajendragadkar reconstituted
the Bench on the objection that one of the members of the
Bench was member of the co-operative society for which the
land in dispute had been acquired.In Visakapatnam Co-op.
Motor Transport Ltd. Vs. Bangaruraju A.I.R 1953, a co-operative
society wanted a permit. The collector was the President of that
society and at the safne time he was also the Chairman of the
Regional Transport Authority granting permit in favour of the
society. The decision was quashed by the Court as it was in
violation of the principles of natural justice.
(ii) Personal Bias- Personal bias arises in a number of
circumstances involving a certain relationship equation
130

between the deciding authority and the parties which


incline him unfavourably or otherwise on the side of or.e of the
parties before him. Here a judge may be a relative, friend or
business associate of a party. He may have some personal
grudge, enmity or grievance or professeional rivalry against him.
In view of these factors, there is every likelihood that the Judge
may be biased towards one party or prejudiced towards the
other. However, the list is illustrative and not exhaustive.
Thus, in Mineral Development Ltd. Vs. State of Bihar, A.I.R.
1996, the petitioners were granted mining licence for 99 years
in 1947. But the Minister who had political rivalry with the
petitioners cancelled the licence. This action of the government
was challenged on the ground of personal bias. The challenge
was accepted by the Court and it was held that there was
personal bias against the petitioners and the Minister was
disqualified from taking any action against the petitioners.
In A.K. Kraipak Vs. Union of India A.I.R. 1970, one Naquishbund
was a candidate for selection to the Indian Foreign Service and
was also a member of the Selection Board. Naquishbund did not
sit on the Selection Board when his name was considered.
Naquishbund was recommended by the Board and he was
selected by the Public Service Commission. The candidates who
were not selected challenged the selection of Naquishbund on
the ground that principles of natural justice were violated.
The Supreme Court quashed the selecion and observed : "It is
against all canons of justice to make a man Judge in his own
131

cause. !t is true that he did not participate in deliberations of


the Committee when his name was considered. But then the
very fact that he was member of the Selection Board must have
its own impact on the decision of the Selection Board. The real
quesion is not whether he was biased. It is difficult to prove the
state of mind of a person. Therefore, what we have to see is
whether there is a reasonable ground for believing that he Was
likely to have been biased.
(iii) Subject-matter Bias-Subject-matter bias may arise when
the Judge has a general interest in the subject-matter.
According to Griffith and Street, "Ohly rarely will the bias
invalidate proceedings". A mere general interest in the general
object to be pursued would not disqualify a Judge from deciding
the matter. There must be some direct connection with the
litigation.
Proceedings were invalidated on the ground of subject-matter
bias in Guilapalli Nageshwar Rao Vs. A.RS.R.T., A.I.R. 1959. In
this case the Supreme Court quashed the decision of Andhra
Pradesh .Government, which Nationalised Road Transport, on
the ground that the Secretary of the Transport Department who
gave hearing was interested in the subject-matter. But the
position is different in America and England where
predisposition in favour of policy in public interest i;< not held
as legal bias invalidating administrative action.
(iv) Departmental Bias-Departmental bias is inherent in
administrative process. If it is not checked it will negate the
concept of fairness in administrative process. In Guilapalli
132

Nageshwar Rao Vs. Andhra Pradesh State Road Transport


Corporation (Guilapalli.I) A.I.R. 1951, Transport Ministry issued
a direction to the Secretary of the Transport Department to
hear objections U/S. 68(a) of the Motor. Vehicles Act to the
proposed scheme of Nationalisation. 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 accepted the contentions of the petitioner that
the officer who heard the objections was 'in substance' one of
the parties to the dispute and this was against the principles of
natural justice.
But in Kondala Rao Vs. A.P. Transport Corporation, a scheme of
nationalisation of bus services was prepared by the Transport
Corporation. The objections were invited and they were heard
by the Minister of Transport, who had presided over a meeting
of an official committee a few days earlier in which
nationalisation was favoured. It was pleaded that the Minister
had prejudiced the issue and as such he was disqualified to
decide the objections made against the proposed scheme of
nationalisation. The court rejected the plea on the ground that
the decision of the Committee was not 'final and irrevocable'
but merely a policy decision, and therefore, no question of bias
was involved.
The problem of departmental bias arises in different situations
when the function of Judge and prosecutor are combined in the
same department. Thus, in Hari Vs. Dy. Commr. of Police, A.I.R.
1950, an externment order was challenged on the ground that
since the policy of department which initiated the proceeding
and the department which heard and decided the case
wherethe same, and therefore, the element of departmental
133

bias invalidated the administrative action. The Court rejected


the challenge and held that there was no question of bias
because the two functions were discharged by two separate
officers.
In State of U.P. Vs. R.S. Sodhi, A.I.R. 1994, the question was
whether State police should investigate into the alleged fake
encounters. Allegations were levelled against local police.
According to the Suprmeme Court investigation into the matter
by independent agency was desirable. Accordingly, the Court
directed C.B.I, to investigate into the allegation.
(v) Policy Bias-Sometimes it happens that the Minister or the
officer concerned may announce beforehand the genera! policy
which he intends to follow. The question is whether such a
statement would disqualify him from acting as the deciding
authority on the ground that this indicates his partiality to the
issues in dispute.
According to Wade, Ministerial or departmental policy cannot
be regarded as disqualifying bias.
Policy bias is inherent in the administrative process and it
cannot be eliminated.' !t is useless to condemn a public officer
on the ground of bias merely because he is pre-disposed in
favour of some policy in public interest. In this respect a
.statement of Frank J., is often quoted"If, however, 'bias' and 'partiality' be defined to mean the total
absence of preconceptions in the mind of the Judge, then no
one has ever had a fair trial and no one will. The human mind,
even, at infancy, is no blank piece of paper. We are born with
predispositions.........Much harm is done by the myth that,
merely by taking the oath of office as a Judgfe, a man ceases to
be human and strips himself of all partialities, becomes a
134

passionless thinking machine.


Audi Alteram Partem : Rule of Hearing-The audi alteram
partem rule means that no one should be condemned unheard.
In a civilsed society it is assumed that a person
against whom any action is sought to be taken, or whose right
or interest is being affected, shali.be given a resonable
opportunity to defend himself. This jural postulate is the Kernel
of natural justice. Prof. H.W.P. Wade rightly says that audi
alteram partem embraces the whole notion of fair procedure or
due process. "A party is not to suffer in person or in purse
without an opportunity of being heard". It is the first principle
of civilised jurisprudence'and is accepted by the laws of Men
and God. In short, the principle is that before an order is passed
against any person reasonable opportunity of being heard must
be afforded to him. Generally, the maxim includes two
ingredients-(i) Notice; and (ii) Hearing.
(i) Notice-A basic principle of natural justice is that before any
action is taken, the affected person must be given notice to
show cause against the proposed action and seek his
explanation. It is a sine qua Jion of fair hearing. Any order
passed without giving notice is against the principles of natural
justice and is void-ab-initio.
(a) Adequacy of Notice-It is not enough that notice in a given
case be given, but it must be adequate also. The question of
adequacy of notice depends upon the facts and circumstances
of each c-ise. However, a notice in order to be adequate must
135

contain the following timings(i) Time, place and nature of hearing;


(ii) Legal authority andjurisdiction underwhich hearing is to be
held;
(iii) Matters of fact and Law as regards charges. '
The adequacy of the notice may vary according to the nature of
the proceedings, but it is a question for the court to determine.
Natural justice is violated where the
charge are vague and no material facts are disclosed to explain
them. In a number of cases, proceedings have been quashed
because of inadequacy of notice, for example, in J. Vilangandan
Vs. Executive Engineer A.I.R. 1978, the Executive Engineer
proposed to black list a contractor. He gave a notice to him. But
the Supreme Court found that notice was inadequate as it did
not contain words to indicate clearly to the contractor that it
was proposed to debar him as defaulter from taking any
contract in future under the Department.
(b) Reasonable Opportunity-It may be noted that the notice
must give a reasonable opportunity to comply with the
requirements mentioned in it. Thus, to give 24 hours time to
dismantle a structure alleged to be in a dilapidated condition is
not proper and the notice is not valid.
(ii) Hearing-The second requirement of the 'audi alteram
partem' maxim is that the party concerned must be given an
opportunity of being heard before any adverse action is
taker,against him Ridge Vs. Baiwin (1964) AC 40, it has been
rightly described as the 'magna carta' of natural justice. In this
136

case, a Chief Constable had been prosecuted but acquitted on


certain shares of conspiracy. While delivering the judgment
certain remarks were made by the presiding judge against the
plaintiff's character as a Senior Police Officer. Considering these
remarks, the Watch Committee dismissed the plaintiff from
service.
The Court of Appeal decided that the Watch Committee was
acting as an administrative authority and was not exercising
judicial or quasi-judicial power, and therefore, rules of natural
justice did not apply to the proceedings of dismissal. Reversing
the decision of the Court of Appeal, the House of Lords by a
majority of 4 : 1 held that the power of dismissal could not be
exercised without giving a reasonable opportunity ofbeing
heard and without observing the principles of natural justice.
The order of dismissal was, therefore, not upheld.
In Maneka Gandhi Vs. Union of India, A.I.R. 1978, the passport
of the petitioner was impounded by the Government of India 'in
public interest'.No opportunity was afforded to the petitioner
before taking the impugned action.The Supreme Court held that
the order was violative of the principles of natural justice.
In Swadeshi Cotton Mills Vs. Union of India, A.I.R. 1981, the
Government of India by exercising its power conferred on it by
S. 18 (A) of the Industries (Development and Regulation) Act,
1951 took over the management of the petitioner Company.
The Company challenged the said action, inter alia^ on the
ground of non-observance of the principle of audi alteram
partem. The High Court of Delhi held that the requirements of
prior notice and hearing were excluded by the statute. Allowing
the appeal, the Supreme Court held that "in order to ensure fair
play in action it was imperative for the government to comply
137

substantially with this fundamental rule of prior hearing before


passing the impugned order".InShridhar Vs. Nagarpalika,
Jaunpur, A.I.R. 1990, the petitioner was appointed by the
municipality as Tax Inspector. The Commissioner set aside the
said appointment without issuing any notice or giving an
opprotunity of hearing. The Supreme Court quashed the order
of the Commissioner and observed that it was an elementary
principle of natural justice that no person should be condemned
unheard.
(a) Oral Hearing-A person cannot claim the right to oral or
personal hearing, unless such right is conferred by the statute
itself. In the absence of such statutory requirement, the general
rule propounded by the Supreme Court of India is that natural
justice does not necessarily involve a right to oral hearing. "1
am not prepared to accept the contention that a right to be
heard orally is an essential right of procedure even according to
the rules of natural justice. That right to defence may be
admitted, but there is nothing to support the contention that an
orai hearing is compulsory.
(b) Fair Hearing -While fair opportunity to be heard should be
given to the parties, the principle does not imply, unless
expressly provided by the statute, a right to a personal hearing.
The requirements of natural justice are met only if opportunity
to represent is given in view of the proposed action. As a
general rule, it is settled that even where the statute is silent
about the procedure to be followed by an administrative
authority,which determines the rights of individuals or inflicts
civil consequences upon them, natural justice would require a
minimum of fair procedure.
138

A hearing to be fair must fulfil following three requiremcts(i) The adjudicating authority should receive all the relevant
material which the individual seeks to produce;
(ii) It should disclose all the facts, evidence or material which
the authority seeks to use against the individual concerned in
making its decision;
(iii) It should afford to the individual concerned an opportunity
to - rebut all such facts or material.
Requirements of Fair Hearing-Again, a fair hearing requires
following, rights to be given to the person affected(i)'Cross-examination-Cross-examination is one of the most
efficacious methods of establishing truth and exposing
falsehood. But it does not necessarily mean that the right of
cross-examination of witnesses should be given to the person
concerned. It depends upon the facts and circumstances of each
case and to the statutory provisions. Generally, in cases of
domestic inquires by employers against their employees in the
area of labour management relations, and also in disciplinary
proceedings under Art. 311 of the Constitution of India against
civil servants or by a statutory corporation against its
employees, the right of cross-examinatiofi of witnesses is
regarded as an essential content of natural justice and fairness.
In Town Area Committee Vs. Jagdish Prasad, A.I.R. 1978, the
department submitted the chargesheet, got explanation and
thereafter straight away passed the dismissal order. The Court
set aside the order holding that the rule of fair hearing includes
an opportunity to cross-examine witnesses and lead evidence.
139

(ii) Legal RepresentationOrdinarily, the right of representation


by a lawyer in any administrative proceeding is not considered
to be indispensable part of natural justice as oral hearing is not
included in the minima of fair hearing. But speaking generally, it
can be said that the right to be represented by counsel has been
recognised in Administrative Law. Prof. Allen rightly says,
"Experience has taught me that to deny persons who are unable
to express themselves the services of a competent spokesman
is a very mistaken kindness".
(iii) Right to Know Evidence-The right to know the materials on
which the authority is going to make a decision is a part of the
right to defend oneself. There are several judicial
pronouncements when non disclosure of evidence to the
affected has been heid to be fatel to hearing proceedings.
The general prinpiple is that the adjudicating authority must
base its decision on the material known to the parties. No
evidence can be taken into consideration which has not been
known to the party concerned and for which no opportunity has
been afforded to rebut. Therefore, evidence must not be given
behind the back of the other party but in his presence, so that if
written evidence is given it must be made available to the other
party to contradict it.
(iv) Opportunity of Being Heard : Fair Trial- The requirement of
the opportunity ofbeing heard is a part of fair procedure. Any
order passed by the adjudicating authority withoutproviding the
opportunity ofbeing heard to the party concerned is bad and
can be set aside. In administrative proceedings whereby some
140

person is going to be affected, the opportunity ofbeing heard


has special importance and utility. There are a number of
statutes providing for the opportunity of being heard. Thus, the
Commission of Inquiry Act provides that if any person is likely to
be prejudicially affected by an inquiry made under this Act, such
person must be given "a reasonable opportunity of being
heard".
The opportunity to be heard requires two things(a) The opportunity must be given;
(b) The opportunity must be reasonable.
Thus, reasonable opportunity of being heard should be
provided.
Exceptions to the Rule of Natural Justice or Audi Alteram
Partem-Although the geneal rule under the Administrative law
is that a person affected by the administrative action is entitled
to claim natural justice yet this requirement may be excluded
under some exceptional circumstances Thus, under the
following circumstances the requrements of the compliance of
the principles of Natural justice may be excluded1. Statutory Exclusion-The principles of natural justice do not
supplant the law but supplement it. It follows that where the
statute is silent about the compliance with the principles of
natural justice, such statutory silence is taken to imply
observance of the principles of natural justice. However, where
a statute excludes the application of any or all the rules of
natural justice, then the Court cannot ignore statutory mandate
and read into the concerned provision the requirement of
natural justice.
141

Thus, in Union of India Vs. J.N. Sinha, A.I.R. 1971, S.C. 40, the
competent authority acting under Rule 56 (J) of the
Fundamental Rules passed order compulsorily retiring a
government servant. It did not provide forgiving any
opportunity to the government servant concerned to show
cause against the proposed action. The Supreme Court upheld
the said decision.
2. Legislative Function-Legislative action, plenary or
subordinate, is not subject to the rules of natural justice. This is
so because these rules lay down a policy without reference to
particular individual. A legislative action, for example, price
fixing, is a direction of general character, not directed against a
particular person or individual manufacturer or trader. There is
no question of invoking principles of natural justice in such
cases.
3. Emergency-hi exceptional cases of urgency or emergency
where prompt and preventive action is required, the principles
of natural justice need not be observed.
According to Krishna Iyer J., "If to condemn unheard is wrong, it
is wrong except where it is overborne by dire social necessity."
Thus, where a dangerous building is required to be demolished
to save human lives, or where a Banking company is required to
be wound up to protect the interest of depositors, or where a
passport is required to be impounded in public interest, or a
trade dangerous to society is to be prohibited, dire social
necessity requires exclusion of the elaborate process of predecisional hearing.
142

4. Public Interest-The requirement of notice and hearing may


be excluded where prompt action is to be taken in the interest
of public safety, public health or public morality. In cases of
pulling down property to extinguish fire, destruction of
contagious plant or animal life, destruction of unwholesome
food; etc., action has to be taken without giving the opportunity
of hearing. Nevertheless, hearing may be given in some of these
situations after the action has been taken as a corrective
measure to see whether mistake has been committed. In
Maneka Gandhi Vs. Union of India, A.I.R. 1978, S.C. 597, the
Supreme Court conceded that a passport may be impounded in
public interest without compliance with the principles of natural
justice but as soon as the order impounding the passport has
been made, an opportunity of postdecisional hearing, remedial
in aim, should be given to the person concerned. In this case it
has also been held that "public interest' is a justiciable issue and
the determination of the administrative authority about it is not
final.
5. Impracticability-Judicial approach in applying the rules of
natural justice to fact-situations is not theoretical but
pragmatic. Where the number of persons is so large that it is
not practicable to give all of them the opportQnity ofbeing
heard, the Court does not insist on the observance of the
principles of natural justice.
Thus, in R. Radha Krishanan Vs. Osmania University, A.I.R. 1974
A.P. 283, the entire M. B. A. entrance examination was
cancelled by the University because of mass copying, the Court
held that notice and hearing to all the candidates is not
practicable in such situation.
143

6. Academic Evaluation-Where a student is removed from an


educational institution on the grounds of unsatisfactory
academic performance, the requirement of pre-decisional
hearing is excluded.
7. Interim Disciplinary Action-Where disciplinary action is
preventive in nature the observance of the rules of natural
justice is excluded. Thus, in Abliay Kumar Vs. K. Srinivasan A.I.R.
1981, Del. 381, the institution passed an order debarring the
student from entering the premises of the institution and
attending the classes till the criminal case against him for
stabbing a co-student is under consideration. The validity of this
order was challenged on the ground of denial of the principles
of natural justice. Rejecting the contention, the Delhi High Court
ruled that such an order could be compared with an order of
suspension pending enquiry which is preventive in character in
order to maintain peace on the campus, and therefore, the
principles of natural justice not attracted.
8. Contractual Transaction-In the State of Gujrat Vs. M.P.
Shah Charitable Trust, (1994) 3 SSC 552, the Supreme Court
held that the principles of natural justice are not attracted in
case of termination of an arrangement in any contractual field.
The
reason
is
clear
that
termination
of
an
arrangement/agreement is neither a quasi-judicial nor an
administrative.act. Hence the question of duty to act judicially
does not arise.
9.

"Useless Formality" Theory-"Useless formality" theory is


144

another exception for exclusion of the principles of natural


justice. Where on the admitted or undisputed facts only one
conclusion is possible and under the law only one penalty is
permissible, the court may not insist on application of the
principles of natural justice because it would be futile to order
its observance vide: S.L. Kapoor VS. Jagmohan, (1980) 4 SCC
379, P. 395. Therefore, where result would not be different, and
it is demonstrable beyond doubt, order of compliance with the
principles of natural justice will not be justified.
Q. 10. (a) What do you mean by the Reasoned Decision or
Speaking order?
Ans. Reasoned Decision-In U.S.A. the right to reasoned decision
arises from the provisions of the Administrative Procedure Act
and also from the "Due Process Clause" of the Constitution. In
England the provisions of the Tribunals and Enquiries Act, 1977
require an agency to give reasons only when demanded.
In India apart from the requirement, if any, of the statute
establishing the administrative agency, there is no requirement
for the administrative authority to give reasons. The Supreme
Court in Tafa Chand Vs. Municipal Corpn. Delhi (1977) 1 SCC
472: A.I.R. 1977, S.C. 567, also held that there is no principle of
natural justice requiring a statutory tribunal to give reasons in
every case. In order to develop faith in administrative justice, it
is essential as a general requirement that every administrative
agency must give reasons at least when demanded.
Meaning of the Reasoned Decision-It means a decision which
must contain reasons in support of it. In India natural justice
145

postulates that a party has right to know not only the decision
but also the reasons for that decision. But this is not a
universally established rule although in certain situations it is
rigidly enforced. The duty to give reasons may be statutory or
non-statufory. Where the duty is required by the statute, the
authority is bound to give reasoned decisions in all cases to
which that provision applies. But in the absence of statutory
requirement, the Courts have been emphatic to advise judicial
or quasi-judicial bodies to assign reasons in such a form as to
justify the order being called what are described as speaking
orders. A speaking order means an order which speaks by itself.
Reasoned Decisior.-It is one of the principles of natural justice
that a party is entitled to know the reasons for the decision
apart from the decision itself. It should be noted that this
requirement to give reasons for the decision is quite a new
approach to administrative law, Becuase, it is a prevailing law in
India that quasi-Judicial bodies need not give reasoned decision.
In U.S.A. the right to have a reasoned decision arises from the
provisions of the "Administrative Procedure Act" and also from
the "Due Process Clause" of the Constitution.
In England, the Franks Committee while dealing with the
importance of reasoned decision, made the following
observations
"Almost all witnesses have advocated the giving of reasoned
decisions. We are convinced that if tribunal proceedings are to
be fair to the citizens, reasons should be given to the fullest
possible extent. A decision is apt if the reasons for it have to be
in writing because the reasons for it are then more likely to
146

have been properly thought out. It is true that in simple type of


cases, particularly when the decision turns on the expert
judgment of the tribunals itself rather than on the application of
stated law to prove fact, it may only be possible to give a brief
statement of reasons, for example, that the evidence of one
party has been referred to the evidence of the other or that
having heard the argument and inspected the premises the
tribunal considers that the rent should be X. But generally fuller
reasons for decision can be given".
S. 12 of the Tribunals and Inquiries Act, 1958 provides for giving
of reasons by those bodies if so requested by the parties, unless
grounds of national security require to the contrary.
Importance of Reasoned Decision-While dealing with the
importance of reasoned decisions, Subba Rao, J. in M.P.
Industries Vs. Union of India, A.I.R. 1966 S.C. 671, observed"The least that a Tribunal can do is to disclose its mind. The
compulsion of disclosure guaranteed consideration. The
condition to give reasons introduces clarity and excludes, or at
any rate minimises arbitrariness, it gives satisfaction to the
party against whom the order is made".
In Maneka Gandhi Vs. Union of India A.I.R. 1978 S.C.C. 248,
while emphasising on the importance of reasoned decision,
Bhagwati, J. of the Hon'ble Supreme Court (-Later C.J.) observed
that the Central Government was wholly unjustified in
withholding the reasons for impounding the passport from the
petitioner and in this way not only a breach of statutory duty
was committed but it also amounted to denial of the
opportunity of hearing to the petitioner.
147

In Siemens Engineering and Manufacturing Co. Vs. Union of


India A.I.R. 1976, S.C. 1785, the Hon'ble Supreme Court
emphasised on the necessity of giving reasoned decisions. The
Court observed that the rule requiring reasons to be given in
support of an order is like the principle of audi alteram partem,
basic principle of natural justice which must inform every quasijudicial proceeding and this rule must be observed in its proper
spirit and mere pretence of compliance with it would not satisfy
the requirement of law.
In Sunil Batra Vs. Delhi Administration, A.I.R. 1978 S.C. 1675, the
Hona'ble Supreme Court has held that under S. 56 of the Prisons
Act, 1894, there is an implied duty on the Jail Superintendent to
give reasons for putting bar fetters on a prisoner. If no reasons
have been assigned then the requirements of Art. 21 of Indian
Constitution would not be satisfied.

Q. 10 (b). What do you mean by the Doctrine of PostDecisional Hearing? In which case it was first propounded and
by whom? What is the justification of this doctrine? Or
Write a short note on the doctrine of Post-Decisional Hearing.
Ans. Meaning of the Post Decisional Hearing-Although one of
the requirement of the principles of Natural Justice is that 'no
one should be condemned unheard'. But some time it is not in
148

the public interest that this hearing should be given to the


accused before the giving of the decision. So in the interest of
the public at large the hearing may also be given after the
decision given. So if in a given case prior hearing would frustrate
the object and purpose of the exercise of power, it can be
dispensed with but in that event it must be substituted by postdecisional hearing.
In which Case the Doctrine was First Propounded?-The doctrine
of post-decisional hearing was first of all propounded by the
Supreme Court in Maneka Gandhi Vs. Union of India A.I.R. 1978,
S.C 597. In this case, the Supreme Court laid down the principle
that if in the 'public interest' immediate action was
indispensable and it is impracticable to afford a hearing before
the decision, it should be afforded after the decision.
In Liberty Oil Mills Vs. Union of India A.I.R. 1984 S.C. 1271, an
order of investigation was challenged on the ground of noncompliance with the principles of natural justice. The Supreme
Court observed that "It may be that the opportunity to be heard
may not be pre-decisional; it may necessarily have to be postdecisional where the danger to be averted is imminent, or the
action to be taken can brook no delay. If an area is devastated
by flood, one cannot wait to issue show cause notice for
requisitioning vehicles to evacuate population. If there is an
outbreak of epidemic, we presume one does not have to issue
to show-cause notices to requisition beds in hospitals, public or
private. In such situations, it may be enough to issue postdecisional notices provding for an opportunity.
149

In Trehan Vs. Union of India, A.I.R. 1989, S.C. 568, a government


company issued a circular altering prejudicially the terms and
conditions of its employees without giving an opportunity of
hearing. The validity of the circular was challenged on the
ground of violation of the principles of natural justice. The
company argued that after the impugned circular was issued, an
opportunity was given to the employees with regard to the
alteration made by the circular.In this way, a plea of postdecisional hearing was put forward. Rejecting the contention,
the Supreme Court observed, "In our opinion, the postdecisional opportunity of hearing does not subscribe to the
rules of natural justice. The authority who embarks upon a postdecisional hearing will normally proceed with a closed mind and
there is hardly any chance of getting a proper consideration of
the representation at such post-decisional hearing.
The doctrine of post-decisional hearing has been given a very
logical exposition in Charan Lai Shau Vs. Union oflndia A.I.R.
1990 S.C. 1480 which is a case relating to Bhopal Gas Disaster
(Processing of Claims) Act, 1985. The Supreme Court held that a
general rule different from absolute rule applying uniformly is
that where the statute does not exclude the rule of predecisional hearing, but contemplates post-decisional hearing
which amounts to full review of the merits of original order,
then such a statute would be construed in such a way that if
excludes audi alteram partem rule at the stage of pre-decisional
hearing. If the statute is silent on the point of giving pre-decisional hearing, then administrative action after post-decisional
hearing is valid.
150

Justification of Doctrine of Post-Decisiona! Hearing-Justifying


the doctrine of post-decisional hearing, de Smith says, "can the
absence of hearing before a decision is made be adequately
compensated for by a hearing ex post facto? A prior hearing
may be better than a subsequent hearing, but a subsequent
hearing is better than no hearing at all; and in some cases the
Courts have held that statutory provision for an administrative
appeal or even full judicial review on the merits are sufficient to
negative the existehce of any implied duty to hear before the
original decision is made. The approach may be acceptable
where the original decision does not cause serious detriment to
the person affected, or where there is also a paramount need
for prompt action or where it is impracticable to afford
antecedent hearing".

Q. 11 (a). What do you mean by the Legislative powers of


Administration? How farare they justified under the Indian
Constitution?
Ans. Meaning of Legislative Powers of AdministrationLegislative is the law-making organ of any State. In some written
Constitution like the American and Australian Constitution, 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
Arts. 107 to 111 and 196 to 201 is that the law-making power
151

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 this law-making power must be
exercised by those bodies alone in whom this power is vested.
But in the Twentieth Century today these legislative bodies
cannot give that quality and quantity of laws which are required
for the efficient functioning of a modern intensive form of
government. Therefore, the delegation of lawmaking power to
the administration is a compulsive necessity. When any
administrative authority exercises the law-making power
delegated to it by the legislature, it is known as the rule-making
action of the administration or quasi-legislative action.
How far Judicial Powers of the Administration Justified under
the Indian Constitution?-Now-a-days, it is an established fact
that the Parliament passes only a skeleton legislation and the
rest of the part is left on the administrative agencies to provide
through the rule making power delegated to them for example;
the Import and Export (Control) Act, 1947 contains onlyeight
sections and delegates the whole power to the administrative
agency to regulate the whole mechanism of imports and
exports.
Thus, we can say that the Executive has two kinds of powers to
make laws. One kind of power is an independent power
conferred by the Constitution on the President and the
Governor, who are the executive heads of the Union and the
State. The other kind of power is the power delegated by the
Legislature to the Executive. A good deal of legislation takes
place through administrative agencies rather than in
152

Legislature. Under the present set up, as stated above, the


Parliament is obliged to delegate extensive law making power
relating to matters of detail providing a frame work of more or
less skeleton statutes. It should be noted that such type of law
making powers are vested in local authorities, the professional
bodies like Bar Council and in various other bodies authorised
by the statute.
Delegated Legislation under the Indian Constitution -The
Legislature is quite competent to delegate to other authorities
to frame the rules to carry out the purposes of the law made by
it. In D. S. Garewal Vs. The State of Punjab A.I.R. 1959, S.C. 512
K.N. Wanchoo, the then Justice of the Hon'ble Supreme Court
dealt in detail the powers of delegated legislation under the
Article 312 of Indian Constitution. He observed"There is nothing in the words of Art. 312 which takes away the
usual power of delegation, which ordinariiy resides in the
legislature. The words "Parliament may by law provide" in Art.
312 should not be read to mean that there is no scope for
delegation in law made under Art. 312. The words "may by law
confer" or "may by law provide", do not necessarily exclude
delegation and it will have to be seen in each case how far the
intention of the Constitution was that the entire provision
should be made by law without recourse to any rules framed
under the powers of delegation. It is not possible to hold that
the intention of the Constitution was that these numerous and
varied rules should be framed by the Parliament itself and that
any amendment of these rules which may be required to meet
the difficulties of day-to-day administration should also be
153

made by the Parliament only with all the attending delay which
passing of legislaton entails".

Q. 11 (b) How would you classify the Rule-making powers of


the Administrative authorities in India? Explain the
classification with examples from statutes. Or
What are the modes of rule-making powers, with which the
Executive or the Administrative bodies in India have been
invested?
Ans. Classification of the Rule-making Powers in India-The
nature and scope of delegation in different statutes are
different. Sometimes they are very wide, sometimes restricted
and very many times general. Sometimes the power is given to
make rules for carrying out the purposes of the Act; in some
cases power is given to modify the Act or to exempt persons or
subjects from the operation of the Act or include persons or
subjects within the ambit of the Act. But it must be noted that
all these powers of the Legislature to delegate rule-making
powers are subject to various checks and controls exercised by
the Parliament and the Court. In India, the rule-making powers
of the Executive can be classified under the following heads1. Power to Make Rules to Carry out the Purposes of the ActThere are so many statutes where the Parliament has
authorised the administrative agency or the Executive head to
make rules to carry out the purposes of the Act. S. 642 of the
Compaines Act of 1956, provides that the Central Government
154

may, by notification in the Official Gazette make rules to carry


out the purpose of the Act. S. 15(1) of the Prevention of Cruelty
to Animals Act, provides that the State Government may make
rules to carry out the purpose of the Act. S. 112 of the Factories
Act provides that the State Government may make rules
providing for any matter which may be considered expedient in
order to give effect to the provisions of this Act.
2. Power to Make Rules Regarding Particular Object Followed
by a General Provision-S. 5(1) of Air Craft Act of 1934 lays
down.........The Central Government may, by notification.......
make rules, regulation and control manufacture, possession,
use, operation, sale, import and export of any craft or class of
aircrafts (Sub-section 2) without going to the generality of the
foregoing powers, such rules may provide for.....S. 44(1) of the
Air Corporation Act of 1953, provides that the Central
Government may make rules to give effect to the provisions of
this Act. CI (2) speaks about particular matters following the
general one.
3. Power to Make Legislation Exempting or Including Powers
or Object from the Operation of the Act-S. 50 of Factories Act,
provides that the Government may make rules exempting
subject to compliance with such alternative arrangements for
the welfare of the workers as may be prescribed, any factory or
class of factories from compliance with many of the provisions
of the Act. Again S. 64 gives the power to the State Government
to exempt persons from the operation of this section of the Act
relating to the working hours of adults under Chapter 6 of the
Statute. S. 87 of the Employee's State Insurance Act, 1948
155

provides that the appropriate government by notification in the


Official Gazette and subject to such condition as may be
specified in the notification exempt any factory.
4. Power to Extend with Modification the Law in Force in one
Territory to Another Territory-S. 2 of the Ajmer-Merwara
Exclusion of Law Act, 1947, speaks, "The Central Government
may, by notification in the Official Gazette, extend the
provisions of the Act to Ajmer with such restrictions and
modifications as it thinks fit any enactment which is in force in
any Province at the date of such notification.
5. Power to Apply to a New Area any Part of the Act-S. 3 of
the Patna
Administration Act, 1928, provides that the Local Government
may extend to Patna the provisions of any section of the Bihar
Orissa Municipal Act, 1922 subject to similar restrictions and
modifications as the Local Government may deem fit.
6. Power to Repeal Laws Already in Force-This is an example
of a power of far-reaching effect and importance. This is
somewhat akin to Henry VIII Clause type of delegated
legislation. S. 2 of Part C State (Laws) Act of 1950, provides:
"The Central Government may extend to any Part C State any
enactment which is in force in Part A State and the provisions
may be made in any enactment so extended for the repeal of
any corresponding law which is in force in that Part C State. It
may be noted that the above provision was struck down in Re
Delhi Laws Act Case, A.I.R. 1951.
156

7. Power to Make Law Notwithstanding Anything Inconsistent


Therewith in Other Enactment-S.3 of the Essential Supplies Act,
1947, provides that the Central Government so far as it appears
to it to be necessary or expedient for maintaining or increasing
supply of any essential commodity or for securing equitable
distribution and availability at a fair price, may provide for
regulating or prohibiting the production, supply and distribution
there and trade and commerce thereof.
S. 6 of the said Act also provides, any order made under S. 3
shall have effect, notwithstanding anything inconsistent
therewith contained in any enactment other than this Act.
8. Power to Make Law in Respect of Rates of Duty or Tax to be
Paid-The Parliament may authorise the Executive to make law in
respect of rates of duty or tax to be paid f or example, S. 4-A of
Tariff Act of 1975, may be taken with consideration. Next, S. 37
of the Central Excise and Salt Act, 1944, also provides such a
power to the Executive.
9. Power to Make Law During Emergency-Besides Art. 356 of
the Constitution which deals with the power of the President to
make laws for the State, there are other Acts as well which
provide wide legislative power to the Executive during
emergency. S. 3 of the Defence of India Act, 1962, provides that
the Central Government may by notification in the Official
Gazette, make such rules as may appear to it necessary or
expedient for securing the defence of India, the public safety,
the maintenance of public order of the efficient conduct of
157

military operations, or for maintaining supplies and seizures


essential to the need of the community.
10. An Act may declare that(a) The rules made thereunder shall not be called in question in
any court, or
(b) Such rules are to have the effect as if contained in the Act.
S. 16 of the Defence of India Act, 1939, provides that the rules
made under this Act shall not be reviewable by the court. #

Q. 12. What do you mean by Delegated Legislation? DImus\ (In


various methods of Judicial Control over Delegated Legislation
Ans. Definition of Delegated Legislation-Although it is very
difficult to define the term delegated legislation yet an atttempt
to define it has been made by the various jurists as under1. According to J. Mukherjee, "Delegated Legislation is an
expression which covers a multitude of confusion. It is an
excuse for the legislators, a shield for the administrators and a
provocation to the constitutional jurists..."
2. According to Halsbury's Laws of England, "When an
instrument of a legislative nature is made by an authority in the
exercise of power delegated or conferred by the Legislature it is
158

called "subordinate legislation".


3. According to the Committee on Ministers' Powers, the
expression "delegated legislation" is used in two senses. In one
sense delegated legislation means the exercise of power of rulemaking delegated to the Executive by the Legislature. In other
sense, it means the output of the exercise of that power.
In the first sense. Delegated Legislation means that the
authority making the legislation is subordinate to the
legislature. The legislative powers are exercised by an authority
other than the legislature in the exercise of the powers
delegated or conferred on them by the legislature itself. This is
also known as "subordinate legislation" because the powers of
the authority which makes it are limited by the statute which
conferred the power and consequently, it is valid in so far as it
keeps within those limits.
In the second sense, "Delegated Legislation" refers to all lawmaking which is generally expressed as rules, regulations, byelaws, orders, schemes, directions, circulars or notification etc.
In this way, 'delegated legislation' means the law made by the
executive under the powers delegated to it by the legislature.
The term 'delegated legislation' may be defined as to "when the
funcion of legislation is entrusted to organs other than the
legislature itself, the legislation made by such organs is called
delegated legislation".
Methods of Judicial Control Over Delegated Legislation-Judicial
Control over the delegated legislation is the most outstanding
159

controlling measure. It can be exercised by applying two tests(a) Substantive ultra vires; and (b) Procedural ultra vires.
When a subordinate legislation goes beyond the power of the
authority conferred on the delegate to enact, it is known as
substantive ultra vires. It is a fundamental
principle of law that a public authority cannot act outside the
powers and if the authority acts, 'such act becomes ultra vires
and, accordingly void'.
When a subordinate legislation is enacted without complying
with the procedural requirements prescribed by the Parent Act
or by the general law, it is known as procedural ultra vires. In
case of procedural ultra vires, the
Courts may or may not quash delegated legislation as it
depends upon the circumstance whether the procedure is held
to be mandatory or directory.
It is to be noted that the Judicial control over delegated
legislation is exercised by applying the doctrine of ultra vires in
a number of circumstances i.e.,
1. Where Parent Act is Ultra vires the Constitution-The
Constitution prescribes the limits within which the legislature
can act. If the Parent Act or Enabling Act is ultra vires the
Constitution, the rules and regulations made thereunder would
also be null and void. The Parent Act is declared ultra vires the
Constitution, if it violates the following three limits(i) Express Constitutional Limits-The Legislative powers of the
160

Union and the States are expressly distributed in Art. 246 of the
Constitution. If either legislature encroaches upon the exclusive
sphere of the other as demarcated in three Lists, (i) Union list;
(ii) State list; and (iii) Concurrent list, its legislation will be ultra
vires.
(ii) Implied Constitutional Limits-Implied Constitutional limits
are those which were enunciated in Re Delhi Laws Act A.I.R.
1951 Viz., laying down policy and enacting that policy into a
binding rule of conduct. Legislature cannot delegate essential
legislative function to any other agency and if it so delegates the
Parent Act will be ultra vires the Constitution. On this principle,
in Re Delhi Laws Act Case, the Supreme Court declared the later
part of Clause 2 bad because it conferred power on the
administrative agency to repeal a law which, according to the
Court, is an essential legislative power.
(iii) Constitutional Rights-No legislature has competence to
pass a law violative of the provision of commerce clause, right
to property under Art. 300-A or the right to life and personal
liberty under Art. 21.
2. Where Delegated Legislation is Ultra Vires the ConstitutionUnder certain circumstances it is possible that the Parent Act
may not be ultra vires the Constitution and delegated legislation
may be consistent with the Parent Act, yet the delegated
legislation may be held invalid on the ground that it is ultra vires
the Constitution.
In Dwarka Prasad Vs. State of Uttar Pradesh, A.I.R. 1954, the
U.P. Control Order was made under the Essential Supplies
161

(Temporary Powers) Act, 1946. Although the Parent Act was


Constitutional yet S. 3 (2) (b) of the Order was held ultra vires
by the Supreme Court as it violated Art. 19 (1) (g) of the
Constitution of India by imposing unreasonable resttriction on
the right to carry on trade and business. CI. 3 (1) of the Order
provided that no one can carry on business in Coal except under
a licence. CI. 3 (2) (b) further laid down that the State Coal
Controller can exempt any person from the licence
requiremeqt. The Court held that CI. (2)(b)was ultra vires. Art.
19(1) (g) as it confers arbitray powers on the executive in
granting exemptions.
In K. Panduranga Vs. State of Andhra Pradesh A.I.R. 1985., the
Court quashed Andhra Pradesh Catering Establishments
(Fixation and Display of Prices of Foodstuffs) Order, 1978 which
made it compulsory for hoteliers to sell all the seven eatable
items mentoined in the schedule. The Court ruled that any
order compelling a person to carry on business against his will
was violative of Art. 19(1) (g) of the Constitution.
Where the Parent Act cannot be challenged before the Court
because it is protected under Art. 31-B of the Constitution on
account of its placement in the Ninth Schedule, the question is
whether the delegated legislation made thereunder can be
challenged. Supreme Court answered the said question in the
affirmative.
The Court held that even in a case where a Parent Act cannot be
challenged before the Court because of protection of Art. 31-B
of the Constitution on account of its placement in the Ninth
162

Schedule, the delegated legislation promulgated thereunder


can still be challenged if it violated any provision of the
Constitution. In this way child legislation does not come under
the protective umberella of the Ninth Schedule i.e. under the
theory of derivative communities.
3. Where Delegated Legislation is Ultra Vires the Parent ActThe validity of delegated Legislation can be challenged on the
ground that it is in excess of the power conferred by the Parent
Act^o* example; in Chandra Bali Vs. R., A.I.R. 1952 S.C. 115
certain rules farmed under the Northern Indian Ferries Act were
challenged. The Act authorised the making of rules for the
purpose of maintaining order ensuring safety of passengers and
property. However, the delegate made rules forbidding the
establishment of private ferries within the distance of two miles
from the boundaries of another ferry. The Court held the rules
ultra vires as they were outside the scope of the delegated
power.
4. Where Delegated Legislation is in Conflict with the
Prescribed Procedure of Parent Act-Again, it may be noted that
the validity of the delegated legislation can also be challenged
on the ground that it is in conflict with any provision of the
Parent Act. Thus, in D.T.O. Vs. Hajelay A.I.R. 1972 U/S. 95 of the
Delhi Corporation Act, 1957, it was provided that no employee
can be dismissed by any authority subordinate to the appointing
authortiy i.e., the General Manager. He delegated that power
by making a rule to the Assistant manger.It was held that such a
rule was in conflict with the Parent Act, and therefore, it was
invalid.
163

In case the Parent Act lays down procedure which must be


followed by the administrative body while exercising lawmaking power under it. If the procedure is not followed, the
delegated legislation may be declared bad. In Banwari Lai
Agarwal Vs. State of Bihar A.I.R. 1961, U/S.-12 of the Mines Act,
1952, the Central Government was required to consult the
Mining Board constitutued under the Act before framing rules.
The Central Government made rules without consulting the
Mining Board. The Supreme Court held that the rules so framed
in violation of the statutory provisions were invalid being ultra
vires the procedure established by the Parent Act.
In Narendra Kumar Vs. Union of India, A.I.R. I960 while deciding
the validity of Non Ferrous Metal Control Order, 1958, the
Supreme court observed, "mala fides have not been suggested
and we are proceeding on the assumption that the Central
Government was honestly of the opinion....From these
observations it may be inferred that the courts may consider
the mala fide exercise of the power by the statutory authority.
It is to be noted that in case the Supreme Court has established
that Art. 14 contains principle of reasonableness. It has been
held that the concept of reasonableness and non-arbitrariness
pervades the entire constitutional scheme and is a golden
thread which runs through the whole of the fabric of the
Constitution. Accordingly, "every state action whether it be the
legislature or of the executive or of "an authority under Art. 12"
shall be struck down by the court if it does not comply with the
requirement of reasonableness.
164

165

Q. 13. Explain the various methods of Legislative control over


Delegated Legislation. What is the effect of failure to lay?
What are the various kinds of laying?

Ans. Legislative Control over Delegated Legislation-Since lawmaking power is vested in the legislature, hence on the basis of
the Doctrine of'Constitutional Trust', power should be exercised
by the legislature itself. But if the legislature delegated
legislative powers to the executive, it must also see that powers
are properly exercised by the administration. The object of
legislative control is to keep watch over the rule-making
authorities and also to provide an opportunity to criticise them
if there is abuse of power on their part.
Methods of Legislative Control over Delegated Legislation-A
three prong control is exercised by the legislature over
delegated legislation as follows1. Proceedings in Parliament;
2. Laying on the Table; and
3. Scrutiny Committees.
1. Proceedings in Parliament-There are two Houses of
Parliament. Each House has its own rules of procedure and
conduct of business. A rule of each House requires that a bill
involving proposal for delegation of legislative power "shall be
accompanied by a memorandum explaining such proposals and
drawing attention to their scope, and stating also whether they
are of exceptional or normal character. A number of
166

proceedings are involved in the exercise of control aver


delegation of legislative powers by the legislature(i) Debate on Delegation Bill-When involving delegation of
legislative powers under consideration before Parliament,
members may discuss all matters about delegation including
necessity, extent, type of delegation and.the authority to whom
power is proposed to be given.
(ii) Asking Questions and Giving Notices-Any member of the
House may ask questions on any matter concerning delegation
of legislative power and, if not satisfied, can give notice for
debate as laid down under Rule 59 of the Procedure and
Conduct of Business in Lok Sabha.
(iii) Resolution on Motion -Any member of the House may
move a resolution on motion, if the matter relating to
delegation of legislative power is of urgent and immediate
nature, and the reply given by the government is not
satisfactory.
(iv) Demand for Vote on Grant-Member's can discuss any thing
about delegated legislation when budget demands are
presented by a Ministry. Any member may propose to reduce
grant. Through this proposal, he may bring the matter of
exercise of rule-making power under discussion.
(v) Directions by the Speaker-The Speaker may refer bills
containing provisions for delegation of legislative powers to the
committee to examine the extent of such powers brought to be
delegated.
167

2. Laying on the Table-A device to invoke legislative supervision


is a provision in the delegating statute requiring 'Laying' of the
rules before the concerned legislature. Laying serves two
purposes- firstly, it informs the legislature as to what rules have
been framed by the administrative authorities in the exercise of
law-making power, and secondly, it provides an opportunity to
the legislatures to question or challenge the rules already made
or proposed to be made. In almost all the common wealth
countries the procedure of 'Laying on the Table' of the
legislature is required to be followed.
Kinds of Laying-According to the Select Committee on
Delegated Legislation, there are seven types of laying(i) Laying without Further Provision for Control-The Parent Act
under this form simply provides that the rules shall be laid
before Parliament. They become operative from the date they
are laid before the Houses. This procedure serves the prupose
of only informing the Parliament as to what rules and
regulations were made by the administrative authorities.
(ii) Laying with Deferred Operation-In this case the
requirement of laying is linked with postponement of rules and
in this way Parliament gets greater degree of control than in the
preceding form of laying.
(iii) Laying with Immediate Effect but Subject to AnnulmentUnder this type of laying, the rules come into force when laid
before the Parliament, but cease to be in operation if
168

disapproved by it within a specified period. According to May,


"this is the most common form of Parliamentary Control" and is
known as 'negative resolution procedure'.
(iv) Laying in Draft but Subject to Resolution that no Future
Proceedings be Taken-This is a variant of'negative resolution'
procedure. Under this, draft of statutory rules are required to
be laid before Parliament but the Parent Act provides that the
rule should not be made effective until a particular period has
expired.
(v) Laying in Draft and Requiring Affirmative Resolution-This
method provides a stringent Parliamentary supervision over
delegated legislation unlike the 'negative resolution' procedure.
The draft rules do not become effective until an affirmative
resolution has been passed by Parliament. Member gets an
opportunity to duscuss and react to the rules before they can
finally be given effect by the executive authority.
(vi) Laying with Operation Deferred until Approval Given by
Affirmative Resolution-In this case, rules are actually made but
they do not come into operation until approved by the
Parliament. Legally, in this case, the delegated legislation exists,
although it does not come into effect whereas in the case of
'positive resolution' procedure under head (v) the legislation is
required to be laid in draft it has no legal existence; it has not
been made.
(vii) Laying with Immediate Effect but Requiring Affirmative
Resolution as Condition for Continuance-This method of laying
169

is used where prompt operation of delegated legislation is


required but at the same time strict Parliamentary supervision is
also necessary. The confirmatory resolution keeps the
delegated legislation alive, which would otherwise die. It is
often applied in cases of taxation or to the rules made during
emergency.
In India, there is no statutory provision requiring laying of all
delegated legislations. There is no general obligation on the
administration to lay the rules before Parliament. Whether the
rules made under a statute are to be laid before the Houses of
Parliament or not depends upon the terms of each enabling
statute. Generally, a provision of laying is found in a number of
statutes. Such statutes are Immigration Act, 1922, Insurance
Act, 1938, Agriculture Products Act, 1938, Motor Vehicles Act,
1939, Central Excises and Salt Act, 1944 and the Indian Aircraft
Act, 1944.
Only in a few Acts, namely. Insurance Act, 1938 and Aircraft Act,
1944 provision was made for laying subject to a 'negative
resolution' procedure. This negative resolution procedure, is not
the same as its counterpart in England, because in India it
includes the power of modification also.
Effect of Failure to Lay-In India also, the position is not clear.
The consequences of non-compliance with laying provisions
depend on whether the provisions in the delegating statute are
mandatory or directory. In Narendra Kumar Vs. Union of India
A.I.R. 1960, the Supreme Court held that the provision
regarding laying was mandatory. In this case, S. 3 (5) of the
170

Essential Commodities Act, 1955 provided that the rules framed


thereunder must be laid before both the Houses of Parliament.
On this ground CI. 4 of the Non-Ferrous Control Order, 1958
was declared to be of no effect unless laid before the Houses of
Parliament.
Q. 14. Explain as to how Parliament exercises procedural
control over Delegated Legislation? What is the effect of
failure to exercise of procedural control?
Ans. Procedural Control Over Delegated Legislation-Since the
Parliamentary control over delegated legislation is not very
much effective, a constant search is on for an alternative
mechanism which besides providing effective vigilance over
delegated legislation, can guarantee effective people
participation for better social communication, acceptance and
effectiveness of the rules. Procedural control mechanism has
the potential device to meet the aforesaid requirements. Nowa-days there is very much emphasis on procedural control. It
has three components1. Antecedent Publicity;
2. Publication; and
3. Consultation of Interests.
L Antecedent Publicity-From the point of view of the citizen
affected, the primary safeguard to ensure the proper exercise of
powers of delegated legislation lies in the development of
adequate procedures to be followed by the administrative
process in the formulation of rules and regulations. The means
of obtaining participation in the rule-making process by
171

unorganised interests is through the device of antecedent


publicity.
In India there is no separate law relating to the system of
antecedent publicity. However, in certain cases the enabling
statutes have provided for antecedent publicity. S. 43 of the Cooperative Societies Act, 1912, S. 30 (3) of the Chartered
Accountants Act, 1949 and S. 15 of Central Tea Board Act, 1949
provide examples where it is required that the rules must first
be published in draft form to give an opportunity to the people
to have their say in the rule-making.
2. Publication-A fundamental principle of law is that "ignorance
of law is no excuse". Nevertheless, there is also another equally
established principle of law that the public must have access to
the law and they should be given an opportunity to know the
law. As Domatt points out, "all laws ought either to be known or
at least laid open to the knowledge of all the world in such a
manner that no one may with impunity offend against them,
under pretence of ignorance." In the case of legislation by
legislature, this poses little difficulty as it receives sufficient
publicity because the bill is discussed at the floor of legislature
for several days, it passes through several stages and
discussions are reported in the press. But this is not true in the
case of delegated legislation.
Unlike England and America, there is no general law providing
for publication of delegated legislation in India. Here the
practice of publication of delegated legislation differs from
statute to statute. In certain cases the statute provides that the
172

rules must be published in the official Gazette. However, in


other cases it is left to the administrative authority to choose its
own mode of publication. In such cases publication is necessary
in any 'recognisable' manner.
Mode of Publicatiori-The Question of mode of publication of
delegated legislation was considered by the Supreme Count in
State of Maharashtra Vs. M.H. George A.I.R. 1965. In this case
Ayyanger, J. formulated guidelines regarding the mode of
publication of delegated legislation as under(i) Where there is statutory requirement as to the mode or
form of the publication and they are such that in the
circumstance, the Court holds to be mandatory, a failure to
comply with those requirements might result in their being no
effective order the contravention of which could be the subject
of prosecution.
(ii) Where there is no statutory requirement, it is necessary
that it should be published in the usual form i.e., by publication
within the country as generally adopted to notify all the persons
the making of the rules, and.
(iii) In India, publication in the official Gazette, viz., the Gazette
of India is the ordinary method of bringing a rule of subordinate
legislation to the notice of persons concerned.
It may be noted that where the Parent Act prescribes a mode of
publication that mode must be followed.
Publication as a Corollary of Natural Justice-Publication of
delegated legislation has been taken by the Courts as a corollary
173

of natural justice. Courts have treated publication of delegated


legislation as an essential requirement of its validity. The
Supreme Court in Harla Vs. State of Rajasthan, A.I.R. 1957, has
held that delegated legislation cannot take effect unless
published.
Again, in the State of Kerala Vs. P.J. Joseph, A.I.R. 1948, the
Government of Cochin authorised the Board of Revenue to
sanction extra quota of foreign liquor on payment of 2 per cent
commission. The Court held that this authorisation does not
have the force of law because the rule was never published.The
same position was maintained by the Supreme Court in
Narendra Kumar Vs. Union of India, A.I.R. 1960. In this case S. 3
of the rssential Commodities Act, 1955 required all the rules to
be made under the Act 1o be notified in the Official Gazette.
The Principles applied by the licensing authority for granting
permits for acquisition of non-ferrous metals were not notified.
It was, therefore, held by the Supreme Court that the rules were
ineffective.
Effect of Delegated Legislation from the Date of PublicationUnless
the rule-making authority specifies the date on which the rules
shall come into force, the rules generally take effect on the date
of publication. However, considering the special nature of
service rules the Allahabad High Court has ruled in Banarsi Das
Vs. U.P. Government, A.I.R. 1959 that (lie service rules take
cITect from the date they are made. Administrative authority
can give retrospective effect to their rules provided the rules
are not invalid on the ground of their retrospective operation.
174

Defect in Publication-A question which often arises is whether


the requirement as to prior publication of rules can be
characterised as directory or mandatory. What will be the effect
of non observance of this requirement or defect in publication?
All these points are not clear. However , it is accepted that no
general rule can be propounded and that it depends upon the
provisions of relevant statute and facts of the each case.
3. Consultation of Interests-An important measure to check and
control the exercise of the power of.delegated legislation is the
technique of consultation through which affected interests may
participate in the rulemaking process. This modus operaendi
makes administrative rule-making a democratic process, and
therefore, increases its acceptability and eftectivity. Such public
participation in the rule-making process is regarded as a
valuable safeguard, for it enables the interests affected to make
their views known to the rule-making authority.
Since there is a public participation, the technique of
consultation is characterised as "the democratization of rulemaking process". The rationale behind this technique is that
legislation is primarily the function of the legislature where
various interests are represented. If a legislature cannot itself
legislate or scrutinise rules made by the administration, there
must at least be a provision for the affected interests to present
their point of view to the concerned rule-making authority. This
is one way in which, to seme extent, the objection to
bureaucratic legislation may be minimised and an improper use
of rule-makig power avoided.
In India, there is no general statutory provision requiring prior
175

consultation with the affected interests before making


delegated legislation. While informal consultation is practised,
certain statutes specifically provide for the consultation. Any
person who is affected by rules or regulations can make
suggestions or file objections. Such suggestions or objections
will be considered by the Authority making delegated
legislation. Consultation as required under the Indian statutes
fall under the following categories1. Official Consultation-There are certain statutes under which
the power of rule-making is delegated subject to a stipulation
that it is to be exercised in consultation with a named official
body or agency e.g., The Representation of the People's Act,
1950 requires that the Central Government shall consult the
Election Commissipn of India before making any rules under the
Act.
2. Consultation with Statutory Boards-The rule making power
under certain statutes is conferred on the Central Government
which can be exercised after consulting the concerned Board,
e.g., the Central Government has been empowered to make
rules U/S. 6 and 12 of the Drugs Act, 1940 after consulting the
Drugs Technical Advisory Board.
3. Consultation with Advisory Bodies-There are some statutes
under which advisory bodies are constituted to assist the
Central Government or other subordinate authorities in making
rules. Thus, Mining Boards are constituted under the Indian
Mines Act, 1901 to assist and advise the Government in making
rules.
176

4. Making of Draft Rules by Affected Interests-In a few cases,


the power to draft rules is conferred on the affected interests.
Thus, under S. 61 of the Indian Mines Act, 1961 the owners of
Mines are empowered to draft rules themselves for the safety
and prevention of accidents in Mines and submit the draft rules
to the Inspector of Mines. Such rules come into force when
approved by the government.
5. Effect of Failure to Consult-In India, the position requiring
consultation has been regarded as directory in some cases and
mandatory in other cases.
Conclusion-Consultation of interests can be a statutory
safeguard against improper use of power of delegated
legislation as it infuses democratic norms in bureaucratic
legislation. Besides this, it is an administrative necessity.
Effective and meaningful administration is impossible without
imaginative administrative process. If the citizens are to receive
the advantage of any beneficial measures of the administration,
the administration process should be such that the benefit
reaches the citizen in full measure and with expedition. %

177

Q. 15. What are the various causes of the growth of Delegated


Legislation? Explain the classification of Delegated Legislation.
Or What is the necessity for the delegation of Legislative
Powers to the Executive.
Ans, Causes of the Growth of Delegated Legislation-According
to the Committee on Ministers' Powers the following factors are
responsible for the rapid growth of delegated legislation1. High Pressure of Work on Parliament-Due to rapid increase in
the functions of state, 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. Therefore, legislature passes
skeleton legislation containing general policy and empowers the
executive to fill in the details, thus giving flesh and blood to the
skeleton so that it may live by making necessary rules,
regulations, bye-laws etc. Law-making is not a turn key project,
readymade in all detail and once this situation is grasped the
dynamics of delegation easily follows. The Committee on
Ministers' Powers has rightly remarked"The truth is that if Parliament were not willing to delegate
lawmaking power, Parliament would be unable to pass the kind
and quality of legislation which the modern public opinion
requires."
2. Technical Character of Legislation-It may be noted that
sometimes, the subject-matter of the legislation is of a technical
nature and requires consultation ofexpcrts. Members of
Parliament may be best politician but they are not experts to
deal with highly technical matters which are required to be
178

handled by experts. In such cases the legislative power may be


delegated to experts to deal with the technical problems.
Legislation concerning atomic energy, nuclear energy, gas,
drugs or electricity are the examples.
3. Need for Flexibility and Expediency-Sinceat the time of
passing any legislative enactment, it is not possible to foresee
all the contingencies. Therefore, power is necessarily required
to be given to the Executive to meet the unforeseen
contingencies or to adjust new circumstances rising frequently.
While parliamentary process involves delays, delegated
legislation offers rapid machinery for amendment. Police
regulations and certain economic regulations relating to bank
rate, import and exports, foreign exchange etc. are instances of
such situations.
4. Opportunity of Experimentation-Ordinary legislative
process suffers from the limitation of lack of viability and
experimentation. Delegated legislation enables the executive to
experiment. The method permits rapid untilisation of
experience and implementation of necessary changes in the
application of the provisions in the light of such experience. If
the rules and regulations are found to be satisfactory, they can
be implemented successfully. On the other hand, if they are
found to be defective, the defects can be cured immediately.
5. To Meet Emergency-In times of emergency, quick action is
required to be taken. An emergency may arise on account of
war, insurrection, floods, epidemics, economic depression and
the like.1 Legislative process is not equipped to provide for
179

urgent solution to meet the situation. It is, therefore,


necesssary that executive must have power that may be used
instantly. Delegated Legislation is the only convenient remedy.
6. Confidential Matters-Under certain circumstances public
interest demands that the law must not be known to any body
till it comes into operation. Rationing schemes or imposition of
import duty or exchange control are such matters.
7. Complexity of Modern Administration-Due to the complex
structure of society, modern administration has become
complex. It is assuming more and more responsibility in
promoting the welfare of the citizens, supervising their health,
education and employment, regulating trade, industry and
commerce, and providing a great variety of other services. In
this way the complexity of modern administration and the
expansion of the functions of state of socio-economic sphere
have rendered it necessary to resort to new forms of legislation
and to give wide powers to various agencies on suitable
occasions.lt is necessary that the administraion should be given
ample power to implement socio-economic policies so that
immediate action can be taken. By resorting to traditional
legislative process, the entire object may be frustrated by
vested interest and. the goal may not be achieved at all.
Thus, on account of the above factors, delegated legislation, as
a technique of modern administration, is now regarded as
useful, inevitable and indispensable.
Criticism of the Growth of Delegated Legislation-There was a
180

time when the growth of delegated legislation was criticised as


undemocratic. It was described as an extension of the despotic
powers of bureaucracy. But with the change in time it is now
considered as the natural reflection in the sphere of
constitutional law, of changes in ideas of government, resulting
from changes in political, social, and economic thinking, and of
the changes brought out in lives owing to scientific discoveries
and technological advances.
However, it must be noted that the delegated legislation suffers
from several defects as well. Constitutional legitimation of
unlimited power of delegation to the executive by the
legislature may, on occasion , be subversive to responsible
government and erosive of democratic order. (Avinder Singh Vs.
State of Pu njab, A.I.R. 1979, S.C. 321)
Classification of Delegated Legislation-There are several ways
for classifying delegated legislation1. Title Based Classification-Parliament does not follow any
particular policy in choosing the forms of delegated legislation.
It is, therefore, that the delegated legislation appears in several
forms viz., rules, regulations, orders, notifications, bye-laws,
schemes and directions. The Committee on Minister's Powers
recommended for the simplification of nomenclature. It
suggested for confining the term 'rule' to the statutory
instrument regulating procedure, the term 'regulation' to
describe the substantive administrative rule-making and the
term 'order' to be confined to instruments exercising executive
and quasi-judicial decisions.
181

2. Nature Based Classification-Delegated legislation may also


be classified on the nature and extent of delegation of
legislative power. According to the Committee oil Ministers'
Powers, there are two types of parliamentary delegation-1.
Normal and 2. Exceptional.
1. Normal Delegation There are two types of normal
delegation(a) Positive Delegation Where the limits are clearly defined in
the Parent Act, it is called positive delegation.
(b) Negative Delegation-Where the delegated power does not
include power to do certain things, it is known as negative
delegation e.g., power to legislate on matters of policy or power
to impose tax.
2. Exceptional Delegation-Exceptional delegation is also
known as Henry VIII Clause. Examples of exceptional delegation
are as follows
(a) Power to legislate on matters of principle.
(b) Power to amend the Acts of Parliament.
(c) Power giving such a wide discretion that it is almost
impossible to know the limits.
(d) Power to make rules which cannot be challenged in a court
of law.
3. Permissible or Discretion Based Delegation-There are two
modes
of permissible delegation. In America they are known as (i)
contingent and (ii) subordinate. In India they are known as
conditional and subordinate. In India, conditional legislation
182

represents nearly the same idea as 'contingent' legislation in


America.
'Contingent' or conditional legislation is defined as "a statute
that provides control but specifies that they are to come into
effect only when a given administrative authority finds the
existence of conditions defined in the statute. In subordinate
legislation, on the other hand, the process consists of a
discretionary elaboration of rules and regulations. The
distinction between the two types of permissible delegation is
said to be based on the point of discretion. In contingent or
conditional legislation, delegation is of fact-finding. In
subordinate legislation the delegation is of discretion. All this
means that by delegated or subordinate legislation the delegate
completes the legislation by supplying details within the. limits
prescribed by the statute and in the case of conditional
legislation the power of legislation is exercised by the
Legislature conditionally leaving to the discretion of an external
authority the time and manner of carrying its legislation into
effect as also the determination of the area to which it is to
extend.
4. Impermissible Delegation-There is no specific bar in our
Constitution against the delegation 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.
183

Q. 16. Discuss the constitutionality of the delegated legislation


in India. What functions cannot be delegated under
impermissible delegation?
Ans. Constitutionality of the Delegated Legislation-Arts. 245 and
246 of the Constitution provide that the legislative function
shall be vested in Parliament and the State Legislatures and
they shall exercise their legislative power with respect to entries
mentioned in U nion and State Lists respectively. There is
nowhere mention of any clause whereby it can be concluded
that the Legislature cannot delegate the power of legislation to
any bodyelse. But, it does not mean that power of legislation
includes the power of delegation. In the constitution itself we
find several provisions where the Executive heads, i.e., the
President and the Governors of the different States have been
empowered to make laws under certain conditions when the
Parliament or State Legislatures are not in session. Moreover,
the President's rule in any State has also authorised the
executive to make laws. Therefore, it can be concluded that
although the intention of the Constitution makers was that the
function of legislation must be carried out by Legislatures, in
Centre and States, as the case may be, yet the delegation of
legislative power was taken to be inevitable and accordingly
accepted and it was the reason why delegation of legislative
power was not prohibited by the Constitution.
In D.S. Grewal Vs. State of Punjab. A.I.R. 1959 512, Wanchoo. J.
held that it is now judicially conceded that power of delegation
"ordinarily resides in the Legislature". Art. 13, CI, (b) also
184

mentions certain terms which are included under the definition


of Law, but which comes out from the pen of administrative
bodies. Now, delegation of the legislative power to the
Executive has been accepted as an established fact.
British Position-The position in Great Britain is different from
India with regard to the extent of delegation. The British
Constitution has entrusted to the two Houses of the Parliament
subject to the assent of the King an absolute power
uncontrolled by any written instrument, obedience to which
may be compelled by some judicial body. Parliament may
accordingly delegate to any extent its power of law-making to
an outside authority. The limits of delegated legislation in
English constitution, if there are to be any, must, therefore,
remain a question of policy and not a judicial issue for the court.
Indian Position-The position in India is that the legislative
function in its true sense and essence cannot be delegated.
Therefore, what can be delegated is non-essential legislative
function and the question is decided by the court as to what are
the essential and what are non-essential legislative functions.
The essential legislative function consists in formulating a policy
of law and legal principle which is the basis of the rule of
conduct of individuals and officials of the State. Therefore, it is
now settled that what can be delegated is some-thing which
does not constitute the essential legislative function. What can
be delegated is something which is ancilliary to, or in aid of the
exercise of legislative function by the Legislature in an effective
manner, J. Mukherjee in Re Delhi Laws Act Case A.I.R. 1951 held
185

that if the policy laid down in an Act is in broad terms the filling
of details of that policy can generally be passed on by the
Legislature to the Executive. J.
Mahajan said, "The delegation of the legislative power to the
Executivp in essential matters is unconstitutional".
J. Kania supported the view by holding that the power of
delegation in the sense of the Legislature conferring powers on
the Executive "to lay down the policy underlying a rule of
conduct" is not permitted. The fundamental point', where all
the judges agreed in Re-Delhi Laws Act Case were as under
1. From a practical point of view. Parliament should be .il>lr in
delegate, power to the Executive.
2. Unlike U.S.A. the doctrine of separation of powers did not
prevail in India, which has primarily a Parliamentary system of
Government and where delegation of legislative power,
therefore, cannot be regarded as an illegality.
As to the extent of delegation, Judges have differed. Das and
Shastri, JJ., took the view that Parliament could delegate to any
extent subject to only limitation that it must not efface itself or
abdicate its powers. Kania, Mahajan and Mukherjee, JJ. held the
view that Parliament could not delegate the essential legislative
function to another agency. By essential function was meant
the formulation of policy and enacting it into a binding rule of
conduct. After formulating the policy, Parliament could leave
the task of working out details within the framework of its
186

policy to the Executive.In fact, Re Delhi Laws Act Case, A.I.R.


1951 could not set up an established principle except that the
delegation of legislative power is an essential condition of
modern state. It was through a series of later cases that
Supreme Court in Hari Shankar Bagla and Another Vs. State of
M.P. A.I.R. 1945 S.C. 456, and in other cases held that the
essential Legislative function cannot be delegated by the
Legislature. This consists in laying down legislative policy in
respect of a measure and the standard to guide the officials in
the matter of execution of the law. Once this has been done by
the Legislature, there is nothing unconstitutional for it to
empower the Executive to fill in the details for the working out
of the policy laid down by the Legislature, by means of
subordinate legislation.
In Kesawa lyenger Vs. State of Mysore A.I.R. 1956 IMys. 204,
High Court clearly held that the proposition that subsidiary or
delegated legislation has been inevitable and necessary owing
to the increased pressure of legislation and complexity of
subject-matter of the present day legislation is well recognised.
Due to complexity of the modern social and economic condition
the Legislature has been compelled to entrust the department
responsible for administering the law with the power of
deciding administrative or quasi-judicial issues.
In Bhatnagar & Co. Vs. Union of India A.I.R. 1957 S.C. 478, S. 3
(1) (a) of the Imports and Exports (Control) Act, 1947, which
authorises Central Government to prohibit or restrict the import
or export of any specified description was held valid. The
Supreme Court reiterated the principle that if a "reasonable
187

clear statement of policy underlying the provisions of the Act


could be found "either in the provisions of the Act itself or in
the preamble" then any part of the Act cannot be attacked on
the ground of delegated legislation by suggesting that the
questions of policy have been left to the delegate.
In Vasantlal Maganlal Sanjan Wala Vs. The State of
Maharashtra, A.I.R. 1961 S.C. 4, it was clearly laid down that the
subordinate legislation has become now well settled. There is
nothing wrong in such delegation, because the modern
conditions have compelled the Legislature to entrust its duty to
administrative agencies. It lays down that "it is now well
established that the power of delegation is a constituent
element of the legislative power as a whole and in modern
times when Legislature enacts laws to meet the challenge of the
complex social economic problems they often find it convenient
and necessary to delegate subsidiary or ancilliary powers to
delegates of their choice for carrying out the policy laid down in
the Acts. The extent to which such delegation is permissible is
also now well-settled. The Legislature cannot delegate its
essential Legislative policy and principle and must afford
guidance for carrying out the said policy before it delegates its
subsidiary powers in that behalf'.
Thus, the analysis of the opinion of Supreme Court delivered at
several occasions, clearly indicates that delegation of legislative
power is not unconstitutional since it is neither prohibited by
the Constitution nor is it inconsonance with the present
conditions of the society.
188

What Functions cannot be Delegated under Impermissible


Delegation?The following functions cannot be delegated1. Essential Legislative Functions-Although there is no specific
bar in our Constitution against the delegation of legislative
power by the Legislature to the executive, it is now well settled
that the essential legislative functions cannot be delegated by
the Legislature to the executive. It means that the Legislature
must lay down legislative policy and by entrusting this power to
the executive, the Legislature cannot create a parallel
Legislature such was the view of Supreme Court in Re Delhi
Laws Act Case, A.I.R. 1951 S.C. 332.
2. Repeal of Law-Power to repeal a law is essentially a
legislative power, and therefore, delegation of such power by
the Legislature to the executive is ultra vires.
3. Retrospective Operation-The Legislature has plenary power
of law-making and in India, Parliament can pass any law
prospecitvely or retrospectively subject to the provisions of the
Constitution. But this principle cannot be applied in case of
delegated legislation. Giving an Act retrospective effect is
essentially a legislative function and it cannot be delegated.
4. Future Acts^-Legislature can empower the Executive to
adopt and apply the Laws existing in other States but it cannot
delegate the power by which the Executive can adopt the laws
which may be passed in future, as this is essentially a legislative
189

function.
5. Ouster of Jurisdiction of Courts-Legislature cannot
empower the Executive by which the jurisdiction of courts may
be ousted. This is a pure legislative Function.
Q. 17. What are the Legislative functions which can be
delegated and which cannot be delegated?

Ans. What Legislative Functions can be Delegated?-Pennissible


delegation covers the Legislative functions which can be
delegated. The following functions of law-making can be
delegated1. Commencement -Several statutes contain 'an appointed
day' clause which empowers the government to appoint a day
for that Act to come into force. In such cases the operation of
the Act depends on the decision of the government, e.g., S. 3 of
the Bombay Rents, Hotel and Lodging Housing Rates Control
Act, 1947 provides that Act shall come into force on such day as
the State Government may, by notification in the Official
Gazette, appoint in this behalf. Such a delegation is valid as Sir
Cecil Corr remarks "the legislature provides the gun and
prescribes the target but leaves the Executive the task of
pressing the trigger".
2. Supplying Details-If the legislative policy is formulated by
the Legislature, the function of supplying details as held in
Harishankar Bagla Vs. State of Madhya Pradesh, A.I.R. 1954 S.C.
190

465, may be delegated to the Executive for giving effect to ihe


policy. What is delegated is ancillary function in aid of exercise
of legislative power.
3. Inclusion-Sometimes the legislature after passing an Act
makes it applicable in the first instance to some areas and
classes of persons but empowers the Executive to extend the
provisions for the different territories and persons or
commodities, e.g.. S. 183 of the Indian Railways Act empowers
the government to apply the provisions to other transport
services also.
4. Exclusion-There are some statutes which empower the
government to exempt from their operation certain persons,
territories, commodities, etc. e.g., S. 30 of the Payment of
Bonus Act, 1965 empowers the government to exempt any
establishment or class of establishments from the operation of
the Act.
5. Framing of Rules-A delegation of power to frame rules, byelaws, regulations, etc., is not unconstitutional provided the
rules, by-laws and regulations are required to be laid before the
legislature before they come into force and povided further that
the legislature has power to amend, modify or repeal them.
What Functions cannot be DeIegatcd?-On account of "public
policy" restrictions are imposed upon the Legislature against the
delegation of functions or powers in the following matters1. Penal Laws-Under delegated authority no rule or regulation
should be made with a view to declare an act as an offence and
191

make it punishable. If it is to be done it should be expressly laid


down in the Parent Act. The limits of such delegation should
also be clearly provided. In the absence of such delineation the
Supreme Court would turn down the law as a case of excessive
delegation. Under Merchant Shipping Act, 1958, the
Government have been empowered to make breach of the
rules punishable, and extent of punishment
as well has been clearly provided. ll/S. 13 (i) (3) of the Sugar
Export Promotion Act, it has been provided that Central
Government may direct by rule that a breach of the rules
framed under the Act would ,be punishable with fine which may
extend to five thousand rupees.
2. Retrospective Effects-The Executive should not be
empowered to make rules to the retrospective effect, since it is
purely legislative act. If it is at all required under any
circumstance, it should have been clearly provided in the Act
and the delegated authority should have been clearly
mentioned in the Act. No rule should operate from any date
prior to the date of commencement of the Act, under which
they are framed. The existing practice shows that such a power
is given under exceptional circumstances. S. 85 of the Estate
Duty Act has conferred such a power on Central Board of
Revenue.
3. Substantive Power to Oust the Jurisdiction of Courts-The
range of jurisdiction of the court and the administration of
justice, are matters of purely legislative character. It is for the
Legislature to deal with such matters. No administrative body
should have power in delegated capacity to make any change in
192

the jurisdiction of any court of law or to prescribe that only a


particular set of cases would be taken by such Court or to bar
any court to under take any particular type of case. In this
connection Rule 6-A ofthe Cinematograph Rules, 1951, is
remarkable. It reads "no act or proceeding of the Board shall be
called in question on the ground merely of the existence of any
vacancy in, or defect in the constitution of the Board". The
committee on Subordinate Legislation found that the rule
effected only general jurisdiction of the Court to examine the
validity ofthe Acts.
4. Monetary and Financial Matters-The matters relating to
money should be exclusively dealt with by the representatives
of the people, i.e., Lok Sabha. The Committee on Subordinate
Legislation disapproved the practice of empowering the
Executive to frame rules for granting allowances and prescribing
the conditions under which allowances could be claimed. If the
Executive is to be given such a rule-making power, the rules
should not operate before they are approved by the affirmative
procedure in the House.
5. Taxation-Art. 265 provides that 'no tax shall be levied or
collected except by the authority of law. Here the term law
means statute law, that is an Act ofthe legislature. According to
Travancore High Court judgment in 1953, no tax can be levied
either by executive action or by the resolution of House.
Statutory rules cannot introduce taxes. In India, we find certain
instances where certain discretion is given to the Government
to vary within a fixed range. Under the Terminal Tax on Railway
Passenger Act, 1956, the Government is empowered to vary
193

rates by notification in the official Gazette or to discontinue the


levy under circumstances. The Committee on subordinate
Legislation did not approve the delegation of such powers in
such general language. It is not good practice to empower the
Executive in matters of taxation. Whenever it isextremely
necessary, the powers should be specified and limited in
specific conditions, the range of rates, things to be taxed, all
these details should be clearly laid down.
6. Compensation-The principles on which and the manner in
which compensaton is to be determined in case of compulsory
acquisition or requisition by State, should be in accordance with
Law. Although, after XlVth amendment, the question of amount
of compensation has become nonjusticiable, yet the principle
and manner on which compensation is to be awarded are
matters of essential legislative functions, which are of primarily
legislative concern. The Legislature should not delegate such
functions to the Executive. Executive should not be empowered
to exercise any discretion in such cases, because that would arm
the Executive with extra-ordinary powers, making it dominant
one.
Q. 18. What do you mean by theexpression 'excessive
delegation'? Does the Court disapprove the practice of
excessive delegation?
Ans. Meaning of the Excessive Delegation-It was held in ReDelhi Laws Act Case A.I.R. 1951and other subsequent cases that
there is a limit beyond which delegation may not go. The limit is
that essential legislative powers of legislation cannot be
194

delegated. If the Legislature delegates the essential legislative


function it is in excess of what it should do. It consists in
delegating the power to determine or choose the legislative
policy and of formally enacting the policy into a binding rule of
conduct. In this case the latter part of S. 2 of Part C State (Laws)
Act, 1950 which provided that provision may be made in any
enactment so extended for the repeal or amendment of any
corresponding law which is for the time being applicable to that
Part C State, was declared ultra vires; because the law to repeal
or abrogate existing law is an essential legislative function,
which cannot be delegated to the executive.
Again, in Registrar of Co-operative Societies Vs. V.K. Kunjabamu,
A.I.R. 1980, S.C. 350 Supreme Court reiterated that, "the power
to legislate carries within it the power to delegate"
but"excessive delegation may amount to abdication", and
'delegation unlimited may invite despotism uninhibited'.
Therefore, the principle is that "the Legislature cannot delegate
its legislative function. Legislature must be laying down policy
and principle and delegate it to fill in detail and carry out
policy".
Same principles were laid down by the Supreme Court in
Gwalior Rayon Mills Mfg. Ltd. Vs. Asstt. Commissioner of Sales
Tax and Others A.I.R. 1974 S.C. 1660 and Avinder Singh Vs. State
of Punjab A.I.R. 1979,S.C.321.
In D. S. Garwal Vs. State of Punjab A.I.R. 1959 S.C. 512 action
was taken against a member under the All Indian Service
(Discipline and Appeal) Rules, 1955 framed under S. 3 of the All
India Services Act, 1951. Under this Act the Central Government
was empowered to make rules for the regulation of
recruitments, and conditions of service for person appointed to
195

an All-India Service. Under it no express policy or standard was


laid down, but in terms of S. 4, rules "immediately before the
commencement of the Act and applicable to an All India
Service" were declared to be "rules made under this Act".
J. Wanchoo for majority repealed the argument for excessive
delegation in the following w.ords"By S. 3 the Central Government was given power to frame
rules in future which may have the effect of adding to, altering
or amending the rules accepted under S. 4 as binding. Seeing
that rules would govern the All-India Services common to the
Central Government and the State Governments provision was
made by S. 3 that rules would be framed only after consulting
the State Governments. At the same times Parliament took care
to see that these rules were laid down on the Table of
Parliament for 14 days before they were to come into.force and
they were subject to modification, whether by way of repeal or
amendment on a motion made by Parliament during session in
which they were so laid. This makes it perfectly clear that
Parliament has in no way abdicated its authority, but is keeping
strict vigilance and control over its delegate. Therefore,
regarding S. 3 along with S. 3 (3) of the Act it cannot be said in
the special circumstances of this case that there was excessive
delegation to the Central Government by S. 3 (1)..
In Hamdard Dawakhana Vs. Union of India, A.I.R. 1960S.C. 554,
S. 3(d) of Drug and Magic Remedies (Objectionable
Advertisements) Act, 1954, the statement in S. 3(d) was "any
other-disease or condition which may be specified in the rules
under this Act was held by the Court to have delegated
196

uncanalised powers in the hands of the executive, and


therefore, constituted excessive delegation. Here Parliament
has established no criteria, no standard and has not prescribed
any principle on which a particular disease or condition,is to be
specified in the schedule. The power of specifying of the
condition,is to be specified in the schedule. The power of
specifying diseases and conditions as specified in S. 3 (d) must,
therefore, hold to be going beyond permissible limits and hence
ultra vires.
It will appear from the cases contested on the ground of
excessive delegation that the principle that the Legislature
cannot delegate essential legislative function or it cannot
delegate the rule making power beyond a reasonable
permissible limit, has not been very strictly followed. The Courts
have applied this principle in a very liberal manner, and have
upheld broad delegations of power. The attempt of the Court
has been to seek to uphold legislation if they can find something
in the Act to pass as 'policy'.
The court is cautious against the dangers of excessive
delegation. J. Sublia Rao clearly stated in Vasantilal Maganlal
Sanjanwala Vs. The State of Maharashtra, A.l.R. 1961, S.C. 4 "an
overburdened Legislature or one controlled by a powerful
Executive may unduly overstep the limits of delegation. It may
not set down any standard for the guidance of Executive, it may
confer an arbitrary power of the Executive to challenge or
modify the policy laid down without reseving for itself any
control over subordinate legislation. This self effacement of
legislative power in favour of another agency either in whole or
in part is beyond the permissible limits of delegation.
In Devidas Gopal Krishnan Vs. State of Punjab, A.I.R. 1967 S.C.
197

1895, S. 5 of the Punjab General Sales Tax Act, 1948, as it


originally stood, was held void for suffering from excessive
delegation. It was observed by the court that under that section
an uncontrolled power was conferred.on the Provincial
Government to levy a tax on the taxable turnover of a dealer at
such rates every yea; as the said Government might direct.
Under that section Legislature practically effected itself in the
fixation of rates and it did not give any guidance either under
this section or under any other provisions of the Act, therefore,
it was ultra vires.
Thus, the trend of the Court appears to be in favour of
upholding the delegation. The Courts will make every attempt
to seek basis or ground to justify the delegation and it is only
when no such basis or ground is found then the delegation is
declared ultra vires. It is the reason why in this long history of
Supreme Courts' life, there were only a few occasions when the
delegation was held to be excessive, and therefore, bad.
With the passage of years, the court has been going on
curtailing the scope of judicial review to scrutinise the
excessiveness of delegation. This tendency reached its climax in
N.K. Papiah Vs. Excise Commissioner, A.I.R. 1975 S.C. 1007. The
liberal judicial attitude is justified by the court, in the State
ofTamil Nadu Vs. M/s. Hind Stores, A.I.R. 1981 S.C. 711, the
Supreme Court has laid down that any statute which provides
unguided power of legislation to the executive, shall be met
with disapproval by the Court. The practice of excessive
delegation would otherwise turn democracy into despotism.In
D.K. Trivedi and Sons Vs. State of Gujarat, A.I.R. 1986 S.C. 1323,
198

Supreme Court again dealt with the question of excessive


delegation of delegated Legislation.
Supreme Court in this case held that the contention that S.
15ofMineandMineral(Regulationand Development) Act, 1957 is
tainted with the excessive delegation, as no guideline is
provided to the State for the exercise of power. Supreme Court
held that S. 13 of the Act provides directives for the formation
of regulations for the formation of rules etc, the shortcoming of
excessive delegation goes by itself and the authorities
concerned are deemed to frame rules in accordance with that
section which provides for the regulation of power.
General Principles of Delegation-Various general principles
which emerge from the various judgments relating to the
delegation of legislative power are as follows1. The Constitution confers law-making power on the
Legislature and as such the said function cannot be delegated
by the legislature to the Executive. The legislature can neither
create a parallel legislature nor destroy its legislative power.
2. Delegation of legislative power is permissible provided this
does not amount to abdication of legislative function and policy
as laid down by the legislature.
3. The legislature cannot delegate essential legislative
function. The essential legislative function consists in the
determination of the legislative policy and making it a binding
rule of conduct.
199

4. If the legislature has performed its essential function of


laying down the policy of law, there is no constitutional bar
against delegation of subsidiary or ancillary powers in that
behalf to the executive for making the legislation effective,
useful and complete.
5. A statute delegating law-making powers to the executive
shall be invalid if it lays down no principles and provides no
standard for the guidance to the rule-making body.
6. The legislative policy can be formulated as broadly and with
as little or much detail as the Legislature thinks fit. It is not
necessary that the policy must be express, it may be implied as
well. It may be gathered fiom history, preamble, title scheme,
statement or objects and reasons. Guidance may be found
anywhere in the statute.
7. Power to repeal does not make delegation valid if
otherwise it is excessive, impermissible or unwarranted.
8. When a statute is challenged on the ground of excessive
delegation, it must satisfy two tests(i) Whether it delegates essential legislative function or
power, and
(ii) Whether the legislature has enunciated its policy and
principle for the guidance of the delegate.
9. Whether the legislature has performed the essential
legislative function and laid down the policy and the delegation
is permissible or not depends upon the circumstances of the
200

statute under consideration.


10. Delegated legislation may take different forms. However,
these principles apply to all forms of delegation viz., conditional
legislation, subordinate legislation, supplementary legislation,
sub-delegation etc.
Conclusion-Delegated legislation in the changed socio-economic
complexion has become a constituent element of legislative
power as a whole. Broad delegations of legislative power are
upheld where they relate to taxation, socio-economic legislation
and elected bodies. The doctrine of excessive delegation and
legislative policy are safety valve necessary for functioning of I
)< iikh ratic Government in developing countries.

Q. 19. Define Sub-delegation. Explain its object and validity.


How can the control over it be exercised? Or Write short note
on the "Delegatus non-potest delegare."
Ans. Definition of Sub-delegation-According to Davis, subdelegation means transfer or transmission of power from a
superior authority to its subordinate.
When a statute confers legislative powers on an administrative
authority and that authority further delegates those powers to
another subordinate authority or agency, it is called subdelegation.
Thus, what happens in sub-delegation is that a delegate further
delegates. This process of sub-delegation may go through one
stage to another stage. If Enabling Act is called the 'Parent' and
201

the delegated and sub-delegated legislation the 'Children', the


'Parent' in his own life time may beget descendants upto four or
five degrees, for example-S.3 of the Essential Commodities Act,
1955, confers rule-making power on the Central Government.
This may be called the first stage of delegation. U/S. 5, the
Central Government is empowered to delegate powers to its
officers, the State Government and their officers. Frequently
under this provision, the powers are delegated to State
Governments.
This may be regarded as the second stage of delegation (subdelegation). When the power is further sub-delegated by the
State Government to their officers, it may be characterised as
the third stage of delegation (sub-delegation). The working of
the process can be seen in the context of the Cotton Control
Order, 1955.
The Order is made by the Central Government under S. 3 of the
Act (first stage of delegation). Under the Order the functions
and powers are conferred on the Textile Commissioner (second
stage of delegation). Under Clause 10, the Textile Commissioner
is empowered to authorise any officer to exercise on his behalf
all or any of his functions and powers under the Order (third
stage of delegation).
Object of Sub-delegation -The need of sub-delegation is sought
to be suppported, inter alia, on the basis of the following
factors(i) Power of delegation necessarily carries with it the power of
further delegation and hence, the delegate has power to further
202

delegate; and
(ii) Sub-delegation is ancillary to delgated legislation, and
objection to such process is likely to subvert the authority which
the legislature delegates to the Executive.
The maxim 'delegatus non potest delegare' does not lay down a
rule of law. It merely states a rule of construction of a statute.
Generally, sub-delegation of legislative power is impermissible,
yet it can be permitted either when such power is expressly
conferred under the statute or can be inferred by necessary
implication. This is so because there is a well established
principle that a sub-delegate cannot act beyond the scope of
power delegated to him.
Validity of Sub-delegation-it is to be noted that the validity of
the sub-delegation may be examined under the following two
heads(i) Where the Statute, provides Express power to delegate,
and
(ii) Where the Statute provides Implied powers to delegate.
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 sub-delegation is within
the terms of the statute itself.
Thus, in Central Talkies Vs. Pwarka Prasad, A.l.R. 1961 under the
U.P. (Temporary) 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 either of a District Magistrate or any
Officer authorised by him to perform any of his functions under
203

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 Vs. Ministerof Agriculture, 1968, All. under the
Defence (General) 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, which was challenged. Holding the
direction ultra vires, the Court ruled that the sub-delegation of
power by the committee was not permissible.
In Ganpati Singh ji Vs. State of Ajmer A.l.R. 1955, the Enabling
Act conferred power on the Chief Commissioner who made
rules empowering the District Magistrate to devise his own
system and see that it was observed. The Supreme Court held
the rules to be ultra vires as the Enabling Act conferred power
on the Chief Commissioner and not on the District Magistrate,
and therefore, the action of the Chief Commissioner subdelegating that power to the District magistrate was declared
invalid.
In Ajaib Singh Vs. Gurbachan Singh, A.l.R. 1965, S. 3 of the
Defence of India Act, 1962 empowered the Central Government
to frame rules authorising detention of persons not below the
rank of a District Magistrate. S. 40, conferred power on the
State Government to delegate its powers to any officer or
authority subordinate to it. Supreme Court held that the power
204

of detention could be sub-delegated to any officer not below


the rank of District Magistrate. In this case the order of
detention was passed by the Additional District Magistrate, and
therefore, it was declared to be illegal.
But even if the Parent Act does not provide that the subdelegation should be made to an officer or authority not below
a particular rank, the Courts have required that the power can
be sub-delegated "only to competent and responsible persons.
Thus, in Hari Chand Vs. Batata Engg. C o. A.l.R. 1969, the power
of requisitioning property was passed by Additional District
Magistrate. The Supreme Court held that the order was ultra
vires There is well established principle thai a sub-delegate
cannot act beyond the scope of the power delegated to him.
Thus, in Blackpool Corporation Vs. Locker, 1948, under the
Defence Regulations, 1939 power was conferred on the
Minister to take possession of land. He issued circulars subdelegating the saidpower to the Blackpool Corporation. The
circulars laid down certain conditions and one
of them was that furniture should not be requisitioned.
However, the corporation requisitioned defendant's dwelling
house with furniture. The action was held ultra vires as it went
beyond the scope of power conferred by the Minister on the
Corporation.
If certain conditions are required by the delegate to be fulfilled
by the sub-delegate before the exercise of power, then those
205

conditions must be satisfied; otherwise the exercise of power


will be ultra vires.
(ii) Although there is no provision in the Enabling Act
authorising sub-delegation of power by the delegate but the
same may be inferred by necessary implication.
In States Vs. Bareno the Enabling Act empowered the President
to make regulations concerning exports and provided that
unless otherwise directed the functions of President should be
performed .by the Board of Economic Welfare. The Board subdelegated the power to its Executive Director who further subdelegated to his assistant, who in turn delegated it to some
officials. All the sub-delegations were held valid by the Court.
On the -other hand, in State Vs. Amir Chand, A.I.R. 1953, the
Punjab High Court held that the power of sub-delegation cannot
be inferred..
Criticism of Sub-delegation-The practice of sub-delegation has
been subjected to considerable criticism by jurists. The position
is well established that the maxim delegatus non potest
delegare (a delegate cannot further delegate) applies in the
areas of delegated legislation also and sub-delegation of power
is not permissible unless that power is conferred either
expressly or impliedly.
S.A. De Smith states, "there is strong presumption .against
construing a grant of delegated legislative power as
empowering the delegate to sub-delegate the whole or any
substantial part of the law-making power entrusted to it.
Control of Sub-delegation-Generally, sub-delegation is subject
206

to those controls which are exercised over delegated legislation.


The doctrine of substantive ultra vires applies to sub-delegation
also. A well established principle is that a sub-delegate cannot
act beyond the scope of the power sub-delegated to him.
As regards the question of laying down of policy for the
guidance of sub-delegate, the legislative policy formulated
under the Parent Act serves the purpose. It is not necessary for
the delegate to lay down the policy for the guidance of subdelegate.
It may, however, be pointed out that by the decision of the
Supreme Court in Narendra Kumar Vs. Union of India A.I.R.
1960, publication of sub-delegated legislation has been declared
to be necessary to give it legal force when the Parent statute
contains the formula i.e., requiring the notification of the rules
in Gazette.
Q. 20 (a). What do you mean by Judicial Powers of
Administration? What are its characteristics?

Ans. Meaning of Judicial Powers of Administration-It is to be


noted that in modern age the bulk of the decisions which affect
a private individual come not from courts but from
administrative agencies exercising adjudicatory powers. The
reason seems to be that since administrative decision-making is
also a by-product of the intensive form of government, the
traditional judicial system cannot give to the people that
quantity and quality of justice which is required to be given in a
207

Welfare State.
Definition of Judicial Powers of Administration-Administrative
Decision making power 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 fijncions of the administration have
been held to be quasi-judicial functions1. Disciplinary proceedings against students.
2. Disciplinary proceedings against an employee for
misconduct.
3. Confiscation of goods under the Sea Customs Act, 1878.
4. Cancellation, suspension, revocation or refusal to renew
licence or permit by licensing authority.
5. Determination of citizenship.
6. Determination of statutory disputes.
7. Power to continue the detention or seizure of goods
beyond a particular period.
8. Refusal to grant "no objection certificate' under the
Bombay Cinemas (Regulations) Act, 1953.
9. Forfeiture of pensions and gratuity.
10. Authority granting or refusing permission for retrenchment.
11. Grant of permit by Regional Transport Authority.
Characteristics of Judicial Powers of Administration-The
Donoughmore Committee on Ministers' Powers, 1932 analysed
the characteristics of a 'true judicial decision' and summed up
the attributes, the presence or absence of which stamped a
decision as administrative decision-making or quasi-judicial
action. The Committee was ofthe view that a true judicial
decision presupposes a 'lis' between two or more parties and
208

then involves four requisites(i) Presentatipn ofthe case.


(ii) Ascertainment of questions of fact by means of evidence
given by- the parties.
(iii) Ascertainment of questions of law on the basis of
submission of legal arguments.
(iv) A decision which dispo:^s of the whole matter by applying
the law to the facts
A quasi-judicial decision involves the first two determinants,
may or may not involve the third but never involves the fourth
determinant, because the place of the fourth determinant is in
fact taken by administrative action, the character of which is
determined by the minister's free choice involving expediency,
discretion and policy considerations.
Decision which are administrative stand on a wholly different
footing frpm quasi-judicial as well as from judicial decisions. In
the case of administrative decisions, there is no legal obligation
to consider and weigh submissions and arguments, or to collect
any evidence, or to solve any issue. The grounds upon which the
action is taken and the procedure for taking the action are left
entirely to the discretion of the authority.

Q. 20 (b). Define Administrative tribunal with reference to the


provisions of Indian Constitution. Explain the reasons for
thegrowth of the Administrative tribunal.
Are the tribunals recognised under the Indian Constitution? Or
Explain the characteristics and structure of administrative
209

tribunal. Also state the procedure to be followed by it.

Ans. According to Wade, "Tribunals are administrative only


because they are part of an administrative scheme for which a
Minister is responsible to Parliament, and because the reasons
for preferring them to the ordinary Courts are administrative
reasons". Even in Ameriea the system of Administrative
adjudication has administrative reasons". Even in America the
system of Administrative adjudication has been developed. In
this country administrative agencies discharge the functions of
Tribunals e.g.. Commissions, Boards or Officers.
Meaning of the Tribunals under the Indian Constitution-It may
be noted that the term "Tribunal" has been used under the
Indian Constitution but has no where been defined. From the
functional point of view, the position of Tribunal is somewhere
between a Court and the government department exercising
adjudicatory powers. Although in strict sense, Tribunals are not
Courts of law, yet they are invested with the powers to
adjudicate upon the issues affecting the rights of the citizens.
According to S. N. Jain, the term "Tribunal' has been used under
the Indian Constitution in three different senses(i) All administrative bodies exercising quasi-judicial functions,
whether as a part or parcel of the department or otherwise,
may be termed as "Tribunals". The only distinguishing feature of
these bodies as against other bodies exercising administrative
powers that these bodies are required to follow the rules of
natural justice in rendering decisions.
210

(ii) All those administrative adjudicatory bodies may be


regarded as Tribunals which are not under, the control of the
department involved in the dispute, and therefore, decide
disputes as a Judge free from any departmental bias. The
Income-Tax Appellate Tribunal may fall in this category as it is
under the control of the Ministry of Law and Ministry of Finance
and is free to decide matters impartially. Similarly, another
Tribunal free from departmental control is Railway Rates
Tribunal.
(iii) The term "Tribunal" as used in U/Art. 136 has a special
meaning in the sense that the authority must exercise inherent
judicial power of the 'State'. Accordingly, the test to identify a
Tribunal is not its control, composition or procedure but its
function. As a result of this functional test even departmental
bodies may be classified as 'Tribunal', e.g., Custodian General of
Evacuee Property, the Central Government exercising powers
U/S. 111(3) of the Compaines Act, 1956, the Central Board of
Revenue exercising appellate powers U/S. 190 of the Sea
Customs Act, 1878 and the Central Government exercising
powers U/S. 191 ofthe Sea Customs Act, 1878.
In Durga Shanker Mehta Vs. Raghuraj Singh, the Supreme Court
has thus defined 'Tribunal': "The expression 'Tribunal' as used in
Art. 136 does not mean the same thing as 'Court but includes,
within its ambit, all adjudicating bodies, provided they are
constituted by the state and are invested with judicial as
distinguished from administrative or executive functions."
*
Reasons for the Growth of Administrative Tribunals211

Administrative tribunals are established for the following


reasons1. Policy Considerations-In the changed socio-economic
context, while the Courts are accustomed to deal with cases
primarily according to law, the exigencies of modern
government postulate that some types of controversies be
disposed of by applying not law, pure and simple, but
considerations of policy as well, that is in "public interest", what
is "expedient" or what is "reasonable"; Such questions can be
solved not only on the basis of law and fact but also by applying
policy considerations. This cannot be accomplished by the
Courts of law. Therefore, Tribunals were established to handle
these complex problems.
2. Inadequacy of Judicial System-The traditional judicial
system proved inadequate to decide and settle all disputes
requiring resolution. It" is most complicated, expensive and
dilatory. It was not possible to expect speedy disposal of even
important matters e.g., disputes between employers and
employees, lock-outs and strikes etc. It was for these reasons
that Industrial Tribunals and Labour Courts were established,
which possessed the technique and expertise to deal with such
complex problems.
3. Merits of the System of Administrative Adjudication-The
system of administrative adjudication is cheap, speedy and
flexible. Judicial system is
low, costly, complex and formalistic. According to the Franks
Committee, "Tribunals have certain characteristics which often
212

gives them advantages over the Courts. These are cheapness,


accessibility, freedom from technicality, expedition and expert
knowledge of their particular subject".
4. Functional Approach to Socio-economic Problems Administrative Tribunals can avoid technicalities. They adopt a
functional rather than a theoretical and legalistic approach. The
traditional judicial system is conservative, rigid and technical.
Courts of law cannot decide cases without formality and
technicality. On the other hand, Administrative Tribunals are
not bound to follow strict rules or procedure and evidence. It is,
therefore, that they can. take practical view of the matter to
solve complex problems.
5. Need for Expertise-Sometimes, disputes are technical in
nature. The traditional judicial system cannot be expected to
appreciate and decide them. The reason is obvious because the
judge is generalist. On the other hand, Administrative Tribunals
are usually manned by experts who can deal with and solve
these problems; e.g., problems relating to atomic energy, gas,
electricity etc.
6. Preventive Measures-Administrative authorites can resort
to preventive measures e.g., licensing,rate fixing etc. Unlike
ordinary Courts of law, they have not to wait for the parties to
come before them with disputes. In a number of cases, these
preventive actions may be more effective and useful than
punishing a person after he has violated any legal provision.
7.

Policing of Preventive Measures-Administrative authorities


213

can take effective steps for policing of the aforesaid preventive


measures, e.g., suspension, revocation or cancellation of
licences, destruction of contaminated articles, etc. which are
not feasible through the regular Court of Law.
8. Functioning of Tribunals-Robsen observes; Administrative
Tribunals discharge their functions, "more rapidly, more
cheaply, more efficiently than ordinary Courts.....possess
greater technical knowledge and fewer prejudices against
government....give greater heed to the social interests
involved...decide disputes with conscious effort at furthering
social policy in the legislation".
Constitutional Recognition of Administrative Tribunals-There
are provisions under the Constitution of India which recognise
the existence and importance of Tribunals. Arts. 136 and 227
expressly mention the word "Tribunal". As provided U/Art. 136,
the Supreme Court has discretionary power to grant special
leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any
Court or Tribunal in the territory of India. U/Art. 227, it is
provided that every High Court has supervisory power over all
Courts and Tribunals through out the territories in relation to
which it exercises jurisdiction.
There are two Articles in Part XIV which provide for the
establishment of Tribunals Art. 323-A lavs Hnwn that Parliament
mav hv law nmvirlp for the adjudication or trial by
Administrative Tribunals of disputes and complaints with
respect to recruitment and conditions of service of persons
214

appointed to public services and posts in connection with the


affairs of Union or of any States of any local or other authority
within the territory of India or under the control of the
Government of India or of any corporation owned or controlled
by the Government."
Art. 323-B lays down that the appropriate legislature may, by
law, provide for the adjudication or trial by Tribunals of any
disputes, complaints or other offences with respect to all or any
of the matters enumerated therein with respect to which such
legislature has power to make iaw.
Characteristics of Administrative Tribunal-According to the
Supreme Court, a tribunal must have the following
characteristics(i) The proceeding before it must commence on an application
which is in the nature of a plaint.
(ii) It has the same powers as regards discovery,
inspection,taking evidence, as are possessed by a Civil Court.
(iii) Witnesses are examined and cross-examined as in a Court
of law.
(iv) The tribunal be represented by a legal practitioner.
(v) The tribunal is required to decide on the basis of evidence
adduced and according to the provisions of the statutes.
(vi) Members of the tribunal are persons qualified to be Judges.
A few more characteristics were added to this list by the
Supreme Court in later decisions".
(vii) It is required to sit in public.
(viii) It must be capable of giving determinative judgment or
215

award affecting the rights and obligations of the parties.


(ix) It must be endowed with State's inherent judicial power,
meaning thereby that it has statutory origin.
Structure of Administrative Tribunals-An administrative tribunal
is the creation of statute and thus, it has a_statutory origin. In
some cases they may be established by the executive under
delegated legislation. There is no uniform pattern in their
organisation. Diversity looms large in the structure of
administrative tribunals. An administrative tribunal may be an
integral part of administrative department which is given the
task of implementing law and policy. These bodies may have
both adjudicatory and regulatory functions to discharge. In this
way, even departmental bodies'may be classified as tribunals,
e.g., Custodian-General of Evacuee Property, Central
Government, Central Board of Revenue etc.
A tribunal may consist of one member or more members.
Where the tribunal is a multi-membered body, one member is
always a Chairman. At times legal knowledge or training may be
prescribed to adjudicate, sometimes no such qualification may
be laid down. Even knowledge in some other technical field may
be required e.g., a Bench of the Income-tax Appellate Tribunal is
to consist of one legal and one accountant member.
As regards appointment and dismissal of members of tribunals,
it is in the hands of the executive, execpt in the case of few
tribunals where restrictions have been imposed.
In strict sense, tribunal is an autonomous body which is not a
part and . parcel of the government department. Autonomous
tribunals are not many in India. f5r example; Election
216

Commission is an autonomous tribunal. The term 'tribunal' has


been used under Art. 136 of the Constitution and the Supreme
Court has interpreted it liberally.
Procedure to be Followed by Administrative Tribunals-In India,
there is no uniform pattern of procedure to be followed by the
administrative tribunals. There is a bewildering variety of
procedures. Sometimes the procedure is laid down in the Act
under which the tribunal is constituted. At times, the tribunal is
left free to devise its own procedure. Sometimes, the tribunal is
endowed with the powers of a Civil Court in matters of
compelling attendance of witsnesses and production of
documents. But in a large number of cases the tribunal is
required to follow only the minimum norms of procedure as
embodies in the principles of natural justice. This is so because
the principles are not rigid and do not apply uniformly in all
situations. However, such uncertainty is sometimes responsible
factor in justifying arbitrary actions.
The same principles have been accepted in India also. The Law
Commission in its Fourteenth Report has said that
administrative tribunals perform quasi-judicial function and
they must act judicially and in accordance with the principles of
natural justice.
Thus, it is essential that administrative tribunals must act
openly, fairly and impartially. They must afford a reasonable
opportunity to the parties to represent the case and to adduce
the relevant evidence. Their decisions must be the objective
and not the subjective. f
217

Q. 21 (a). What do you mean by Administrative Tribunal?


Distinguish it from the Court.
Ans. Definition of Administrative Tribunal1. According to T.C.A. Ramanujacharia, "There are a large
number of laws which charge the Executive with adjudicatory
functions and the authorities so charged are
in the strict sense, administrative tribunals. Administrative
Tribunals are agencies created by specific enactments to
adjudicate upon controversies that may arise in
the course of the implementation of the substantive provisions
of the relative enactments. Unlike that of a court, the
jurisdiction of administrative tribunal is not
general but specific".
2. According to Wraith and Hutchesson, "To the politician
they are part of the judicial system in that they enable the
ordinary man to obtain a
Administrative Law 89
cheap, fair and impartial hearing when he is affected by
218

administrative action; to the lawyer they are not fully within the
legal fold since they are; in certain
aspects, an appendage of bureaucracy".
in this way, Administrative Tribunals may be defined as
administrative bodies set-up solely to discharge quasi-judicial
functions. In certain circumstances, justice
lies not in disposal of case according to law but in fair
disposition, for example, in cases like licencing, nationalisation,
fixing priorities in planning and action,
the decision is to be reached not according to law as such but
on the ground of policy considerations. Therefore, such matters
are quite unfit for courts and
administrative bodies are set up to adjudicate upon such
matters.
It should be noted that an administrative body will be
administrative tribunal only when that body is constituted by
the State and is vested with some judicial powers
of the State. In A.Ph.L. Conference, Shillong Vs. W.A. Sangana,
A.l.R. 1977, Supreme Court held that, "The principal test, which
must necessarily be present in
determing the character of the authority as tribunal is whether
that authority is empowered to exercise any adjudicating power
of the State and whether the same has
219

been conferred on it by any statute or a statutory rule".


It is to be noted that an administrative tribunal is established
under the law to adjudicate on the matters while acting
judicially free from the technical rules of
procedure and evidence of a court of law keeping fully in view
the social needs and accepted public policy. The tribunals are
generally given the power of a Civil
Court enjoyable under the Code of Civil Procedure in the
matters of summoning witnesses, compulsory production and
discovery and documents, receiving of evidence on
oath and on affidavit, issuing commissions etc.
Characteristics of Administrative Tribunals(i) Tribunals are established by the Executive under the
provisions of
statute.
(ii) Although they are required to act judicially, they perform
quasi-judicial functions.
(iii) Tribunals are independent and impartial and work without
being influenced by the Government.
. (iv) They have the powers of Civil Courts in certain matters and
their proceedings are considered to the judicial proceedings.
(v) Tribunals are required to follow the principles of natural
justice in deciding the cases.
(vi) Tribunals are not bound to follow the technical rules of the
procedure and evidence prescribed by the Civil Procedure Code
and Evidence Act. But they adopt the
220

procedure which may be prescribed in the statute, or may be


prescribed by the rules made under the statute or may be
adopted by the
90
tribunal itself.
(vii) Tribunals are not courts in the proper sense of the term.
Distinction between Administrative Tribunal and theCourt1. According to the Committee on Ministers' Powers, a judicial
decision or a decision of a Court presupposes a 'lis' between the
parties and then follows four
elements : (i) presentation of the case; (ii) ascertainment of
question of fact by means of evidence given by the parties; (iii)
ascertainment of question of law on
the basis of the submission of legal arguments; (iv) a decision
which disposes off the whole matter by applying law to the facts
whereas, the decision of an
Administrative Tribunal involves first two elements, may or may
not involve third, but never the fourth element because
Administrative Tribunals only apply'policy'to
facts.
2. There is no uniform procedure which the Administrative
Tribunals are required to follow exercising adjudicatory powers
whereas the Courts follow a uniform,
fixed statutory procedure.
3. The Courts exercise only judicial funcions whereas
221

Administrative Tribunals undertake various other administrative


functions.
4. It is held by the Supreme Court in Associated Cement
Companies Ltd. Vs. P.N. Sharma A.I.R. 1965 that the term
tribunal is wider than Court. All Courts are
tribunals but all tribunals are not courts.
5. In Labour Relation Bd. Vs. John East Iron Works, 1948, it
was said that the term has been pointed out that a Court can
decide a question only objectively on
the materials before it and applying the law to them whereas an
Administrative Tribunal, even though it may have such meterial
before it may be guided by the
consideration of policy as well, in which the tribunal itself may
be interested.
6. As pointed out in Wilkinson Vs. Banking Corporation, 1948,
a judge is an impartial arbiter and cannot decide a cause in
which he is interested. But an
Administrative Tribunal, may itself be a party to the case to be
decided by it.

222

Q. 21 (b). What are the circumstances which necessiated the


creation of Administrative tribunals?

Ans. Circumstances which Caused the Creation of


Administrative Tribunals- In modern welfare States,
Administrative Tribunals were created due to following
circumstnaces1. Technical Procedures and Formalities of the Court-The
procedure adopted by the court is very much technical and the
approach of the Court is highly individualistic and ritualistic. In
modern welfare States, there may be several matters or
disputes which cannot be efficiently and justly decided by such
judicial process. Not only this solving many of the disputes
pertaining to socio-economic programme or legislation of
modern times is not _ possible with the formal impartial
position taken by the judges of the ordinary Courts of Law.
2.Costly Decision of the Court-Secondly, a litigation before a
Court of Law is time consuming, costly as well as luxury for a
rich man. The vast number of questions that arise from day to
day, affecting the interest of the thousands of people, must be
disposed of much more cheaply than can be done in the costly
Courts of Law.
3. Delay in Decision Amounts to Injustice-A litigation before a
Court of Law is time consuming whereas the questions arising
from day to day and affecting the interest of thousands ofthe
people are required to be disposed of earliest. Indeed, the
223

Courts would not have time to take over all this work in addition
to what they already have. The delay in disposing of such
questions result in failure of justice. In Mahavir Jute Mills Vs.
Shibban Lai Saxena, 1975, after a long drawn legal battle, his
case was finally decided after a period of twenty-five years,
when most of the 400 persons who claimed justice on the
ground of wrongful dismissal had died and the new apppointees
in their place had completed twenty-five years of service.
Therefore, as it became clear that the weight of social
legislation would be intolerable both for the people and the
Court, the burden has to be shared by the administrative
tribunals.
4. Administrative Tribunal is Less Formal-The administrative
adjudicatory system came into existence with intent to carry
out the modern government plans of public health, education,
planning,social security, transport, agriculture, industrialization
and national assistance. It provided a system of adjudication
which was informal, flexible, cheap and rapid.
Q. 21 (c). Explain the growth of the Administrative Tribunals in
India.
Ans. Growth of Administrative Tribunals in India-The present
concept of modern welfare state and its plans of
industrialisation, public health, education, planning, social
security, transport, agriculture and national assistance gave rise
to multiple problems, the solution of which required technical
and expert knowledge, which the ordinary Courts were lacking.
Not only this, thousands of disputes arose due to multifarious
224

social legislation which required speedy justice. And it was felt


that only administrative tribunals could solve these problems.
Administrative tribunals are established under the law, although
its members are appointed by the Government. It decides the
matters while acting judicially, free from the technical rules of
procedure and evidence of a Court of law keeping fully in view
the social needs and accepted public policy.
It may be noted that administrative tribunals are
constitutionally recognised U/Arts. 132,226,227 and Part XIV-A
(Arts. 323 A and 323 B) of the Constitution of India. A number of
administrative tribunals are functioning in the country already
and many more are being created by statutes to deal with
specific problems. A few of the statutes creating tribunals are:
The Urban Land Ceiling (Amendment) Act, 1976; The Smugglers
and Foreign Exchange (Forfeiture of Property)Act, 1976.
It is to be noted that Art. 323 A or 323 B is no bar in constituting
a tribunal outside those two Articles. It cannot be said that
Tribunals cannot administer justice and that they fall outside
the term "administration of justice" as contained in entry 11A of
the Concurrent List. If the tribunal acts beyond jurisdiction then
its order can be challenged. In Andhra Pradesh State Electricity
Board Vs. M.A. Hoi Azami, A.I.R. 1992 an employee of State
Govt, was sent on deputation to Authority in the same State.
Employee claimed salary admissible to promotional post in that
authority before the Tribunal. It was held that the Tribunal had
no jurisdiction to entertain his claim it being unconnected with
the public post in Parent Department.
225

Like England, in India also the problem of keeping these


administrativve tribunals under the control of the ordinary
Court drew the attention ofthe public. The Law Commission of
India which submitted its 14th Report in 1978, presented this
problem as "some of these affect valuable rights of the citizens
and impose onerous obligations upon parties. These may be
broadly classified as our revenue and taxation law, labour laws
and land laws. Some of them provide the right of the appeal or
revision even to higher administrative authorities. Others confer
right of appeal and revision but these lie to the higher
administrative authority and not to any judicial authority. It is
only in few cases that we find an ultimate appeal or revision
given to a court of. law. Finally, in a number of statutes care is
taken to exclude in express terms the appearance of lawyer
before the administrative bodies and to bar the courts from
entertaining any appeal or revision.
Recommendations of the Law Commission1. The existing jurisdiction of the Supreme Court and the High
Court which enables them to examine to a limited extent the
notion of administrative bodies should be maintained
unimpaired.
2. Decision should be demarcated into: (a) judicial, quasijudicial and (b) administrative.
3. Injudicial and quasi-judicial decisions, an appeal of the facts
should be to an independent tribunal presided over by a person
qualified to be a judge of High Court. He may be assisted by a
person or persons with administrative or technical knowledge.
226

The tribunal must function with openness, fairness and


impartiality as laid down by the Franks Committee.
4. In the case of judicial or quasi-judicial decisions, an appeal
or a revision on question of law should lie to the High Court;
special machinery can, if necessary, be provided to assist the
High Court judge. The suggestions made by the Spens
Committee may be adopted in this connection.
5. In the case of administrative decisions provision should be
made for giving reasons. This will enable one to test the validity
of the decisions through the mechanism of appropriate wirts.
6. The tribunals delivering administrative judgments should
conform to the principles of natural justice and should act with
openness, fairness and impartiality.
7. The relevant legislation should provide a simple procedure
for the functioning of tribunals. It should also provide for the
application of the principles of natural justice clearly. Such
procedure will be applicable to the functioning of all tribunals in
the absence of special provisions in the statutes constituting
them.
It is to be noted that the possibility to appoint a Supreme
Appellate Tribunal on the pattern of Conseil d'Etat is ruled out
because the power of superintendence o^er all tribunals was
granted to the respective High Courts of the State U/Art. 227 of
the Constitution of India. Art. 227 provides that High Court shall
have power of superintendence over all courts and tribunals in
227

the territory with respect to which they have jurisdiction. The


High Court has power to correct any decision of a tribunal
within its jurisdiction through the power of superintendence.
In Hira Singh Vs. Custodian Evacuee Property Jammu, A.l.R.
1995 custodian cancelled the claim of his predecessor after
lapse of 3 years without notice to party. In revision the tribunal
dismissed the revision with-out examining the record. The High
Court set-aside the order ofthe tribunal as well as of custodian.
It is to be noted that in appropriate cases High-Court can
exercise supevisory power U/Art. 227 of the Constitution.
It should, however, be noted that the Indian Law has borrowed
several points from the recommendations of the Franks
Committee and certain improvements have been made in the
working of the tribunal system in India.

Q. 22. What do you mean by the Judicial Control of


Administrative Action? What are the different modes of
judicial control (Review) in India?
Ans. Meaning of Judicial Control of Administrative Action-The
Judicial Control of Administratve action means the
Constitutional powers of the Supreme Court and High Court to
control the administrative authorities if they exceed the limit to
do what they should do, omitor abuse the powet s given to
them fordoing the administration. The judicial control of
Administrative action is the most important aspect of the study
228

of the Administrative law. It is exercised through the Supreme


Court and High Court with the help of Articles 32, 136, 226 &
221.
It is to be noted further that in the context of increased powers
of the administration, judicial control has become an important
area of administrative law, because Court have proved more
effective and useful than the Legislature or the administration
in the matter. "It is an accepted (saying, saw, maxim) axiom
observed Prof. Jain & Jain that, "the real (core, root, essential)
kernel of democracy lies in the Courts enjoying the ultimate
authority to restrain all exercise of absolute and arbitrary
power.
Without some kind of judicial power to control the
administrative authorities, there is a danger that they may
commit excess and degenerate into arbitrary authorities, and
such a development would be inimical to a democratic
Constitution and the concept of the rule of law."
Judicial Review in India-Courts occupy key position in India as
regards judicial control of administrative action. Since we
adopted the concept of welfare State, it became exceedingly
necessary that the rule of law and conformity to the provisions
of the Constitution are maintained and the multitudinous
administrative authorities are brought under the control of
Courts of law. In the exercise of their statutory, non-statutory
powers, it has to be seen that they do not violate any of the
mandates of the Constitution.
229

Modes of Judicial Control of Administrative Action-It is to be


noted that we have inherited the system of the judicial review
from Britain on the basis of which Indian Courts have built the
super-structure of control mechanism. In short, the various
modes of Judicial Review (Control) of Administrative action are
as underI. Public Law Review
1. Writ of Certiorari;
2. Writ of Prohibition;
3. Writ of Mandamus;
4. Writ of Quo Warranto; and
5. Writ of Habeas Corpus.
II. Private Law Review
1. Injunction;
2. Declaration;
3. Suit for Damages;
4. Affirmative action for the enforcement of public duties.

Q. 23. Discuss briefly the writ jurisdiction of the High Courts in


India U/Art. 226 of the Constitution. Or
What is the scope of the writ issuing powers conferred on High
Courts under Art. 226 to check the administrative authorities
from assuming arbitrary powers? ' Or
Wht are the principles for the exercise of the writ jurisdiction
under Art. 226. Or
What are the limitations which the High Court may itself place
for the exercise of its jurisdiction? Or
230

Who are entitled to get the remedy through writs U/Art. 226?

Ans. Scopeof the Writ Issuing Powers of High Court U/Art. 226The writ issuing powers conferred on the High Courts under Art.
226 can be exercised to enforce not only for a Fundamental
Right but a non-fundamental right also. In this sense the writ
jurisdiction conferred on the High Courts U/Art. 226 is wider
than that conferred on the Supreme ( ourt U/Art. 32. This is so
because Supreme Court can act U/Art. 32 only when there is
violation of a Fundamental Right whereas a High Court can act
when a Fundamental Right or any other legal right is violated.
The following are the general principles relating to Art. 2261. Art. 226, empowers the High Court to issue the writs,
direction or order in the nature of Habeas corpus, Mandamus,
Prohibition, Quo-warranto and certiorari(a) For the enforcement of any ofthe right conferred by Part III,
and
(b) For any other purpose.
Under the First Part, a writ may be issued U/Art. 226 only after
a decision that the aggrieved party has" a fundamental right
and that it has been infringed. Similarly, under the Second Part
writ may be issued only after a finding that the aggrieved party
has a legal right which entitles him to any of the aforesaid writs
and that such right has been infringed.
2. Where there has been an infringement of fundamental
right, an application U/Art. 226 should not be thrown out simply
231

on the ground that the proper writ, has not been provided for.
The petitioner is, in such cases, entitled to a suitable order for
the protection of his fundamental rights. It has been held in
Yasis Vs. Town Area Committee, 1952 S.C.R. 572, that where the
petitioner has asked for relief in a very wide form, the Court
would issue the order in the proper form. A High Court is as
much bound as the Supreme Court to enforce the fundamental
rights guaranteed by the Constitution.
3. Art. 226, confers on all the High Courts very wide powers in
the matter of issuing writs which they never possessed before.
There are only two limitations placed upon the exercise of these
powers by a High Court(a) That the power is'to be exercised "throughout the
territories in relation to which it exercises jurisdiction."
(b) That the persons or authority with respect to whom the
High Court is empowered to issue the writs "must be within
those territories" and this implies, that they must be amenable
to the jurisdiction of the Court either by residence or location
within those territories.
4. But though the powers of the High Courts U/Art. 226, are
discretionary and no 'imits can be placed upon that direction
yet it must be exercised along with recognjsed lines and not
arbitarily. Thus, in the exercise of this discretionary jurisdiction,
the High Court should not act as Court of Appeal or Revision to
correct mere errors of law or of fact.
Both the Arts. 32 and 226 of the Constitution provide for the
control over administrative acts by either of the following
232

means(i) By issuing direction to the administrative bodies;


(ii) by issuing orders; and
(iii) By issuing writs including the-writs in the nature of Habeas
corpus, Mandamus, Certiorari, Prohibition and Quo-warranto or
any of them.
In this way, the power of the Supreme Court and respective
High Courts are quite sufficient to check the administrative
authorities from assuming despotic or arbitary powers.
Principles on the Basis of which Writ Jurisdiction is ExercisedPrinciples for the exercise of writ Jurisdiction U/Art. 226 are as
under1. Delay and Laches-Iri the exercise of the writ jurisdiction the
conduct of petitoner will be taken into consideration. Inordinate
delay in invoking the jurisdiction may be a good ground for
declining to iss!K writ. Although the writ issuing power of the
Supreme Court U/Art. 32 and High Court U/Art. 226 for the
enforcement of Fundamental Right is mandatory, yet the Court
may decline to grant relief if the petitioner is guilty of laches. In
R.S. Makashi Vs. I.M. Menon, A.I.R. 1982, a writ petition -was
filed in the High Court, complaining of the infringement of
Fundamental Rights guaranteed U/ Arts. 14 and 16, eight years
after the government action had been taken. Preliminary
objection was raised against the maintainability ofthe writ
petition on the ground of laches but it was over ruled, by the
High Court. Disagreeing with the view of High Court, the
233

Supreme Court held that the writ petition was "highly belated"
and was as such liable to be dismissed on the ground of "laches
and delay".
In State of M.P. Vs. Bhailal, petitons were filed in the High Court
of M.P. for refund of tax paid under the provisions held to be
unconstitutional. Some of the petitions were filed with in the
period of three years from the date of decision holding the
provisions ultra vires, whereas others were filed after three
years. On the analogy of Limitation Act, the Supreme Court
allowed the former group but dismissed the later.
2. Alternative Remedy-Availability of an adequate and
efficacious alternative legal remedy is a ground for the Court to
decline to exercise its writ issuing power. However, this
principle is not to apply where the enforcement of Fundamental
Rights either U/Art. 32 or 226 is involved. The law is that the
Supreme Court and High Courts cannot refuse relief U/Arts, 32
and 226 on the ground of alternative remedy if the person
complains ofthe infringement of his Fundamental Rights.
Since the High Courts are the apex judicial institutions in the
States, and it is but natural that if an alternative, suitable and
equally efficacious remedy is available to the party, they may
refuse to exercise the discretionary jurisdiction and direct the
aggrieved party to first avail the said alternative remedy. Thus,
if permit has been refused under the provisions of the Motor
Vehicles Act, 1939. a person aggrieved may take appropriate
action under the provisions of the Act and a petitor U/Art. 226
is not maintainable.
234

3. Res-judicata and Constructive Res-judicata-The doctine of


res-judicata which is founded on 'public policy' applies in the
area of writ jurisdiction as well. If a writ petition has been
considered and dismissed, the same petition on the same
ground cannot be filed in the same Court again. In Daryao Vs.
State of U.P. A.I.R. 1961, the Supreme Court has placed the
doctrine ofres-judicata on a higher footing. In this case, the
petitioner has filed a writ petition in the High Court of Allahabad
U/Art. 226 and they were dismissed. Then they filed subsequent
petitions in the Supreme Court U/Art. 32 for the same relief and
on the same grounds. Preliminary objection was raised against
the maintainability of the petition on the ground that the prior
decision of the High Court would operate as res-judicata to a
subsequent petition U/Art. 32. The Supreme Court accepted the
contention and dismissed the petition.
The principle of constructive res-judicata which means that a
plea that could have been taken by a party in a proceeding
between him and his opponent, if not taken at a.proper time,
would disentitle that party to take the plea against the same
party in a subsequent proceeding on the same cause of action is
also applicable to writ petitions U/Arts. 226 and 32.
Exception-it must be noted that the doctrine of res-judicata and
constructive res-judicata do not apply in the case of Habeas
Corpus petitions.
4. Anticipatory Relief-The jurisdiction conferred on the
Supreme Court U/Art. 32 and on the High Court U/Art. 226 is
very vast and comprehensive. However, Courts have imposed
235

certain self-limitatitons on the vastness of such power. One of


such limitation is that a Court can entertain a writ petition when
the petitoner has already suffered a damage or injury or when
there is a reasonable likelihood of injury being caused, but
would not make any pronouncement merely on hypothetical
questions. No advisory opinion or declaratory judgment would
be given on the Constitutionality of a legislation or the validity
of an administrative action in the absence of some concrete
injury or controversy. In W.G. & S. Merchants Association Vs.
State of Maharashtra, A.I.R. 1968 petition was filed for
declaration that the Maharashtra Food-grains Dealers' Licensing
Order, 1936 was unconstitutional and void. The High Court did
not entertain the petition because there was no violation of the
order and no action had been taken by the government against
the petitioners for any such violation.
5. High Court to be Approached First-The jurisdiction of High
Court in dealing with a writ petition U/Art. 226 is substantially
similar as that of the Supreme Court U/Art. 32 and in this way
the scope of writs under both the articles is concurrent.
However, there is a growing tendency to file petitions before
the Supreme Court even where it could have been filed before
the High Court. With the view to discourage this tendency the
Supreme Court ruled in P.N. Kumar Vs. Municipal Corpn. of
Delhi, 1987 that in cases where writ can be filed before the High
Court parties should not approach the Supreme Court.
6. Remedial Measure-For the purpose of enforcing the
Fundamental Rights U/Art. 32 of the Constitution, the power of
the Supreme Court is not only injunctive in ambit to prevent
236

violation of Fundamental Rights but is also remedial in scope to


provide relief in case of breach of such rights. Thus, the Court
has implicit power to grant remedial assistance by way of
compensation in cases involving the breach of the said rights.
The same principle shall apply to High Court also.
Against whom Writ can be Issued?-A writ can be issued against
the following1. State-As a general rule, a writ lies against the State as
defined U/Art. 12 of the Constitution. Thus, a writ may be
issued against the Parliament or the Legislature, the Executive
or the Government, the Judicial or the Courts and the local or
other authorities. The definition of the term 'State' is meant to
indicate the authorities which are instrumentalities or agencies
of the Government. There is no dispute that all Constitutional
and administrative authorities are'amenable to the writ
jurisdiction of the Courts. Thus, writs can be issued against the
Government of India, the President acting in official capacity,the
Government of State, the Governor of State acting in his
personal capacity, Government Departments, Public Service
Commission arid Election Commission.
There is no mention of Courts as such in Art. 12, but they may
pose a threat to the Fundamental Rights of the people in the
exercise of their rule-making or administrative powers. In Prem
Chand Garg. Vs. Excise Commr. A.l.R..1963, the Supreme Court
struck down certain rules made by it as violative of
Fundamental Rights. But a Court does not come under Art. 12 in
the exercise of its judicial powers adjudicating upon the
237

conflicting claims of the people. Therefore, no writ can be


issued against High Court for an adjudication order in
proceedings U/Art. 32 on the ground that the order violates
Fundamental Rights of the citizens. (Naresh Vs. State of
Maharashtra, A.l.R. 1967, S.C. 1).
2. Other Authorities-Art. 12 winds up the list of authorities
falling within the 'State' by referring to "other authorities"
within the territory of India or under the control of the
Government of India. Many authorities have been held to
be.'State' U/Art. 12. Such authorities are of two kinds(a) Statutory Bodies-All the bodies created and incorporated by
the statute are 'State' within the meaning of Art. 12. In Sukhdev
Singh Vs. Bhagatram, A.l.R. 1975, the dismissed employees of
three statutory corporation i.e., (i) Oil and Natural Gas
Commission, (ii) Life Insurance Corporation, and (iii) Industrial
Finance Corporation claimed that they should be reinstated.
The corporations were incorporated under the Oil and Natural
Gas Commission Act, 1959, and the Life Insurance Corporation
Act,
1956 and the Industrial Finance Corporation Act, 1948. The
Supreme Court held that these three corporations were 'other
authorities' U/Art. 12 of the Constitution.
Numerous statutory bodies have been held to be 'authorities'.
Some of them are : a State Electricity Board constituted by a
statute, a University established by a statute, International
Airport Authority, Road Trnasport Authority, Daniodar Valley
Corporation, Reserved Bank of India, Khadi and Village
238

Industries Board, State Bank of India.


(b) Non-Statutory Bodies-The Law relating to the amenabilities
of non-statutory bodies which include companies registered
under the Indian Companies Act and Societies Registered under
Societies Registration Act is still in a developing state and has
not reached the state of maturity. iaRamana Daya Ram Reddy
Vs. International Airport Authority of India, the Supreme court
adopted the test that if a body is an instrumentality or agency
of the Government it would be an 'authority'.
3. Any Person-Every High Court is empowered U/Art. 226 to
issue direction, order or writs to "any person" or "authority"
including the Government The question for consideration is
whether the High Court has power to issue a direction, order or
writ against a private individual. In this context, the expression
"any person" in Art. 226 would only mean any person to whom
according to well established principles; a writ would lie.
A writ can lie generally against a person who has some statutory
or public duty to perform, and not against purely private
individuals having no statutory or legal existence. For example;
no writ of "Prohibition" is issued against an Election Committee
of political party. Similarly, a writ cannot lie against a Cooperative Bank to quash an order terminating the services of an
employee. In the same way, writ was not issued against the
Board of Directors of the Co-operative Society. However, it
cannot be said that Under no circumstaces a writ can be issued
against a private person. The expansive and extra-ordinary
powers of High Courts U/Art. 226 indicate and so can affect any
239

person even a private individual. Rohtas Industries Ltd. Vs.


Rohtas Industries Staff Union, A.I.R. 1976.
A writ of Habeas Corpus can be issued not only against the
'State' but also against a 'private individual'. According to
Hidayatulla, J., "The writ of Habeas Corpus can be issued not
only for the release from detention by the State but also for
release from private detention". Besides the writ of Habeas
Corpus, there are certain provisions in Part III which indicate
that the writ machinery would be availabe against priviate
persons also.
Who are Entitled to Get Remedy through Writ?-The general rule
is that a person whose right, granted under Chapter III of the
Constitution has been infringed can apply for a writ U/Art. 226.
The person applying for the issue of the writ must have a 'locus
standi'. The court recently have shown wide, flexibility and
liberality of approach in the matter of locus standi. It was
realised by the courts that if the right to challenge an
administrative action is confined to aggrieved person only many
unauthorised and arbitrary actions of the bureaucracy maygo
unchallenged as the aggrieved party may never go for a
challenge on account of its helplessness. S.P. Gupta Vs. Union of
India, A.I.R. 1982 S.C. 378; Fertilizer Corporation Kamgar Union
Vs. Union of India, A.I.R. 1981 S.C. 244. In State of Orissa
Vs.Madan Gopal, the Supreme Court observed"The concluding words of Art. 226 have to be read in the
context of what proceeds the same. Therefore, the existence of
the right is the foundation of the exercise of jurisdiction of the
240

Court under this Article.


So a person who seeks remedy U/Art. 226 must prove that(i) He has a right, enforceable by law under the Constitution.
(ii) There has been violation or infringement of such a right.
The above principle, viz., the existence of the right being the
foundation of the exercise of jurisdiction, is subject to the
following exceptions(i) Firstly, an application for the writ of Habeas Corpus may in
certain circumstnaces be made by a relation or friend of the
person under detention.
(ii) Secondly, in an applicaion for quo-warranto it is not
necessary that the applicant should have suffered a personal
injury or should seek redress of a personal grievance.

Q. 24. What do you mean by prerogative writs? Explain the


nature and scope of Habeas Corpus? What is the object of
Habeas Corpus? Or
Can successive applications for Habeas Corpus be moved?
State the procedure and grounds of issuing of Habeas Corpus.
Who may apply for it?

Ans. Meaning of Prerogative Writs-The five writs specifically .


mentioned U/Arts. 32 and 226 e.g., Habeas Corpus; Certiorari;
Prohibition; Mandamus and; and Quo-warranto are known in
English Law as prerogative writs, for they had originated in the
241

King's prerogative power of superintendence over the due


observance of law by his officers and tribunals. The prerogative
writs are extra-ordinary remedies intended to be applied in
exceptional cases in which ordinary legal remedies are not
adequate. Thus, the Supreme Court and the High Courts have
power to grant the remedy of the nature obtainable in the
Court of King's Bench in England by means of the prerogative
writs.
1. Nature and Scope of the Habeas Corpus-The writ ofhabeas
corpus is a process by which an individual who has been
deprived of his personal liberty by any executive act, may have
the validity of such act tested before a superior Court. Habeas
Corpus is thus a bulwork of personal liberty. The writ is in the
nature of an order calling upon the person by whom a prisoner
is alleged to be kept in confinement to bring such person before
the Court to let the Court know on what grounds the prisoner
has been confined and to set him free if there is no legal
justification for the imprisonment : (State of Bihar Vs.
Kaineshawar Prasad, A.I.R. 1965 S.C. 575.577).
The Latin phase 'Habeas Corpus' means 'have the body.
However, recent development of law indicates that in the writ
of Habeas Corpus the production of the body of the person
alleged to be unlawfully detained is not essential. In Kanu
Sanyal Vs. D. M. A.I.R. 1973, Bhagwati, J. held that the
production of the body of the person alleged to be wrongfully
detained is ancillary to the main purpose of the writ in securing
the liberty of the subject illegally detained.
Object of Habeas Corpus-The principal aim of the writ of Habeas
242

Corpus is to provide a speedy and effective judicial review of


alleged unlawful restraint on liberty.
This writ has been described as "a great constitutional
privilege". "If the Court comes to the conclusion that there is no
legal justification for the imprisonment of the person
concerned, the Court will pass an order to set him at liberty
forthwith". Thus, the object of the writ of Habeas Corpus is not
to punish the detaining authority but to release a person from
illegal detention. "The question before the Court is whether the
subject is lawfully detained. If he is, the writ cannot be issued if
he is not, it must issue".
Who may Apply for Habeas Corpus?-An application for habeas
corpus can be made by any person on behalf of the prisoner as
well as by the prisoner himself. Even a letter to the judge
mentioning illegalities committed on prisoners in jail can be
admitted. Even the Courts can act suo motu in the interests of
justice on any information conveyed to it by any one.
Procedure for Applying for a Writ of Habeas Corpus -Every
application for a writ of habeas corpus has to be accompanied
by an affidavit stating the nature and circumstances of the
restraint. If the Court is satisfied that a prima facie case for
granting the prayer, has been made out, it issues a rule nisi
calling upon the opposite party to show cause on a specified
day as to why the rule nisi should not be made out absolute. On
the day so specified, the Court will consider the merits of the
case on the basis of the return showing cause for detention and
will pass an appropriate order.
243

Grounds for Issuing the Writ of Habeas Corpus-The traditional


function of the writ of habeas corpus has been to get the
release of a person wrongfully or unlawfully detained or
arrested. However, in Sunil Batra Vs. Delhi Administration, A.I.R.
1980 Krishna Iyer, J. opened new vistas for the issuance of writ
of habeas corpus. In this case a convict had written a letter to
one of the Judges of the Supreme Court alleging inhumane
torture to a fellow convict. Krishna Iyer J. treated this letter as a
petition of habeas corpus. The learned judge followed a series
of American cases employing the writ of habeas corpus for the
neglect of State penal facilities overcrowding, understaffing,
insanitary facilities, brutality, constant fear of violence, lack of
adequate medical and mental health, censorship of mail,
inhumane isolation, segregation, inadequate or non-existent
rehabilitative or educational opportunities. Thus, the Supreme
Court has widened its scope by giving reiief through the writ
against inhumane and cruel treatment meeted out to prisoners
in Jail.
The decision of the Supreme Court in Maneka Gandhi Vs. Union
of India, A.I.R. 1978, has electrified the whole concept of liberty
by holding that "procedure established by law" in Art. 21 means
"fair and reasonable" procedure. Accordingly, a writ of habeas
corpus would lie if the law which deprives a person of his liberty
is not fair and just.
Can Successive Applications for Habeas Corpus be Moved?-In
England, as has been said in Re Hasting (II) Case., a person has
no right to present successive applications for the writ of
habeas corpus. But under Indian law, it has been authoritatively
244

held by the Suprerne Court in Ghulam Sarver Vs. Union of India,


A.I.R. 1967 that the person detained can file an original
application for enforcement of his Fundamental Right to liberty
before a Court other than the High Court, that is the Supreme
Court of India. The order of the High Court in the said writ does
not operate as res-judicata or as constructive res-judicata. Thus,
this is an exception to the principle of res-judicata which applies
to other writs.
In D.M. Jabalpu r Vs. Shivakant Shukia known as Habeas Corpus
Case the matter before the Supreme Court was as to whether
despite the presidential order it was possible to the detenues to
challenge their detention on the ground that it is ultra vires the
Act, (transparently, obviously) palpably wrong, mala fide etc. In
the Habeas Corpus Case, the Supreme Court by a majority of 4 :
1 reversed the unanimous view of the High Courts by passing
the following order"In view of the Presidential order, dated June 27,1975, no
person has any locus standi to move any writ petition U/Art.
226 before a High Court for habeas corpus or any other writ or
order or direction to challenge the legality of an order of
detention on the ground that the order is not under or in
compliance with the Act or is illegal or is vitiated by mala fide
factual or legal or is based on extraneous considerations".
Criticising the majority judgment, Seervai rightly said, "The
judgment in the habeas corpus case... is the most glaring
instance in which the Supreme Court of India has suffered most
severely from a self inflicted wound". However, in State of
Punjab Vs. Sukhpal Singh, 1990, the Supreme Court held that
245

the Court can see whether the provisions of Art. 22 (5) had been
complied with by the detaining authority. It is the duty of the
Couft to see that a law depriving the person of his liberty
without the safeguards available even to a person charged with
crime is strictly complied by an anticipatory action only in the
interest of what is enumerated in the statute. "Amid the clash
of Anns, Laws are not silent. They may be changed, but they
speak the same language in war and peace. Whenever there is a
doubt between liberty and bondage, the decision must be in
favour of liberty".

Q. 25 (a). What is the nature, scope and object of the writ of


certiorari? What are the grounds on the basis of which it can
be issued? Can it be issued to call for the proceedings of an Act
or Ordinance?

Ans. Nature and Scope of the Writ of Certiorari-"Certiorari" is a


Latin word which means "to certify". Certiorari may be defined
as a judicial order issued by the Supreme Court under Art. 32 or
by a High Court under Art. 226 of the Constitution to an inferior
Court or any authority exercising judicial, quasi-judicial, or
administrative functions to transmit to the Court the records of
proceedings pending therein for scrutiny and decide the legality
and validity of the orders passed by them. If the decision is bad
246

it is declared invalid. With the expansion of the concept of


natural justice, and the requirement of fairness even in
administrative functions,the principle that certiorari can be
issued only \vhen the action is judicial or quasi-judicial is no
more tenable. Certiorari is now regarded as a general remedy
and can be issued even when the action is administrative.Thus,
in A.K. Kraipak Vs. Union of India, A.I.R. 1970, the writ of
certiorari was issued to quash the administrative action of a
Selection Board.
The writ of certiorari can now be issued to any body irrespective
of the nature of the function discharged by it. The writ can be
issued to any Constitutional, statutory or non-statutory body or
person exercising judicial, quasi-judicial and administrative
functions affecting rights. For example: A Court Martial
constituted under the Army Act has been held to be the subject
of the writ of certiorari. In this way, the constituency of
certiorari has been tremendously enlarged because it is
corrective in nature.
Grounds for Issuing of the Writ of Certiorari-A writ of certiorari
may be issued on any of the following grounds1. Error of Jurisdiction-Error of jurisdiction refers to such
situations where the authority acts without jurisdiction, in
excess of jurisdiction or fails to exercise jurisdiction vested in it
by law. These grounds are as follows (a) Lack of Jurisdiction-Where the authority has no jurisdiction
at all to take action, it isacase of lack ofjurisdiction. In Raflq
Khan Vs. State of U.P. A.I.R. 1954, S. 85 of the U.P. Panchayat
Raj Act, 1947 empowered the S.D.M. either to quash the entire
247

order of the Panchayat Adalat or to cancel its jurisdiction. The


S.D.M. has no jurisdiction to modify the order in any way.
Where the S.D.M. has modified the conviction passed by the
Panchayat Adalat by maintaining conviction of the accused in
respect of one of the offences only and quashing their
convictions in respect of other offences, the Court issued the
writ of certiorari to quash the said decision.
(b) Excess of Jurisdiction-Where the authority has jurisdiction
but it exceeds its permissible limits, it is a case of excess
ofjurisdiction. In J.K. Chaudhri Vs. R.K. Dutta, A.I.R. 1958. the
governing body of a college dismissed its Principal, but the
University concerned directed the governing body to reinstate
him. The Court issued certiorari to quash the decision on the
ground of excess of jurisdiction, because under the relevant
statute, the University could interfere with the. decision of the
governing body in the case of'teacher' but its jurisdiction did
extend to the case of "Principal" as well.
(c) Abuse of Jurisdiction-Certiorari will be issued to quash an
action where the authority has abused its jurisdiction. An
authority is said to have abused its jurisdiction when it exercises
its powers for improper purpose, or on extraneous
considerations, or in bad faith, or leaves out relevant
considerations or does not exercise the power by himself but at
the instance or discretion of another person.
2. Jurisdictional Facts-It is to be noted that factor facts upon
which an administrative agency's power to act depends is called
a 'jurisdictional fact'. If the jurisdictional facts do not exist, the
248

authority cannot act. Where the authority wrongly holds or


assumes that the state of jurisdictional facts exists, although
actually it does not exist, such assumption of jurisdiction is
liable to be quashed by the writ of certiorari, for example; in
Munni Devi Vs. Gokal Chand, 1969 under the U.P. (Temporary
Control of Rent and Eviction) Act, 1947, power is given to the
District Magistrate to allot a vacant shop. There is a provision
under the Act that the order made by the District Magistrate
shall not be called in question in any Court. The Supreme Court
held that whether a shop is vacant or not is a jurisdictional fact
which could not be decided finally by the District Magistrate
himself.
3. Error of Law Apparent on the Face of the Record-An error is
apparent on the face of record if it is self-evident and can be
ascertained merely by looking into the record without having
resort to other evidence. Error of law apparent on the face of
record cannot be overlooked by the Courts as it is an insult to
legal system. Error of law shall include clear ignorance or
disregard of law, or a wrong proposition of law, or a clear
inconsistency between the facts and the law and the decision. It
may also include cases of abuse of jurisdiction, and a decision
bases on 'no evidence. For example; in Sangram Singh Vs.
Election Tribunal, A.I.R. 1958 the question of interpretation of S.
9 C.P.C. was involved. It was construed by the Election Tribunal
to mean that if a person fails to appear before it without good
cause, he can be debarred from taking part in subsequent
proceedings.As the decision amounted to error of law apparent
on the face of record, it was quashed.
249

4. Violation of the Principles of Natural Justice-A writ of


certiorari can be issued when there is violation of the principles
of natural justice. There is a minimum standard of natural
justice which must be complied with by any one who decides
any thing. For the study of principles of natural justice.
Object of Certiorari-The object of the writ of certiorari is not
only negative in the sense that it is used to quash an action but
it contains affirmative action as well. The power of judicial
review is not restricted where glaring injustice demands
affirmative action. Thus, in Gujarat Steel Tubes Ltd. Vs. Mazdoor
Sahha A.I.R. 1980, while quashing the order of dismissal, the
Supreme Court held that it can also order reinstatement and
the payment of the basic wages.
Can Certiorari be Issued to Call for Proceedings of Act? No. In
Prabodh Verma Vs. State of U.P. A.I.R. 1985, the Supreme Court
has held that a writ of certiorari can never be issued to call for
the record or paper and proceedings of an Act or Ordinance.
Q. 25 (b). Explain the meaning, nature and scope of the writ of
Prohibition. Also state the grounds on the basis of which it can
be issued?

Ans. Meaning, Nature and Scope of the Writ of Prohibition-A


writ of prohibition is a judicial order. It can be issued to a
judicial or quasi-judicial authority, when such authority exceeds
its jurisdiction or tries to excercise jurisdiction not vested in it.
The writ of prohibition is designed to prevent the excess of
250

power by public authorites. Formerly, this writ was issued only


to judicial and quasi-judicial bodies. For example; in
Brijkhandelwal Vs. Union of India, A.I.R. 1975, the Delhi High
Court did not issue prohibition to the Central Government to
prevent it from entering into an agreement with Sri Lanka
regarding boundary dispute. Thus, this decision follows the
principle that prohibition does not lie against government
exercising executive functions and that prohibition can be
issued to control quasi-judicial and not executive functions.
The above requirement is no longer valid now. With the
expanding dimensions of natural justice, and requirement of
fairness in administrative functions, the rigidity about
prohibition has been liberalised. This writ can be issued to
anybody, irrespective of the nature of function exercised by
him, if any of the grounds on which the writ of certiorari is
issued is present. The writ of prohibition is now regarded as a
general remedy for the Court to control judicial, quasi-judicial
and administrative decisions affecting rights. Thus, prohibition
has been issued to a local council preventing it from licensing
indecent films, or preventing it from discharging its
administrative functions unfairly.
The writ of prohibition can now lie against any body irrespective
of the nature of function exercised by him. The writ can be
issued to any Constitutional, statutory or non-statutory body or
person exercising judicial, quasi-judicial and administrative
actions affecting rights. A Court-martial constituted under the
Army Act has been held to be subject to the writ of prohibition.
In this way, the constituency of prohibition has been
251

tremendously expanded because it is preventive in nature.


Grounds of Issuing the Writ of Prohibition-The writ of Certiorari
and Prohibition can both be issued on the following grounds1. Absence or Excess of Jurisdiction-ln a case where there is
absence or total lack ofjurisdiction, the writ of prohibition
would lie against a judicial or quasi-judicial authority prohibiting
it from exercising jurisdiction not vested in it. Thus, prohibition
was issued in a case of levy of licence fee without authority of
law. Similarly, if a taxing authority seeks to impose tax on a
commodity exempted from tax under the Act, a writ of
prohibition may lie.
2. Violation of the Principles of Natural Justice-A writ of
prohibition will also be issued where there is violation of the
principles of natural justice. As a matter Of fact, if the principles
of natural justice have not been followed, that is, if there is bias
or prejudice on the part of the Judge or no notice is issued or
hearing given to the person against whom the action is
proposed to be taken, there is no jurisdiction vested in the
judicial or quasi-judicial authority to proceed to act.
3. Unconstitutionality of Statute-A writ of prohibition will lie if
a judicial or quasi-judicial authority proceeds to act under a law
which is ultra vires or unconstitutional. Accordingly, if the
proceedings are pending in a court or tribunal under a statute
which is ultra vires of any Articles of the Constitution, or is
beyond the law-making power of the legislature.
4. Infraction of Fundamental Rights-Prohibition can also lie
where Fundamental Rights are violated. Thus, in a case where
252

an order was made transferring income-tax assessment


proceedings to another officer, prohibition was issued against
the said proceedings because the order by which the
proceedings were transferred was arbitrary and violative of
Article 14 of the Constitution of India.

Q. 25 (c). Explain the meaning, nature, scope and object of the


writ of Mandamus. What are the conditions and grounds on
which it can be issued? Who may apply for it? Against whom
mandamus will not apply? What remedies are provided by it?

Ans. Meaning of the Writ of Mandamus-Mandamus is a


command which is issued by a Court to an authority asking it to
perform a public duty imposed upon it by the Constitution or
any other law.
According to Markose, Mandamus is a judicial remedy which is
in the form of an order from a superior Court (the Supreme
Court or a High Court) to any Government, Court, Corporation
or Public Authority to do or forbear from doing some specific
act which that .body is obliged under law to do or refrain from
doing, as the case may be, and which is in the nature of a pubilc
duty and in certain cases of a statutory duty.
Nature and Scope of Mandamus-Mandamus demands some
kind of activity on the part of the body or person to whom it is
addressed. Thus, when a body omits to decide a matter which it
is bound to decide, it can be commanded to decide the same.
Where the government denies to itself a jurisdiction which it
253

has under the law, or where an authority vested with a power


improperly refuses to exercise it, mandamus can be issued.
Object of Mandamus-The object of mandamus is to keep the
public authorities within the ambit of their jurisdiction while
exercising public function. Mandamus can be issued to any
authority in respect of any kind of function, e.g., administrative,
legislative, quasi-judicial and judicial. In acase where the
teleophone of the applicant was wrongfully disconnected
although he had paid dues regularly, the High Court issued
direction to the telephone authorities to restore the connection
within a week. (Birendra Kumar Vs. Union of India, A.I.R. 1983
Mad. 365).
Conditions or Grounds for Issuing of Mandamus-A writ of
mandamus can be issued on the following grounds1. Legal Right-No one can claim a writ of mandamus unless he
has a legal right. There must be a legally protected right before
one suffering a legal grievance can claim a mandamus. Thus,
when the petitioner contended that his juniors had been
promoted whereas he had been left out, his petition was
dismissed because he was not qualified for the post.
Similarly, in S.P.Manocha Vs. State of M.P., A.I.R. 1975 the Court
did not issue mandamus to the college to admit the petitoner
because he failed to establish a right to admission in the
college.
However, a person can claim mandamus for the enforcement of
a public right which does not specifically belong to any
individual. Mandamus can be issued on the petition of a tax
254

payer to restrain a municipality from misapplication of public


funds. In Guru Swamy Vs. State of Mysore, A.I.R. 1954, the
Court ruled that in the case of lack of power and abuse of
power by the administrative authority, any person who is
affected by the action, though he may not have an enforceable
right, can claim mandamus.
2. Public Interest-Now-a-days under the impact of public
interest litigation, the standing rule has been very much
liberalised and the emphasis has shifted from vindication of
"individual right" to "public interest". The principle has come to
be that public authorities should be made "to perform their
duties, as a matter of public interest at the instance of any
person genuinely interested; subject always to the discretion of
the Court.
3. Imperative Duty-Mandamus is used to enforce a'duty, the
performance of which is imperative and not optional or
discretionary with the public authority. Thus, where there was a
duty cast upon the Deputy Commissioner to pay the money due
to the applicant as a pension, the Court held that it was open to
the applicant to enforce the duty by means of a writ of
mandamus. Similarly, it has been held that mandamus can be
issued to compel the Commissioner of Income-tax to take
action for the payment of amounts which have been certified as
overpaid.
But the writ of mandamus will not be issued where the duty is
of discretionary nature. In Manjula Manjari Vs. Director of
Public Instruction, A.I.R. 1952, the publisher of a book applied
255

for issue of Mandamus to compel llii1 Director of Public


Instruction to include her book in the list of books approved for
schools. The writ of mandamus was not issued because the
choice of text-books was a matter of discretion of the Director
of Public Instruction and he was not under the duty to the
applicant to include the book in the approved list.
4. Public Duty -Mandamus is employed to enforce the
performance of public duties by public authorities. A duty will
be of a public nature, if it is created by the provisions of the
Constitution or of a statute, or some rule of common law. Thus,
mandamus is issued to a municipality to discharge its public
duty, e.g., to provide for drains and sewers. (Ram Pal Vs. State
of Rajasthan A.I.R. 1981 Raj. 121.)
5. Private Duty-Generally, a mandamus would lie only to
enforce a duty which is public in nature. Therefore, a
mandamus was not issued to enforce a duty private in nature
and arising out of contract. But in Gujrat State Financial
Corporation Vs. Lotus Hotel, A.I.R. 1983, the Supreme Court
issued writ of mandamus to a government instrumentality for
specific performance of a contract to advance money.- In this
case Lotus Hotel had entered into a contract with the Gujarat
State Financial Corporation for the loan of Rs. 30 lakhs for the
construction of a Hotel. Though the loan had already been
sanctioned, yet later on it was refused to be paid.
Grounds of Issuing the Writ of Mandamus-Mandamus can be
issued on the following grounds1. Error of Jurisdiction i.e.;
256

(a) Lack of Jurisdiction;


(b) Excess of Jurisdiction;and
(c) Abuse of Jurisdiction.
2. Jurisdictional facts.
3. Violation of the principles of natural justice.
4. Error of law apparent on the face of record.
Note : For Detail PI. See Ans. of the Grounds of Certiorari and
Prohibition Q. 25 (a) P. 103 & 25 (b) P. 105.
Who may Apply for Mandamus?-The general rule is that a
person whose right has been infringed may apply for the writ of
mandamus. Thus, in a case of incorporated company, the
petition is required to be filed by the company itself and not by
the shareholder. Where an individual applied for the
enforcement of any right of an institution, he must disclose the
facts to relate what entitled him to make an application on
behalf of the said institution. Such right must be subsisting on
the date of filing the petition.
Against whom Mandamus will Not Lie?-A writ of mandamus
will not be issued against the President or the Governor of a
State, for the exercise of power and performance of duties. It
will not lie against the State legislature to prevent from enacting
a law alleged to be violative of the Constitutional provisions. It
will also not lie against an inferioror ministerial officer who is
bound to obey the orders of his superiors.
Remedies Provided by Mandamus-The various aspects of
mandamus show that mandamus has come to stay as the
leading, certiorarified, residuary and all-pervading remedy in
257

administrative law in India. Judicial review is best served by it


than even by certiorari and prohibition. It combines aspects of
certiorari and prohibition and where the latter are not feasible,
mandamus walks in and yield better results than either of them.
While certiorari can only quash the order, mandamus goes a
step ahead and directs as to what has to be done further. Thus,
Mandamus is essential for the purpose of judicial review in
administrative law.

Q. 25 (d). Explain the meaning, nature, scope and object of the


Quo-warranto. What are the conditions of its issuing? Who
may apply for? When can it be refused?

Ans.
Meaning, Nature and Scope of Quo-warrantoQuo-warranto means 'what is your authority'? The writ of quowarranto is a judicial order against an occupier or usurper of an
independent substantive public office or franchise or liberty to
show 'by what authority' he is in such office, franchise or
liberty? If the answer of the usurper is not to the satisfaction of
the Court, the writ of quo-warranto can be issued to oust him.
The writ of quo-warranto is a mode of judicial control in the
sense that the proceedings review the actions of the
administrative authority which appointed the person. The writ
is issued to the person ousting him from holding a public post to
which he has no right.
258

Object of Quo-warranto-The writ of quo-warranto is used to try


the civil right to a public post. Accordingly, the use of the writ is
made in cases of usurpation of a public office and removal of
such usurper. Conversely, it protects citizen from being
deprived of public office to which he may have a right.
Conditions for Issuing of Quo-warranto-A writ of quo-warranto
will be issued in respect of an office only if the following
conditions are satisfied1. Public Office-A citizen can claim a writ of quo-warranto if he
satisfies the Court that the office in question is a public office.
The test of public office is whether the duties of the officer are
public in nature in which public are interested. Thus, in Anand
Bihari Vs. Ram Sahay, A.I.R. 1952, it was held that the office of
Speaker of Legislative Assembly is a public office. Again, in G.D.
Karkare Vs. Shevade, it was held that the Office of Advocate
General is public office. Similarly, the office of the members of
Municipal Board, Prime Minister, University official, Member of
a Legislature, Vice-Chancellor of a University, Minister are public
offices.
The office must have been created by statute or by the
constitution itself. Thus, the writ of quo-warranto will not lie
against the Managing Committee, not created by any statute or
against the member of Working Committee of Arya Samaj
Pratinidhi Sabha, because they are private offices not created
by Law.
2.

Public Office to be Substantive in Nature-A substantive


259

office is an office independent in title. The writ lies in respect of


a public office of substantive character. The holder of such
office must be an independent official and not merely a deputy
or servant of others.
3. Holder to be in Occupation of Office-The writ of quowarranto cannot be issued, unless the person is in actual
possession of office and asserted his right to claim it. Mere fact
that a person is elected to an office or appointed to a particular
post is not sufficient for the issue of the writ of quo-warranto
unless such person accepts such office.
4. Who may Apply for Quo-warranto?-As the object of the
writ of quo-warranto is to prevent a person who has wrongfully
usurped an office from continuing in that office is maintainable
at the instance of any private person even though he is not
personally aggrieved or interested in the matter.
When can Quo-warranto be Refused?-The issue of writ in the
nature of quo-warranto is a matter of discretion of the Court.
No petitioner can claim this writ as of right. Accordingly, the
Court may refuse to issue it when it is vexatious, or would be
futile or when there is adequate alternative remedy.

260

Q. 26 (a). What do you mean by "Public Interest Litigation"


(PIL)? Is it an exception to the "Locus Standi"? What is the
object of Public Interest Litigation? On what grounds the court
would allow litigation in public interest? Give some illustrative
cases where the court allowed P.I.L.

Ans. Meaning of the Public Interest Litigation-The "Public


interest litigation" may be defined as under1. According to Supreme Court in Janta Dal Vs. H.S.
Chaudhary, A.I.R. 1993 S.C. 892, "Public interest litigation
means a legal action initiated in a Court of law for the
enforcement of public interest or general interest in which the
public or a class of the community have pecuniary interest or
some interest by which their legal rights or liabilities are
affected".
2. According to Supreme Court in Sheela Barse Vs. Union of
India A.I.R. 1988, S.C. 2211, "The proceeding in a Public Interest
Litigation are intended to vindicate and effectuate the public
interest by prevention of violation of the rights, constitutional
or statutory or sizeable segments of the society while owing to
poverty, ignorance, social and economically disadvantaged
cannot themselves assert and quite often not even aware of
those rights".
3. According to Peter Pen, "Public Interest litigation supports
the most essential interest and ascertains representative
interest in administrative procedure and public representation
261

in the Government".
Thus, it can be concluded from the analysis of the above
definitions that P.I.L., advocacy for public interest, and free legal
aid to poor, all are for the protection of poor, illiterate and
weaker sections of the society.
It is to be noted that the term "Public Interest Litigation"
occupies an important place in U.S.A. and U.K. In India also its
seeds were sown in 1976. The term "Public Interest Litigation"
was used by Justice Krishna Iyer and Justice P.N. Bhagwati in
S.P. Gupta Vs. Union of India, A.I.R. 1982 S.C. 149. The Supreme
Court has made it clear that where a legal wrong or legal injury
is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or
legal provision or without the authority of law or any such legal
wrong or legal injury or illegal burden is threatened and such
person or determinate class of persons is by reason of poverty,
helplessness or disability or socially or economically
disadvantaged position unable to approach the Court for relief,
any member of the public can maintain an application for an
appropriate direction, order or writ in the High Court U/Art. 226
and in the case of breach of any fundamental right of such
person or determinate class of persons in the Supreme Court
U/Art. 32 seeking judicial redress for the legal wrong or legal
injury caused to such person or determinate class of persons.
Is Public Interest Litigation an Exception to the Locus Standi?Yes. Ordinarily, only the person whose fundamental or other
rights have been violated is entitled to file a petition U/Art. 32
262

or 226 for the enforcement thereof. This is known as "Locus


Standi". But the Public interest is an exception to this general
rule. Now-a-days the Court entertains the Public Interest
Litigation at the instance of public spirited citizen acting bona
fide for the enforcement of fundametal right of a person in the
custody or of a class or group of persons who by reason of
poverty or disability or socially or economically disadvantaged
position find it difficult to approach the Court for sedress.
Object of Public Interest Litigation-The modern technique of
Public Interest Litigation aims at to provide an effective remedy
to enforce public rights and interests. In order that the public
causes are-brought before the Courts, the procedural
techniques judicially innovated specially for the public interest
action recognises the concomitant need to lower the 'Locus
Standi' thresholds so as to enable public minded citizens of
social action groups to act as conduits between these classes of
persons inherence (sic) and the forum for the assertion and
enforcement of their rights.
Grounds on the Basis of which P.I.L. is Allowed by the Court In
Lawyer's Initiative through R.S. Bains and Others Vs. Stateof
Punjab through its Chief Secretary and Others, A.I.R. 1996 P. &
H.I., the Punjab and I laryana. High Court has made it clear that
the Court would allow litigation in Public Interest if it is found
that1. The impugned action is violative of any of the Fundamental
rights enshrined in Part IH of the Constitution of India and relief
is sought for its enforcement;
263

2. The action complained of is palpably illegal or mala fide and


affects the group of persons who are not in a position to protect
their own interest on account of poverty, incapacity or
ignorance;'
3. The persons or a group of persons were approaching the
court in public interest for redressal of public inquiry arising
from the breach of public duty or from violation of some
provision of the constitutional law;
4. Such persons or group of persons is not a busy body of
meddlesome inter-loper and have not approached with mala
fide intention of vindicating their personal vengeance or
grievances;
5. The process of'Public Interest Litigation' was not being
abused by politicians or other busy bodies for political or
unrelated objective. Every default on the part of the State or
Public Authority being not justiciable in such litigation;
6. The litigation initiated in public interest was such that if not
remedied or prevented would weaken the faith of the common
man in the institution of the judiciary and the democratic set up
of the country;
7. The state action was being tried to be covered under carpet
and intended to be thrown out on technicalities;
8.

The information laid before the court was of such a nature


264

which required examination;


9. The person approaching the court has come with clean
hands, clean heart and clean objectives;
10. Before taking any action in public interest the court must
be satisfied that its forum was not being misused by any
unscrupulous litigant, politicians, busy body or persons or
groups with mala fide objective of either for vindication of their
personal grievance or by resorting to black-mailing or
consideration extraneous to public interest.
Illustrative Cases wherein Court Allowed P.I.L.-The following
are the notable cases wherein court allowed P.I.L.1. In Hussainara Khatoon Vs. Home Secretary, State of Bihar,
A.I.R. 1979 S.C. 1360, Habeas Corpus petition was moved on the
basis of the news report. The Court allowed the petition and
ordered the release of all the under-trial prisoners named in the
news report.
2. In M.C. Mehta Vs. Union of India, AI.R. 1987, S.C. 1086, the
gas leak from the plant of Shriram Foods and Fertilizer
Industries caused injuries to several persons. A writ petition was
filed claiming damages and the damages were alllowed. The
Court made it clear that the liability of theIndustry is absolute. It
is shown that gas leaked from the unit, the owner of the unit
shall be liable to pay compensation. The Court further held that
the compensation should be proportionate to the financial
capacity of the erring Company.
265

3. In M.C. Mehta Vs. Union of India, A.I.R. 1988, S.C. 2217, the
Court issued direction for the enforcement of the statutory
provisions relating to the prevention of nuisance caused by the
pollution of the river Ganga. The Court directed the Nagar
Mahapalika, Kanpur to comply with the statutory obligations
under the Water (Prevention and Control of Pollution) Act,
1974.
4. In M.C. Mehta Vs. Union of India, A.I.R. 1992, S.C. 382, the
Court directed the Government to spread information relating
to environment through audio visual media. It also directed the
Government to introduce environment as a compulsory subject
in schools and colleges.

26. (b). What are the abuses or demerits of Public Interest


Litigation? How the defects of P.l.L. may be removed?
Ans. Abuse or Demerits of P.I.L.-As a matter of fact, 'Public
Interest Litigation' means a legal action initiated in a Court
oClaw for the enforcement of the public interest or general
interest in which public has pecuniary interest because it Will
Effect their legal right or liabilities. As a general rule, person
whose fundamental or other rights have been violated may file
petition U/Art. 32 or 226, as the case may be , this rule is called
Locus Standi Rule. P.l.L. is an exception to this general rule.
Now-a-days Court entertains P.l.L. at the instance of public
spirited citizen acting bonafide for the enforcement of
266

Fundamental rights of a person in the custody or of persons


who by reason of poverty or disability or socially or
economically disadvantaged position find it difficult to approach
the court for redress so that the Fundamental rights may
become meaningful not only for the rich who have the means to
approach the court but also for the large masses of the poor
people, who have no such means.
In fact, P.l.L. is a modern technique to do justice with poor
people yet it may be noted that it has been much criticised
becaus of the danger of its being misused on the following
grounds1. Suo Motu Action by Judges-It is said that suo motu action
taken by judges is not justified. It is seen that in some cases the
affected parties addressed letters directly in the name of the
Judges of the Supreme Court and they used to convert the
letters into the writ petitions. This practice has been criticised
on the ground that there would be a danger of litigations
choosing a Judges and in turn Judges choosing their litigants. To
avoid this defect now the practice developed by the Court is
that the Judge passes on the letter to the Registrar for being
dealt with according to the normal practice of the court. The
suo motu action by Judges based upon the newspapers has
been criticised on the ground that hereby the Judge assumes
the rote, of the Advocate as well and thus, acting against the
Judicial precept, no body should be a Judge in his own case
(Nemo judex in causa sua).
2.

Private Motive or Political Ends-PI.L. may be used to serve


267

the private motive or political ends of the litigants. To avoid this


defect the Court has expressed the view that the person who
moves the Court for judicial redress must be acting bona tide
with a view to vindicating the causes of justice and if he is acting
for personal gain or private profit or out of political motivation
or other oblique consideration, the Court should not allow itself
to be activised at the instance of such person and must reject it
absolutely.
It is to be noted further that to avoid the danger of persons
dressing up their personal grievance in public interest grab, the
Court has adopted the view that it is not meant for correcting
individual wrong or injury. The view of the Court has been that
as far as possible it should not entertain cases of individual
wrong or injury at the instance of a third party.
3. Excessive Increase in Litigation-Public Interest Litigation has
also been criticised on the ground that it would result in the
tremendous increase in the litigation.
4. Uncertainty as to the Admission of Petitions-P.i.L. has been
criticised on the ground that it would develop uncertainty as to
the admission of the petition for hearing. It is said that there is
no guideline as to the cases which should be admitted and the
cases which should not be admitted.Due to this the Public
Interest Litigation has become unpredictable. To avoid this
defect the Supreme Court has framed certain guidelines for
entertaining letters/ petitions as Public Interest Litigation.
Guidelines Framed by Supreme Court to Avoid the Defects of
268

P.I.L.-The petiton involving personal matter shall not be


entertained as a P.I.L. matter. According to Supreme Court, only
the matters of the following Categories should be entertained
as P.I.L.1. Neglected children;
2. Bonded labour matters;
3. Non-payment of minimum wages to workers and
exploitation of casual workers and also complaints relating to
the violation of Labour Laws, (except in individual cases);
4. Petition from prisons,complaining of harassment or for
premature release, death in prison, transfer, release on
personal bond, speedy trial:
5. Petitions against atrocities on women, bride-burning, rape,
murder etc;
6. Petitons against police for refusing to register a case and
also for harassment by police and death in police custody;
7. Petitions complaining harassment or torture of villagers by
co-villagers or by police from persons belonging to the
Scheduled Castes and Scheduled Tribes and economically
backward classes;
8. Petition pertaining to the environmental pollution,
distrubances of ecological balance, maintenance of forest and
wild life, maintenace of heritage and culture and other matters
of public importance;
It is to be noted that Petitions for early hearing of cases pending
in courts, petitions relating to service matters, pension and
gratuity, petitions pertaining to the landlord-tenant matters and
petitions relating to the admission to the Medical and other
269

Educational Institutions will not be entertained as Public


Interest Litigation.
The above mentioned guidelines will definittely introduce
certainty in this respect and most of the defects of the P.l.L. will
be removed.
It appears that now-a-days the courts have been cautious to act
on news report. They usually insist on affidavit of the writer or
the person having knowledge of the details of the complaint.
Now it is important to specify the fundamental rights which
have been violated in case the petition has been presented
U/Art. 32 and the fundametnal right or other legal right which
has been violated in case the petition has been presented
U/Art. 226. Thus, the judiciary appears to be careful to see that
it is not misused. The aforesaid rules relating to the Public
Interest Litigation applies equally in relation to Art. 226 as well.

Q. 27 (a). Explain fully the contractual liability of the


Government?

Ans. Contractual Liability of the Government-Art. 299(1)


provides that the Government can enter into contract in the
name of President, the Executive head, in case of Union and
Governor in the case of State Governments. This Article says,
"All contracts made in the exercise of the executive power of
270

the Union or of a State shall be expressed to be made by the


President or by the Governor of the State, as the case may be
and all such contracts and all assurances of property made in
the exercise of the power shall be executed on behalf of the
President or the Governor by such persons and in such manner
as he may direct or authorize".
Thus, the act of making a contract is an exercise of the
executive power. It is exercisable in accordance with the
provisions of the Constitution. By the use of word 'executed" in
the Article, it becomes clear that the contract should be in
writing and any person aggrieved by the non-performance of
such contract may sue the Government for damages.
The sueability of the Government has been clearly established
U/Art. 300 of the Constitution, which provides"The Government of India may sue or be sued by the name of
the Union of India and the Government of a State may sue or be
sued by the name of the State and may, subject to any
provisions which may be made by the Act of Parliament or of
the Legislature of such State enacted by virtue of the power
conferred by this Legislature of such State enacted by virtue of
the power conferred by this Constitution, sue or be sued in
relation to their respective affairs in the like cases as the
Dominion of India.....might have sued or been sued if this
Constitution has not been enacted. Thus, the contractual
liability seems to flow from this Article. It is now, fully
recognized in India that Art. 299(1) read with Art. 300 makes
the position quite clear".
271

Scope of the Liability-Regarding the extent of liability, Art. 300


provides that the Government of India and the Government of
States may sue or be sued in relation to their respective affairs
in the like cases as the Dominion of India and corresponding
Provinces of Indian States might have sued or been sued, if the
Constitution had not been enacted. The Constitution does not
directly states the extent of liability. It only declares that the
liability of the Union and the State is the same as that of
Dominion and the Provinces of India before the present
Constitution came into force.
In Bihar E.G.F. Co-operative Society Vs. Sipahi Singh, A.I.R. 1977
S.C. 2149, the Supreme court reiterated that the provisions of
the Art. 299, which are mandatory in character, require that a
contract made in the exercise of the executive power of the
Union of a State must satisfy three conditions(i) The Contract must be executed by a person authorised by
the President or Governor, as the case may be.
(ii) The Contract must be executed by such person on behalf of
ths President or Governor, as the case may be.
(iii) The contract must be expressed !o be made by tiw
President or Governor, as the case may be.
The Provisions of Art. 299 are mandator)' and their noncompliance would render a contract void. (Bhikaji Vs. Union of
India, A.I.R. 1962, S.C. 11). It follows that no suit against the
Government, Union or State can be brought if the requirement
laid down in this Article are not complied w>th. Equally the
contract will not be enforceable by the Government Vide:
272

Pberuma! Vs. Union of India, A.I R. I955,S.C468.


In Moolchand Vs. State of M.P., A.I.R. 1968, S.C. 1218, the
question arose whether the Government could be sued on
informal contract where it has accepted the responsibility by
ratification. The Court decided that there cannot be ratification
or estoppel by or against Government in case the contract has
not been executed in accordance with Art. 299 (1). But the
Court will not allow the government to harvest the benefits of
not properly executed contract for all the time to come (Rawat
Hardeo Singh Vs. State, A.I.R. 1981, Raj. 281).
S. 176 of the Government of India Act, 1935 laid down that the
Provincial government may sue or be sued in relation to their
respective affairs in the like cases as the Secretary of State for
India-in-Council may have sued or been sued, if the
Government of India Act, 1935, has not been passed.
Now, in order to ascertain the liability and its extent we have to
go back to the liability of Government of India according to the
Act of 1858 and 1915. East India Company was made a trustee
of Crown in respect of all the property which it possessed in
India, and all the debts and liabilities of the Company were
charged upon the revenue of India. When the Indian territories
were transferred to the Crown, the Act of 1858 was passed. S.
65 of which provided that Secretary of State for India-in-Counci!
should and might sue and be sued as a body corporate; that all
persons might have and take the same remedies and
proceedings, legal and equitable, against the Secretary of State
for India-in-Council as they could have done against the East
273

India Company. Thus,Secretary of State for India-in-Counci!


became sueable in the same way as the Company, was for the
contractual and tortious liability. When we come to the
Government of India Act, 1935, we find that the Dominion of
India and the Governor's Provinces were constituted legal
entities as it were for India-in-Council was under the earlier
legislation. After the enforcement of the Constitution the extent
of liability can be said to be of the same degree as it has been
under the Dominion of India and Secretary of State for India-inCouncil.
In State of Assam Vs. Keshav Prasad Singh, A.I.R. 1953, the state
of Assam sold out the right of fishery for certain period in
auction sale and later under the rules framed under the Assam
Land and Revenue Regulation, 1886, tried to lift it out by recall
in its previous order. It was held by the Court that once a
binding agreement has been concluded one of the party to it
cannot refuse it at will. Again, in State of Bihar Vs. Sonabati,
A.I.R. 1954 Pat. 513, it was observed that there seems to be no
immunity from the consequences flowing under a contract and
proceedings for its enforcement. In the Bombay Reorganization
Act of 1960 it is clearly laid down that all contracts, entered into
by the State of Bombay and exclusively for the purposes of the
State of Gujarat after 1 st May, 1960, shall bind the new State.
All the other contracts are binding on the State of Maharashtra.

27. (b). Discuss the tortious liability of the Government for


torts committed by its servants during the course of their
employment.
274

Ans. Tortious Liability of Government-The concept of Tortious


liability of state refers to a situation when the state can be held
vicariously liable for the wrongs committed by its servants. Art.
300 of the Indian Constitution, declares that the Government of
India or a State may be sued for the tortious acts of its servants
in the same manner as the Dominion of India and corresponding
provinces could have been sued or have been sued before the
commencement of the present Constitution. This rule is
however, subject to any such law made by the Parliament or the
State Legislature.
The liability of the Centre or a State is thus co-terminus with
that of the Dominion of India or a Province before the
Constitution. An action in tort is thus maintainable in the same
way-as it was available before the commencement of the
Constitution. The extent and scope of the liability is the same as
it was in relation to the Dominion of India, or its predecessor
the Governor-General-in-Council, the Secretary of the State for
India-in-council, and ultimately the East India Company. The
Union Government in the Centre and the respective State
Governments will be liable for tortious acts of servants done in
the course of their employment.
Nature of the Tortious Liability-The nature of tortious liability
will be like that as it has been prior to the enforcement of the
Constitution. But actually what was the extent of liability of the
Government could not be clearly established. The first
important case involving the tortious liability of the Secretary of
State for India-in-Council was raised in Peninsular and Oriental
Steam Navigation Co. Vs. Secretary of State for India-in-Council,
275

5 Bom. HCR P.l. In this case an injury was caused to the horses
of the Peninsular and Oriental Steam Navigation Company by
the negligence of certain number of coolies under the
employment of the authorities of Kidderpore Dock-Yards in
Calcutta. The coolies negligently droped an iron piece on the
road running by the side of dock-yards. By the noise of the fall
of iron the horses of carriage, owned by the Company, were
frightened and one of the horses fell on the iron and was thus
injured. The plaintiff company brought an action for negligence
claiming damages against Secretary of State for India-in-Council
because all the employees of the dock-yard were servants of
the Crown (through Secretary of State for India-in-Council). The
defendant that is Secretary of State claimed immunity of the
Crown and contended that the suit was not maintainable.
The question to be decided was referred to Supreme Court in
the form "whether the Secretary of State for India is liable for
the damages occasioned by the negligence of the servants in
the service of the Government, assuming then to have been
guilty of such negligence as would have rendered an ordinary
employer liable".
The Supreme Court through C.J. Peacock deliverd a very learned
judgement and answered the question in the affirmative. The
Court pointed out the principles of law that the Secretary of
State for India-in-Council is liable for the damages occasioned
by the negligence of Government servants if the negligence is
such as would render an ordinary employer liable. According to
the principle laid down in this case, the Secretary of State can
be liable only for acts of non-sovereign nature; liability will not
276

accrue for sovereign acts. Sir Barnes Peacock said, "There is a


great and clear distinction between acts in the exercise of what
are usually termed sovereign powers and acts done in the
conduct undertakings which might be carried on by private
individuals; without having such power delegated to them".
The distinction drawn by the judge between sovereign and nonsovereign acts has created a lot of confusion as to what would
constitute sovereign and non-sovereign acts. There are
decisions where following Steam Navigation Company Case,
Courts have held the Secretary liable and in many other cases
Secretary has been held to be not liable on the ground of
sovereign's immunity from sueability.
In subsequent cases, the State was held not liable for torts
arising out of (i) Commandeering goods during war : Kessoram
Poddar Vs. Secretary of State for India, 54 Cal. 969 (ii) Making or
repairing military roads, Secretary of State Vs. Cockcraft, 39
Mad. 351, (iii)Administration of Justice Mata Prasad Vs.
Secretary of State 5 Luck, 157, (iv) Improper arrest, negligence
or trespass by police officer Kedar Vs. Secretary of State, 5 Rang.
375 (v) Wrongful refusal to issue a licence to sell ganja: Nabin
Chander Dey Vs. Secretary of State 1 Cal. 11, (vi) Negligence of
officers of court of wards in the administration of estate in their
charge : Secretary of State Vs. Shree Govinda 36 CWN 606, (vii)
Negligence of officers in the discharge of statutory duties :
Secretary of State Vs. Ram, 37 CWN 957, (viii) Loss of movable
property in the custody of Government Ram Gulam Vs. U.P.,
A.I.R. 1950 All. 206.
But the judgement of Steam Navigation Case was differently
277

interpreted in Secretary of State for India-in-Council Vs. Hari


Bhanji 5, Mad. 273. In this case it was held that if the claims do
not arise out of acts of State they could be entertained by the
Civil Courts. Bombay High Court followed this dictum in P.V. Rao
Vs. Khusaldas, A.I.R. 1946 Bom. 13.
In Satyawati Vs. Union of India, A.I.R. 1967 Del. 98, no sovereign
function was held to be discharged by the Government when a
military vehicle was used for carrying hockey and basketball
teams to an Indian Air Force Station to play matches against the
Indian Air Force. In Union of India Vs. Sugrabai, A.I.R. 1960
Bombay 13, transportation of records, sound ranging machine
and other equipment from the military workshop to the school
of artillary through a military truck was not regarded as an
exercise of the sovereign power.
To make the position distinct and clear a Bill entitled the
Government (Liability in Tort) Bill, drafted, was introduced in
the years 1965 and then in 1969, but the bill has not been
enacted into law so far.
The trend of judicial decision in the past has taken an entirely
deviated path-now courts have started narrowing the
dichotomy of sovereign and non-sovereign functions. India
being a welfare state should look after the interest of the
citizens, therefore, whenever any excess or negligence on the
part of the administration results into negation of ;uiy ri^hi spci
i.illy fundamental right compensation is payable and the |>l<
I .ovi-n-ii'ii and non-sovereign function will not be tenable
Uudiil MmIi \ sinir of Itiliar,
278

A.I.R. 1983, S.C. 1036 and Puspendra Kaur Vs. Corporal Sharma,
A.I.R. 1985 Pand H 81.
In State of Rajasthan Vs. Vidhyawati, A.I.R. 1962, S.C. 933, the
Supreme Court held the State vicariously liable for the torts
committed by its servants. The facts in this case were that in
February 1952, the driver of a Government Jeep while driving
back from the workshop knocked down a person on footpath.
This caused his death. A suit by widow of the deceased and her
minor daughter for compensation against the government was
filed. The Supreme Court decided in favour of the widow of the
deceased without making any distincion between sovereign and
non-sovereign functions of the government. It was established
that henceforth this Government would be liable for the torts
committed by its servants in all cases except acts of state.
However, this development of law in this area suffered a
setback in Kasturi Lai Vs. Stateof U.P. A.I.R. 1965, S.C. 1039.
Inthis case the plaintiff was going to Meerut to sell gold, silver
and other goods. As he was passsing through the city he was
taken into custody by police. His goid and silver was also kept
under police custody when he was released, his silver was
returned to him but goid was lost from police malkhana. He
filed suit for the recovery of the gold and claimed damages. But
the Supreme Court held that the state was not liable because
the gold was lost as a result of sovereign act of the police.
Conclusion-It can, however, be concluded that in a socialist
Republic, even if govermental functions can be classified into
Sovereign and Non-sovereign functions, the principle is
279

unsatisfactory. Law Commission of India is also of the view that


there is no justification of such distinction. %
Q.28. What do you mean by Ombudsmaiflf'Explaiii its
importance, origin, development, power, functions and
working in New Zealand, England and Australia. Or What
efforts are being made by the Government of India through
different Bills for the establishment of' Lok Pal' on the lines of
Ombusdsman of other countries. Or
Trace the history, powers, functions and working procedure of
Lokpai as proposed to be established under the Lok Pal Bill,
5998. Or What are the Constitutional hurdles in adopting
the institution of Lok Pal in India?

Ans. Meaning of Ombudsman-Ombudsman means "the


grievance man" or "a Commissioner of Administration".
1. According to Garner, "Ombudsman means an officer of
Parliament, having as his primary function, the duty of acting as
an agent for Parliament, for the purpose of safeguarding
citizens against the abuse oi misuse of administrative power by
executive".
2. According to Prof. S.K. Agarwal, the term 'Ombudsman'
refefs Administrative Law I oj only to institutions which have
three basic and unique characteristics:
(a) Ombudsman is an independent and non-partisan officer of
the legislature who supervises the administration.
(b) He deals with specific complaint from the public against
280

administrative injustice and mal-administration.


(c) He has the power to investigate, criticize and report back to
the legislature but not to reverse administrative action.
Importance of Ombudsman-Regarding the importance of the
Ombudsman, it is stated in Justice Report, "He is not a super
administration to whom an individual can appeal when he is
satisfied with the discretionary decision of a public official in the
hope that he may obtain a more favourable decision.His
primary function....is to investigate allegations of mal
administration".
Ombudsman inquires and investigates all complaints made by
citizens against the abuse of discretionary power, maladministration or administrative inefficiency and takes
appropriate actions. For that prupose, very wide powers are
given to him. He has access to departmental files. The
complainant is n.ot 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 his complaint was justified or unjustified. He can act
even suo motu. His powers are not limited like the powers of a
Civil Court.
Position of Ombudsir.an-Generally, the Ombudsman is a judge
or a lawyer or a high officer and his character, reputation and
integrity are above board. He is appointed by the Parliament
and thus, he is not an officer in the administrative hierarchy. He
is above party politics and is in a position to think and decide
objectively. There is no interference even by Parliament in the
discharge of his functions. He makes his own recommendations
281

to eliminate the causes of complaints. Ombudsman is thus in a


strong posititon to redress individual grievances arising out of
bad administration.
Development of the Institution of the Ombudsman-The
institution of the Ombudsman originated in Scandinavian
countries. Sweden was the first Country to adopt this institution
as early as 1809. Since then it has been adopted in a number
ofcountries, such as Finland, 1919; Denmark, 1954; Norway,
1960; New Zealand, 1962; Mauritius, 1966; Guyana, 1966;
United Kingdom, 1967; Australia, 1976.
Ombudsman In New Zealand-The office of Ombudsman was
created in New Zealand in the year 1962 by passing the
Parliamentary Commissioner (Ombudsman) Act, 1962. But this
Act was replaced by the Ombudsman Act, 1975. The 1975 Act
provided for one or more Ombudsman. (>ni of them is to be
designated as the Chief Ombudsman for co-ordination and
allocation of work among the Ombudsmen. On the
recommendation of the House of Representatives, the
Governor-General appoints each Ombudsman. In this way, the
Ombudsman is the nominee of the House and enjoys support
from all sections of the house. This factor is very important, for
unless he enjoys support from all sections of the House, his
work will not command respect and creditibility. Moreover, this
shows that he is independent of the government whose actions
are investigated by him.
Term of Office-The Ombudsman holds office for a term of five
years and can be re-appointed. He can be removed from his
282

office by the Governor-General upon an address from the


House of Representative on such grounds as disability,
bankruptcy, neglect of duty or misconduct.
Procedure to be Followed-A person who is aggrieved from
administrative action may make a complaint to the
Ombudsman. He can undertake investigation suo motu also.
Any petition can be referred to him by a Committee of the
House for investigation. If the Chief Ombudsman gives consent,
the Prime Minister may also refer a matter to Ombudsman for
investigation and report.
Powers of Ombudsman-He is empowered to investigate any
action, decision, recommendation or inaction relating to a
matter of administration on the part of a department or
organisation placed under his jurisdiction. He is not bound to
look into all complaints. Thus, he can refuse to investigate into
trivial, frivolous or vexatious complaints or those not made in
good faith or a complant in which the complainant does not
have personal interest. He has power to review an Act even
though it is made final by the concerned statute.
Position of Ombudsman in England-The Ombudsman in England
is officially known as the Parliamentary Commissioner. The
provision for the creation of the office of the Ombudsman was
made under the Parliamentary Commissioner Act, 1967. He has
an independent status and been given statutory powers. He is
appointed by the Crown and holds office till the age of 65 years.
He can be dismissed by a motion of Parliament. His salary and
pension are charged on the consolidated fund.
283

The Commissioner cannot entertain a complaint direct from a


citizen; it must come through a member of the House of
Commons. This is required to reconcile the notion of Ministerial
responsibility with the concept of such institution. He dees not
have any other power except to investigate and report.
He submits his report to the Select Committee of the House of
Commons which examines it and proposes action. Ministers are
not excluded from the purview of his jurisdiction. But certain
matters are excluded, such as matters affecting Foreign Affaris,
extradition, investigation of crime. Leaving
these exceptions, Parliamentary Commissioner may investigate
into allegations of'mal-administration' i.e., injustice caused by
action taken in the exercise of'administrative functions'.
Procedure to be Followed-The procedure followed by the
Ombudsman is informal. However, he is empowered to call for
oral or documentary evidence from anybody, excluding Cabinet
documents and to take evidence on oath. But he is not
empowered to punish anybody for contempt in refusing to
comply with his orders in such cases. He has power to refer the
matter for the consideration of the High Court.
Jurisdiction of Ombudsman-Thejurisdiction of the Ombudsman
is confined to faults in administration as distinguished from
questions of policy. Moreover, he has no power to implement
his finding. His only function is to report his finding to the
Parliament and it is left to Parliament to decide what action
should be taken on his report. Position of Ombudsman in
284

Australia-Since Australia is a federation, there is a two tier


Ombudsman system. Each State has its own separate
Ombudsman and there is the Ombudsman system, at the
Centre. As regards the common wealth Ombudsman system it
was established by the Ombudsman Act, 1976. But the 1976 Act
has been amended many times. The last Amendment was
passed in 1983.
Constitution of Australian Ombudsman-The Australian
Ombudsman system consists of the following(a) A commonwealth Ombudsman;
(b) Three Deputy Commonwealth Ombudsman; and
(c) A Defence Force Ombudsman.
The Ombudsman holds office for seven years. However, he is
eligible for reappointment. He is appointed by the Governor
General. He can hold office until the age of 65 years. He can be
removed from his office on an address by the two Houses of
Parliament praying his removal on the ground of misbehaviour
or physical or mental incapacity.
Jurisdiction of Ombudsman-The Ombudsman has been given
powers to investigate the complaints made to him against
action taken by several major government department. His
function is to investigate either on a complaint or suo motu a
"matter of administration" taken by a department. 'Taking of
action' refers to (a) the making of a decision or
recommendation or the formulation of a proposal, (b) failure or
refusal to take action. As regards the exercise ofjurisdiction by
the Ombudsman, the. Australian Prime Minister has stated that
the institution of Ombudsman has helped the government
285

administration to be "responsible, adaptive and sensitive".


According to him, the institution has neither come in the way of
Ministerial responsibility nor has prejudiced in any way was the
role of the Member of Parliament.
Position of Ombudsman in India -In India, the creation ofthe
institution of Lokpal similar to that of the Ombudsman was
recommended by the Interim Report ofthe Administrative
Reform Commission for the following reasons(i) Since a democratic government is a government of the
people, by the people and for the people, it has an obligation to
satisfy the citizens about its functioning and to offer tiiem
adequate means for the ventilation and redress of their
grievances.
(ii) The redressal of citizens grievances is basis to the
functioning of democratic governments, and will strengthen the
hands ofthe government in administering the laws of the land
without fear or favour, affection or ill-wili and enable it to go up
in public faith and confidence without which progress would not
be possible..
(iii) The existing institutions of judicial review and
Parliamentary control are inadequate in view of the ever
expanding range of. government functions most of which are
discretionary.
Principles for Establishing Lokpal-On the ground of the above
factors, the institution of Ombudsman was considered by the
Commission as an easy, quick, and inexpensive machinery for
286

the redress of individual grievances of the citizens, as in the


same cireunistnaces it was done in other countries where such
institution has already been established. The commission has
laid down the following principles which should be borne in
mind in establishing such institution in India.
(a) He should be demonstrably independent and impartial.
(b) His investigations and proceedings should be conducted in
private and should be informal in character.
(c) His appointment should, as far as possible, be non-political.
(d) His status should be compared with the highest judicial
functionary in the Country.
(e) He should deal with matters in the discretionary field
involving acts of injustice, corruption and favouritism.
(0 His proceedings should not be subject to judicial interference
and he should have the maximum latitude and power in
obtaining information relevant to his duties.
(g) He should not lock forward to any benefit or pecuniary
advantage from the executive Government.
Appointment of Lokpal and Service Conditions-As mentioned in
the Draft Bill appended to the Interim Report of the
Commission, the Lokpal is to be appointed by the President, on
the advice of the Prime Minister in consultation with the Chief
Justice of India and the Leader of the Opposition in Lok Sabha.
The person who is to be appointed as Lokpal must have severed
his connection, if any.with any Political Party, his
Membership in Parliament or the legislature of State or any
office of profit. He can hold office for five years with elegibility
for re-appointment. He shall not be removed except by the
287

procedure of impeachment, as in the case of Supreme Court


Judges. His status and salary shall be the same as that of the
Chief Justice of India.
Jurisdiction of Lokpal-The-Lokpal is empowered to investigate
into any administrative action taken by or with the approval of a
Minister or Secretary of Union or State Government, either on
receiving a written complaint by an aggrieved person or suo
motu, relating to mal administration, undue favour or
corruption.
But the Lokpai is not to undertake investigation in respect of w
hich the aggrieved person has any remedy before a Coiirt of Law
or Statutory Tribunal.
Matters Excluded from the Jurisdiction of Lokpal-However, the
follow ing matters are excluded from the jurisdiction t>f Lokpal(a) Action relating to Foreign Government;
(b) Action taken under Foreigner's Act and the Extradition Act;
(c) Action taken for the investigation of crime;
(d) Exercise of power to determine whether a matters shall go
to court or not;
(e) Action relating to commercial relations governed by
contract; (0 Action taken relating to appointments, removals
etc. of personnel; (g) A discretionary action, except where there
has been no exercise of discretion at all.
Procedure to be Followed-A person aggrieved by administrative
fault shall make complaint to the Lokpai. Investigation shall be
288

conducted in private and the Minister or Secretary against


whom mal administration is alleged shall have an opportunity to
comment on the allegations so made. The Lokpai shall have the
power of a Civil Court for the purpose of summoning witnesses
etc. for securing evidence.
Chequered Career of Lokpai Bill-The institution of Lokpai has
not so far been established owing to ihe chequered career of
the Lokpai Bill.
The Lokpai Bill, 1989-According to the provisions of the Bill, the
institution of Lokpai shall consist of a Chairman and two
members, who may be either sitting or retired Supreme Court
Judges. There are 33 CIs. in the Bill covering complaints within
the meaning of the Prevention of Corruption Act, 1988, against
the Council of Ministers including the Prime Minister as well.
Tne Prime Minister shall be the Lokpai, where in a case all or
any of the allegations have been sustained against a Minister.
However, in a case where the Prime Minister is involved, it is
left to the Lok Sabha to take action as "ultimately that political
functionary is responsible to the people through their
representatives". Where the allegation made in the complaint
has not been wholly or partially sustained, the case will be
closed by the Lokpal.
The institution will have no jurisdiction to inquire into any
matter concerning any person if lokpal or any member has any
bias in respect of the person or matter concerned.
Moreover, the Lokpal will also have no jurisdiction to inquire
289

into a matter referred for inquiry under the Commission of


Inquiry Act or into any complaint made five years after the date
of offence mentioned in the complaint.
The independence of the institution of Ombudsman has also
been ensured. The salary and service conditions including
removal from office will be the same as those of the Chief
Justice of India in case of Chairman and in case of members as
those ofthe judges of Supreme Court.
The institution of Lokpal shall authorise its officers and those of
investigating agencies to search and seize the documents
considered relevant to the inquiry.
According to CI. (4) of the Bill, a member ofthe institution of
Lokpal cannot be a member of the Parliament or any State
legislature or a political party and should not hold any office of
trust or profit or carry on any business or practise any
profession. They must sever all such connections when they
become members of the Lokpai institution.
Powers and Procedure-As regards procedure of working, CI. 10
provides that a complaint may be entertained from any person
other than a public servant. As per CI. 18, the Lokpal would
maintain secrecy of the information and evidence collected
during investigation. Lokpal may require a pubic servant or any
other person to give such information as may be desired or to
produce such, documents which are relevant to investigation.
He shall have the powers of a Civil Court under C.P.C. 1908 with
respect to the following (i) to summon a pei son and to examine
290

him on oath; (ii) to require a person to disclose and produce a


document; (iii) to take evidence on oath; (iv) to require any
public document or record to be placed before him; (v) to issue
Commissions for the examination of evidence and documents;
(vi) any other matters as may be provided.
Lokpal Bill, 1998- The Lokpal Bill, 1998 was introduced by the
Prime Minister Atal Bihari Bajpayee on August 3, 1998 in Lok
Sabha. According to the provision of this Bill, the Lokpal will
inquire into the charges of corruption alleged against the
existing Prime Minister, Ex-Prime Ministers' Members of both
the Houses of Parliament as well as Ex-Members of both the
Houses of Parliament. But Lokpal will not have power to inquire
into the charges against President, Vice-President, Speaker of
Lok Sabha, Comptroller and Auditor General, Chief Election
Commissioner and other Election Commissioner, Judges ofthe
Supreme Court and Members of the Union Public Service
Commission. Only such cases of corruption as those of the
duration often years shall be presented before the Lokpai.
According to another provision of the Bill, the institution of
Lokpai will consist of two members in addition to the chairman.
The chairman of the Lokpai institution will be a Judge of
Supreme Court in service or retired Chief Justice of the Supreme
Court or one of the Judges of the Supreme Court, such
appointment shall be for three years but no person can hold
office if he is of more than 70 years. The chairman of the Lokpai
institution and the members of the institution shall be
appointed by a Selection Committee. This seven member
Committee will consist of Vice-President, Prime Minister, Home
minister, Speaker of the Lok Sabha, opposition leader of Lok
291

Sabha and Rajya Sabha and the leader of that House whose
member is not Prime Minister, etc. The chairman shall be
appointed by the president on the recommendation of this
Committee headed by the Vice-President.
Constitutional Hurdles for the Establishment of the Proposed
Ombudsman-According to one of the recommendations of the
Commission, the proceedings before the Lokpai shall "not be
the subject to judicial interference". Thus, Clause 13 of the Draft
Bill appended with Interim Report says, "No suit, prosecution,
or other proceedings shall lie against the Lokpai or any of his
officers in respect of anything which is in good faith done or
intended to be done under the Act". This provision seeks to
make the Lokpai immune from judicial conjtrol. However, it may
be pointed out that this provision may exclude the jurisdiction
of inferior Court only but not the jurisidiction of High Courts
under Arts. 226-227 or of the Supreme Court under Art. 32, 136,
unless the Constitution is amended to that effect. This is so
because the Constitutional powers of the Supreme Court and
High Courts cannot be taken away by ordinary legislation. In the
absence of such constitutional amendment, the Lokpai will be
subject to the supervisory jurisdiction of the Supreme Court or
of the High Courts as any other Administrative Authority and
proceedings are bound to be challenged in these Courts. In the
event of such happening, the object of making Lokpai immune
from judicial interference will be defeated.
On the other hand, if the Constitution is amended excluding the
Lokpai from the supervisory jurisdiction of the Supreme Court
and the High Courts, there will be infringement of the Rule of
292

Law which has been characterised as a basic feature of the


Constitution.
There are certain other Constitutional hurdies in adopting the
institution of Lokpai in our country which cannot be ignored. It
is argued that the doctrine of collective responsibility of
ministers, a basic principle of our Parliamentary democracy
wculd be in conflict with the institution of a Lokpai.
Conclusion-We can conclude the position of ombudsman with
the observation made by J.P.B. IMukharji, who has rightly
observed that in India the institution of Ombudsman is not
suitable. He said; "The Ombudsman is contrary to the basic
letter and spirit of the Indian Constitution. Unless one is
prepared to throw the whole Indian Constitution lock stock and
barrel overboard, an Ombudsman cannot fit into Indian
Constitution

Q. 29 (a). What are the ordinary remedies available to an


aggrieved
person
against
the
wrongful
actsof
theAdministrative action?
Or
Write short notes on Injunction, Declaration and Action for
Damages.

Ans. Ordinary Remedies Available to an Aggrieved Person-The


following ordinary remedies are available to the person
aggrieved by the administrative action1. Injunction: 2. Declaration; and 3. Action for damages.
293

Definition of Injunction -According to Smith, "An injunction is an


order of a Court addressed to a party to the proceedings before
it, requiring him to refrain from doing or to do a particular act."
Thus, injunction is an equitable remedy.lt is a judicial process by
which one who invaded, or is threatening to invade the rights,
legal or equitable, of another is refrained from continuing Or
commencing such wrongful act. Injunction is a coercieve
remedy. But it is not rigid and can be tailored to suit the
circumstances of each individual case. Courts can use injunction
to review all action, judicial, quasi-judicial, administrative,
ministerial or discretionary. As an equitable remedy, it leaves a
discretion with the court to prevent its abuse. It can be issued
against any authority or person, constitutional, statutory, nonstatutory or private.
Kinds of Injunction-Injunction is divided into two categories(i) Prohibitory; and (ii) Mandatory.
(i) Prohibitory Injunction-A prohibitory injunction forbids a
defendant to do a wrongful act which would be an infringment
of some right of the plaintiff, legal or equitable.
A prohibitory injunction is of two types(a) Temporary; and (b) Perpetual.
(a) Temporary Injunction Temporary injunction is granted as an
interim measure which is preventive in character. It is granted
on an application by the plaintiff to preserve status quo until
the case is heard and decided.
According to S. 37(1) of Specific Relief Act, 1963 injunction is to
continue until a specified time or until further order of the
Court; it may be granted at any stage of a suit The grant of
temporary injunction is governed b\ the provisions of C.PC. For
grant ofthe interim injunction, three conditions are required to
294

be satisfied (i) a prima facie case; (ii) the balance of


convenience; and (iii). No existence of alternative remedy.
Administrative Law I oj
fn Chandu Lai Vs. Delhi Municipal Corporation, A.I.R. 1978, the
Court did not grant an interim injunction against the
corporation in the matter of cancellation of the plaintiff's
licence to use a kiosk. Delivering the judgment, the Court
observed that such an injunction can be granted only if the
plaintiff shows that he has a legal right which has been
infringed. Grant of an injunction is a matter of discretion with
the court. In its exercise the Court has to see whether the
plaintiff has triable case. It has also to be shown that balance of
convenience lies in maintaining status quo.
(b) Perpetual Injunction-A perpetual injunction is granted after
final disposal of the case on merits to prevent the infringement
of those rights to which the plaintiff is entitled permanently. It
is similar to a decree and decides a right. Ss. 36 to 42 of the
Specific Relief Act, 1963 deal with the permanent injunction.
The graijt of perpetual injunction is governed by S. 38 of the
Specific Relief Act,. 1963. In case of threat to the plaintiff's right
to, or enjoyment of property, by.the defendant, the Court may
grant perpetual injunction in the following circumstances(i) Where the defendant is a trustee of the property for the
plaintiff;
(ii) Where there exists no standard for ascertaining the actual
damages caused, or likely to be caused, by the invasion;
(iis) Where the invasion is such that compensation in money
would not afford adequate relief; and
(iv) Where the injunction is necessary to prevent multiplicity of
the judicial proceedings.
295

2. Mandatory Injunction-A mandatory injunction not only


forbids a person from continuing with a wrong action but also
imposes a duty on him to do a positive act. The Court may, at its
discretion, grant the injunction U/S. 39, of the Specific Relief Act
as a final decision. As provided U/S. 39, when to prevent the
breach of an obligation, it is necessary to compel the
performance of certain acts, which the court is capable of
enforcing, the Court may grant an injunction to prevent the
breach complained of, and also to compel the performances of
the requisite acts.
3. Declaration-In a declaratory action, the right of the parties
are determined without adding further relief. The essence of a
declaratory judgment is that it states the rights or legal position
of the parties as they stand, without altering them in any way
though it may be supplemented by other remedies in suitable
cases. A declaratory judgement by itself merely states some
existing legal situation. It requires no one to do anything and to
disregard it will not amount to contempt of Court.
In the field Of administrative law, in an age when more and
more individual action is liable to bring him in conflict with the
administration, declaratory action satisfies the need of a simple
but all embracing methods of redress against the
administration. Declaratory order is not enforceable. But in
administrative law, this factor is insignificant, as "'no
administrative agency can afford to be so irresponsible as to
ignore an adverse decision of a High Court Judge. Moreover, it
enables the party to take other actions pursuant to such
declaration.
Object of Declaratory Judgment-The purpose of granting
declaration is the removal of existing controversy and to avoid
296

chance of future litigation. In many cases, there may be doubts


about the legal rights. As regards public authorities, such doubts
may put them in dilemma; for doing the act may entail ultra
vires and not doing may amount to unaction. If the existing
doubt regarding legal rights is removed, then it can be said that
public authorities would act accroding to law.
It may, however, be noted that declaration made by the Court is
binding only on the parties to the suit and persons claiming
through them.
Conditions for the Grant of Declaration-The following three
things are essential in order to seek declaration1. Plaintiff must be Entitled to a Legal Character or to a Right
to Any Property-In juristic parlance, legal character is equivalent
to legaj status which may cover many situations. Thus, a
declaration can be sought by the plaintiff that his nomination
paper at a municipal election has been illegally rejected or that
an order compulsorily retiring him is illegal and ultra vires.
2. The Right or Character must be Questioned There must be
some person or authority denying or interested to deny such
character or right. The Courts do not act as advisory bodies and
they can refuse to ;>rant declaration if the question is academic
or hypothetical. Thus, in Barnato Vs. Sanges, Re (1949), where
the trustees sought to ascertain whether, if they took certain
steps the trust would be liable to estate duty, and posed a
hypothetical question of law, the declaration was refused.
3. Further Relief must be Claimed-Consequential relief is
further relief which directly flows for the declaration. In the
case of a wrongful dismissal where suit for declaration is filed,
the consequential relief would be reinstatement and arrears of
salary. The purpose behind this requirement is to avoid further
297

litigation.
4. Action for Damages-A person wronged by administrative
action can challenge its validity in an action for damages by
filing a suit in the Civil Court of first instance where the
procedure is regulated by C.P.C. The requirement of two
months notice is mandatory U/S. 80 before filing the suit, unless
it is waived by the Court in special circumstances. In Ratlam
Muncipality Vs. Virdi Chand A.I.R. 1980, S. 133 Cr. P.C. which
authorises a Magistrate on receiving the report of Police Officer
or other information to make an order for remeding public
nuisance was invoked by one of the residents of a locality
against the municipality for failure to carry out the duty'of
constructing a drain pipe. Turning down the plea of lack of fimds
with the municipality, the Supreme Court directed the
Committee to follow a time bound programme laid down by it
for the purpose.

Q. 29 (b). State the Constitutional safeguards available to the


civil servants in India. Do these safeguards apply to the (a)
Members of the Defence Forces, (b) Employees of the Public
Corporation and (c) Employees of a Administrative Law
University? Or What is the doctrine of pleasure? What
protections have been afforded to a civil servant by Art. 311
against arbitrary dismissal, removal or reduction in rank of
civil servants? State the circumstances under which the said
protections are not available.

Ans. Meaning of the Doctrine of Pleasure-According to Common


298

Law a civil servant holds his office "during the pleasure of the
Crown". This means that his services can be terminated at any
time by the Crown, without assigning any reason. Even if there
is a contract of employment between him and the Crown, the
Crown is not bound by it. In other words, if a civil servant is
dismissed from the service he cannot claim arrears of salary or
damages for premature termination of his service. This
jurisdiction of Crown is called "Doctrine of Pleasure". The
doctrine of pleasure is based on the public policy.
Art. 310 of the Indian Constitution incorporates the Common
law doctrine of pleasure. It expressly provides that all persons
who are members of the Defence Services or the Civil Services
of the Union or of All-India Services hold office during the
pleasure of the President. Similarly, members of the State
Services hold office during the pleasure of the Governor. But
this Doctrine of Common law has not been fully adopted in Art.
310. A civil servant in India can always sue for the arrears of
salary vide : State of Bihar Vs. Abdul Majid, AI.R. 1954 S.C. 245.
The rule is qualified by the opening words of Art. 310 "except"
or "expressly provided by the Constitution". Thus, Art. 310 itself
places restrictions and limitations on the exercise of the
pleasure and is further limited by Art. 311 (2).
Restrictions on the Doctrine of Pleasure-These are as under(i) The pleasure of the President or Governor must be
exercised in accordance with the procedural safeguards
provided by Art. 311.
(ii) The tenure of the Supreme Court Judges Art. 124, High
299

Court Judges Art. 218, Auditor-General of India Art. 148 (2). The
Chief Election Commissioner Art. 324, and the Chairman and
members of the Public-Service Commission Art. 317 are not
dependent on the pleasure of the President or the Governor.
(iii) The doctrine of pleasure is subject to the Fundamental
Rights.
Constitutional Safeguards Available to Civil Servants-Art. 311 of
Indian constitution provides the following two safeguards to
civil servants against any arbitrary dismissal from their posts1.
No
Removal
by
Subordinate
Authority-Art.311
(l)saysthatacivil servant cannot be dismissed or removed by any
authority subordinate to the authority by which he was
appointed. This does not mean that the removal or dismissal
must be by the same authority who made the appointment or
by his direct superior. It is enough if the removing authority is of
the same oi co-ordinate rank as the appointing authority, in
Mahesh (Vs. State of U.I'., A.I.R. 1995 S.C. 20, the person
appointed by the Divisional Personnel (Miner, E.I.R., was
dismissed by the Superintendent, Power, E.I.R fhe Court held
the dismissal valid as both the officers were of the same rank.
2. Reasonable Opportunity to Defend be Given-Art. 31112) lays
down that a civil servant cannot be dismissed or removed or
reduced In rank unless he has been given a reasonable
opportunity to show cause against the action proposed to be
taken against him.
Originally, this opportunity to defend was given to a civil servant
300

a* two stages-(i) At the enquiry stage, and (ii) At the


punishment stage. But 42nd Amendment Act, 1976 has
abolished the right ofthe Government servant to make
representation at the punishment stage.
When does Termination of Service Amount to Punishment?'The protection of Art. 311 is available only when the dismissal,
removal or reduction in rank is by way of 'punishment'; In
Parshottani Lai Phingra Vs. Union of India, A.I.R. 1958 S.C. 36,
the Supreme Court has laid down two tests to determine
whether the termination is by way of punishment(i) Whether the servant had a right to hold the post or the
rank;
(ii) Whether he has been visited with evil consequences.
What is 'Reduction in Rank'?-Within the meaning of Art. 311 (3)
it means reduction from a higher to a lower rank or post and
not merely losing place in rank Or cadre. In State of Punjab Vs.
Ktehan Das, A.LR. 17I S.C, 766, the respondent was a police
constable in ihe' Punjab Police Service In I960, he was served
with a charge-sheet attributing to him arrogance and
indiscipline. A departmental enquiry was held under the Punjab
Police Rules. The charges against him were proved and an order
was issued forfeiting his entire service. Supreme Court held that
order did not amount to reduction in rank.
In State of Mysor Vs. M. K. Godgoii, A.LR. 1977 S.C. 1617, the
respondent, was a Government servant holding a substantive
post-of a clerk. He was promoted as Awal Karkun in officiating
capacity. But subsequently, he was reverted to his*substantive
301

post on the ground of unsatisfactory work. He challenged the


validity of the order on the ground fha? -he was reduced in rank
without giving a reasonable opportunity in Art. lik' (2) of the
Constitution. The Court, however, held ihat the reversion in this
case not amounted to reduction in rank by way of punishment
and hence A rt. 31! (2)" was not attracted.
Suspension is not Punishment-The suspension of a Government
servant from service, is neither dismissal or removal nor
reduction in rank, therefore, if a Government servant is
suspended he cannot claim the constitutional guarantee of
reasonable opportunity vide: Sukh Bansh Singh Vs. State of
Punjab, A.I.R. 1962 S.C. 1711.
Compulsory Retirement is Simpliciter not a Punishment -A
premature retirement of a Government servant in 'public
interest' does not cast a stigma on him and no element of
punishment is involved in it and hence the protection of Art.
311 will not be available. In Shyam Lai Vs. State of U.P. A.I.R.
1954 S.C. 369, the question involved was whether compulsory
retirement amounted to removal or dismissal within the
meaning of Art. 311 of the Constitution. The Supreme Court
held that a compulsory retirement does not amount to
dismissal or removal as it carries no element of charge or
imputation, and therefore, does not attract the provisions of
Art. 3*1. The compulsory retirement under service rule is not
violative of Art. 311 (2) if it is exercised bona fide and in the
public interest.
if the termination of the service is done in accordance with the
302

terms of servke. oi service rules it does not amount to dismissal


or removal. In Gopai Krishna Vs. Union of India, a railway
employee was dismissed after givmt, one month's notice
according to tiie terms of his agreement of service. The Court
held that Art. 311 (2) did not apply, and therefore, the dismissal
was held valid.
In K. Nagaraj Vs. State of A.P., A.I.R. 1985, S.C. 551, it has been
held that the termination of service of an employee on account
of his reaching the age of superannuation does not amount of
his removal from service within the meaning of Art. 311 (2). In
this case, it was held that the reduction of the age of
retirementfrom 58 to 55. under the Andhra Pradesh Public
Employment (Regulation, of Conditions of Service) Ordinance,
1983, was not violative of Art.14 or 16 since it was not arbitrary
or unreasonable in the circumstances of the case. The
retirement of an employee in accordance with a law or rules
regulating his conditions of service does not amount to his
removal from service.
Art, 3 i 1 Applies to both Temporary and Permanent ServantsThe Constitutional guarantee of reasonable opportunity is
available to both permanent and temporary servants. In
Parshottam Lal Dhingra Vs. Union of India, A.I.R. s958 S.C. 36,
the Supreme Court held that "Art. 310 in terms, makes no
distinction between permanent and temporary members of the
service or between persons holding temporary or permanent
post in the matter of their tenure being dependent upon the
pleasure of President or the Governor, so does Art. 311 in our
view, make no distinction between the two classes, both of
303

which are, therefore within its protection and the decisions


holding the contrary view cannot be supported as correct."
In which Cases Opportunity must be Given-An opportunity to
show cause must be given if two conditions are satisfied(i) The employee is: a member of a civil service of the Union,
or an all-India service, cr a civil service of a State, or holds a civil
post under the Union or a State.
(ii) Such employee is sought to be dismissed, removed or
reduced in rank.
When Protection is Not Available?-Even where a person holding
a civil post is dismissed, removed or reduced in rank, no such
opportunity need be given in the following three classes of
cases(a) Where a person is dismissed or removed or reduced in rank
on the ground of conduct which has led. to his conviction on a
criminal charge;
(b) Where an authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied that for some
reason, to be recorded by that authority in writing, it is not
reasonably practicable to give to that person an opportunity of
showing cause; or
(c) Where the President or Governor, as the case may be, is
satisfied that in the interest of the security of the State it is not
304

expedient to give that person such an opportunity. (Provisio to


Art. 311 (2).
(a) Is Protection of Art. 311 Available to Members of Defence
Forces?-Infact, protection given under Art. 311 is available to
those servants who hold a 'civil post' under the Union or the
States. These safeguards are not available to defence personnel
or even to a civilian employee in defence service like Military,
Engineering and Military Farms etc. They can be dismissed from
service without assigning any reason.
The protection of Art. 311 is not available to military personnel
who are governed by the Army Act. The term civil post is not
defined in the Constitution, but having regard to Art. 310 and
311 it appears to have been used in contra-distinction to
'defence post'. The term 'civil post' means an appointment, or
office or employment on the civil side of the administration. In
State of U.P. Vs. A.N. Singh A.I.R. 1965, the
Supreme Court has held that a person holds a 'civil post' if there
exists a relationship of master and servant betweeen the State
and the person holding the post. The relationship is established
if the State has right to select and appoint the holder of the
post, right to control the manner and method of his doing the
work and the payment by it of his wages or remuneration. A
person employed in police holds a 'civil post' Vide: Jagannath
Parsad Vs. State of U.P. A.I.R. 1961.
Are the Protections Available to Employees of a Corporation or
University?-No, it was held in Sukhdev Singh Vs. Bhagwat Ram,
305

A.I.R. 1975 S.C. 1331, that the employees of statutory


corporations or Government companies registered under the
Companies Act are not civil servants and as such are not
entitled to the protection of Art. 311.

Q. 29 (c). What do you mean by Central Vigilance Commission


(CVC)? Explain the aim of its constitution, jurisdiction,
functions and object of its establishment. Also explain the
legal status of CVC. Or
Discuss in detail the objects and functions of the Central
Vigilance Commission.

Ans. It is to be noted that in any society where there is a system


of government, improvements in the grievance machinery have
always engaged the attention of the people. This is true to India
as well. A serious problem affecting the Indian polity is that
corruption filters from the top. Corruption in administration
distorts the decision-making process and gives rise to all kinds
of vices. People require incorruptibility in the administration of
government departments. It was against this backdrop that the
establishment of the Central Vigilance Commission (CVC) was
recommended by the Committee on Prevention of Corruption
i.e., the Santhanam Committee.
The Committee known after the name of its Chairman was
appointed in 1962. It recommended for the establishment of a
Central Vigilance Commission, the highest authority. The
recommendations of the Santhanam Committee were accepted
306

by the government and thus the Central Vigilance Commission


was created in February, 1964 by a resolution of the
Government of India.
Objects of the Establishment of the Commission-The
Sanathanam Committee had recommended that the
Commission should be concerned with two major problems
facing the administration(i) Prevention of corruption and maintenance of integrity
amongst the government servants; and
(ii) Ensuring just and fair exercise of administrative powers.
Thus, two major matters were suggested to come within the
purview of the Commission, viz,, cases of corruption and cases
involving mal-adminis-tration. The government accepted the
suggestion as regards corruption but not mal-administration.
The reason for that mal-administration was big enough to
enquire a separate machinery by itself.
Appointment of Vigilance Commissioner and Service
Conditions-The Vigilance Commissioner is to be appointed by
the President. He is given the same security of tenure as a
member of the Union Public Service Commission. He is
appointed for a term of six years or till he attains the age of 65
years whichever is earlier. However, his term has been reduced
through a resolution of the government in 1977 from six to
three years. He can be removed or suspended from the office
by the President on the ground of misbehaviour but only after
the Supreme Court has held an inquiry into his case and
recommended action against him.
307

Status and Role of the Vigilance Commission-The Central


Vigilance Commission is attached to the Ministry of Home
Affairs of the Government of India. Nevertheless, it is
independent in its functioning and has the same measure of
independence and autonomy as Union Public Service
Commission. It is not subordinate to any Ministry and no order,
direction or instruction can be issued by any Ministry so as to
interfere with its independent operation.
It must be noted that the Commission is mainly concerned with
the matters of corruption, misconduct, lack of integrity or other
kinds of malpractices or misdemeanours on the part of
government servants. It has a limited role. It is only an advisory
body. The main tasks of the Commission are co-ordination,
supervision and advice rather than investigation of complaints.
It has no machinery to investigate or inquire into complaints of
corruption except to a limited extent as regards its role.
Jurisdiction of CVC-The Vigilance Commission has jurisdiction in
respect of matters to which the executive power of the Centre
extends. The powers of the Commission are set out in the
resolution under which it is established. It exercises general
control and supervision over the Vigilance and anti-corruption
work carried on in the various Ministries, Departments and
Public Undertakings.
The commission is assisted by the Central Bureau of
investigation (CBI) in its operation. Moreover, the Commission
has been given certain functions in relation to the
recommendations made by the CBI in cases investigated by it.
308

Functions of CVC-On receiving complaints, the Commision


refers them either to the CBI or the concerned
Ministry/Department for investigation. After investigation,
these bodies send their report to the Commission for advice.
Thus, the Commission does not investigate the complaint. It
depends on other organisations for the purpose. But there is
one exception. The Chief Technical Examiner's Organisation
attached to it conducts technical examination of public works
including checking of bills of contractors, contracts and muster
rolls.
To Give Advice about the Necessity of Action to be Taken- The
Commission advises as to the necessity of action to be taken in
the following cases(i) Reports of investigation by the CBI involving departmental
action or prosecution in cases either referred to it by the
Commission or otherwise.
(ii) Reports of investigation by the Ministry or Department
involving disciplinary action in cases either referred by the
Commission'or otherwise.
(iii) Cases received direct from Public Sector Undertakings and
statutory Corporations, etc.
The Commission is given power to require that oral inquiry in
any departmental proceeding should be interested to one of
the Commissioners for departmental inquiries.
All the Chief Vigilance Officers are required to. ftirnish to the
309

Commission for its assessment of a resume of the Vigilance


work done in their .organisation with special emphasis on
preventive Vigilance.
Suggestions of Changes in Procedure and Practice -The
Commission may suggest changes in the procedure or practice
where it appears that the existing procedure or practice affords
scope for corruption or misconduct. The Commission may also
initiate review of administrative procedure and practice in so far
as the same relates to the maintenance of integrity in the
administration.
Conducting of Orientation Courses for Vigilance Officers-The
Commission also discharges the functions of conducting
orientation courses for Vigilance Officers and courses in the
context of departmental proceedings review of Vigilance
arrangements in Ministries/Departments/Public Undertakings.
It also gives advice in matters relating to interpretation of laws
and procedures governing departmental proceedings, etc.
Submission of Annual Report to Home Ministry-The
Commission is required to submit an annual report to the
Ministry of Home Affairs, stating the cases in which its
recommendations have not been accepted or acted upon by the
competent authorities. A copy of the report together with the
government's memorandum explaining the reasons for nonacceptance of any
recommendation made by the Commission is to be laid by the
Ministry of Home Affairs before eacti House of Parliament.
310

Legal Status of Central Vigilance Commission-In pursuance


ofthe directions given by the Supreme Court the Central
Government issued on August 25, 1998, an Ordinance which
conferred legal status on Central Vigilance Commission. In this
connection, it may be pointed out that the retiring Chairman
Mr. S. B. Giri resigned his office on April 1,1998. He left his
office also on August 25 1998. According to the directions of the
Supreme Court as given in Vineet Narain's Case the charirman
was to be appointed but it was kept pending till the Act was
passed.
The Law Commission headed by Justice Jeevan Reddy had
prepared the draft of Central Vigilance Commission Act. On the
basis of the draft the President issued the Ordinance. According
to the provisions of the Ordinace, in addition to the Chief
Commission, the Central Vigilance Commission shall consist of
three additional Commissioners as well. All these
Commissioners shall be appointed by a selection Committee
headed by the Prime Minister of India. The term of service of
each Commissioner shall be four years. But the maximum age
for continuing in the office of . Commissioner shall be 65 years.
The Commission in addition to keeping watch on the working of
investigating agencies shall give advice to public undertaking,
Banks, Central State Government. For appointing heads of
investigating agencies, a committee shall be constituted
incharge of Central Vigilance Commission.

311

Q. 30 (a). What do you mean by the Institution of Lokayukta?


State the Constitution and Functions of the State Lokayukta
specially of U.P. State the procedure to be followed by the U.P.
Lokayukta.

Ans. Institution of Lokayukta in State-While the idea of


establishing the institution of Lokpal at the Centre has proved
abortive, a number of States have adopted the Ombudsman
System by enacting Lokayukta Laws, e.g., Uttar Pradesh
Lokayukta and Up-lokayukta Act, 1975. Madya Pradesh
Lokayukt evam Up-Lokayukt Adhiniyam, 1981, Orrisa Lokpal and
Lokayuktas Act, 1970, Kerala Public Men (Prevention of
Corruption) Act, 1983, Himanchal Prades Lokayukta Act, 1983,
Kamataka Lokayukta Act, 1984, Gujarat Lokpal and Lokayukta
Act, 1975, Bihar Lokayukta Act, 1973, Mahrashtra Lokayukta
and Up-Lokayuktas Act, 197!, A.P. Lokayukta and Up-Lokayuktas
Act, 1983, Karnataka Lokayukta Act, 1984.
Constitution of the Institution of Lokayukta in States-In U.P.,
the U.P. Lokayukta and Up-Lokayukta Act of 1975 was passed.
According to this Act, the Loayukta shall be appointed by the
Governor with the consultation of the Chief Justice of the HighCourt and leader ofthe opposition in the Legislative Assembly.
The Up-Lokayakta shall be appointed by the Governor in
consultation with Lokayukta. The Up-Lokayukta is subject to the
administrative control of Lokayukta.
Qualification of Lokayukta-The Lokayukta shall be a person who
312

is or has beenajudgeofiheSupremeCourtora High Court. The


Lokayukta or Up-Lokayukta should not be a member of any
Legislature and also should have no connection with any
political party. He shall not hold any office of profit nor should
carry any business or any profession.
Term of Office of Lokayukta-He shall hold the office for five
years unless he resigns earlier or is removed from the office by
the Governor on the ground of misconduct or incapacity. It
should be noted that Lokayukta shall be removed from his office
subject to the provisions of Article 311 of the Constitution. An
enquiry is to be conducted by a Judge who is or has been a
Judge of the Supreme Court or Chief Justice of a High-Court and
in case of Up-Lokayukta, by a person who is or has been a Judge
of the Supreme Court or of the High-Court. The enquiry report
must be approved by at least two-third majority of each house
of state legislature..
Functions of Lokayukta-The functions of Lokayukta will be
confined only to the allegations relating to actions taken by a
Minister or a Secretary of the State Government, excluding
those of the Chief Minister. The nature of allegations against
actions of such persons which may be inquired into by the
Lokayukta is of wide range, including not only abuse of official
position but also of corruption, viz., that he(i) has abused his position as such to obtain any gain or
favour to himself or to any other person or to cause undue
harm to any person;
(ii) was actuated in the discharge of his functions as such
public servant by improper or corrupt motives;
313

(iii) is guilty of corruption; or


(iv) is in possession of pecuniary resources or property
disproportionate to his known source of income and such
pecuniary resources or property held by the public servant
personally or by any member of his family or by some other
person on his behalf.
Appointment of Lokayukta-The Lokayukta is appointed by the
Governor after consultation with the Leader of the opposition,
while the Up-Lokayukta shall be appointed in consultation with
the Lokayukta. The Up-Lokayukta can inquire into complaints
against officers other than Ministers.
For policy and efficiency of their departments ministers are
responsible to Parliament but for administrative lawlessness
they may be made accountable to the ombudsman.
Jurisdiction of Lokayukta in U.P.-On a complaint received
involving a grievance or an allegation being made in that behalf,
the Lokayukta may investigate any action which is taken by, or
with the general or specific approval of(i) a Minister or Secretary; and
(ii) any public servant including a public servant notified for
this purpose by the State Government.
Whereas on a complaint received involving a grievance or an
allegation being made in that behalf, the Up-Lokayukta may
investigate any action which is taken by or with the general or
specific approval of any public servant not being a Minister or
Secretary.
Procedure to be Followed by U.P. Lokayukta-The Lokayukta or
314

Up-Lokayukta shall conduct investigation only on.a complaint


made by the aggrieved person. Where the Lokayukta or UpLokayukta proposes to conduct any investigation, he(aj shall forward a copy of the complaint to the public servant
concerned and the competent authority concerned;
(b) shall afford to the public servant concerned an opportunity
to his comments on such .complaint; and
(c) may make such orders as to the safe custody of the
documents relevant to the investigation, as he deems fit.
Every such investigation shall be conducted in private, and in
particular, the identity of the complainant and of the public
servant affected by the investigation shall-not be disclosed to
the public or the press whether before, during or after the
investigation.The Lokayukta or Up-Lokayukta may conduct any
investigation relating to a matter of definite public importance
in public, if he, for reasons to be recorded in writing, thinks fit
to do so.
If, after investigation of any action in respect of which a
complaint involving a grievance has been made, the Lokayukta
or Up-Lokayukta is satisfied that such action lias resulted in
injustice or undue hardship to the complainant or any other
person, the Lokayukta or Up-Lokayukta shall by a report in
writing, recommend to1 the public servant and the competent
authority concerned that injustice or hardship shall be remedied
or redressed in such manner and within such time as may be
specified in the report. The competent authority shall intimate
to the Lokayukta or Up-Lokayukta the action taken for
compliance with the report.The Lokayukta or Up-Lokayukta
shall present annually a consolidated report on the
performance of their functions to the Governor. The Governor
315

shall cause a copy thereof together with an explanatory


memorandum to be laid before each House of the State
Legislature.

Q. 30 (b). Define a Public Corporation. What are its


characteristics and classification? Explain its Constitution,
Functions, Rights and Liabilities.

Ans. Definition of Public Corporation-The different Jurists have


defined public corporation difFerently1. According to Wade, "A Public Corporation may be defined
as an agency created by a statute of legislature, running a
service on behalf of the government but as an independent
legal entity with funds of its own and largely autonomous in
management. It has no regular form and no specialised
function. It is employed wherever it is convenient to confer
corporate personality.
2. According to Garner, "A Public Corporation is a legal entity
established normally by Parliament and always under legal
authority, usually in the form of a
special statute charged with the duty of carrying out specified
governmental functions in the national interest, those functions
being confined to a comparatively restricted field, and
subjected to control by the Executive, while the Corporation
remains juristical ly an independent entity not directly
responsible to Parliament".
316

3. According to Halsbury's Laws of England, "A Corporation is


defined as a body of persons (in the case of Corporation
aggregate) or an office (in the case of Corporation So!e) which,
is recognised by law as having a personality which is distinct
frornt the separate personalities of the members of the body or
the personality of the individual holder for the time being of the
office in question".
Characteristics of Public Corpo ration-Since a Public
Corporation is a "hybrid organism" combining some of the
features of a Government Department white some of the
features of a business company, it is difficult to precisely
enumerate the characteristics of Such Corporation. However, it
can be stated that Public Corporations, whether created by or
under statutes, possess the following chief characteristics1. A Public Corpration is created by or under a statute. It
operates an activity on behalf of the government in public
interest. It discharges functions of a governmental character.
2. A Public Corporation possesses an independent corporate
personality. It is a body corporate with perpetual succession
and common seal. It can sue and be sued in its Corporate name.
3. A Public Corporation has those rights and exercises those
functions entrusted to it by its constituent statute by which it is
created. Any actions of such Corporation, not expressly or
impliedly authorised by the statute is ultra vires and cannot
bind the Corporation.
4. A Public Corporation can possess, hold and dispose of the
property by its corporate name.
5. Depending on the provisions of the statute by or under
which a Public Corporation is created such Corporation is by and
317

large an autonomous body. The Corporation is its own master in


day-to-day management and administraion.
6. The Constituent statute may delegate rule-making pewer
to a Public Corporation. Such rules, regulations and bye-laws
are binding and enforceable unless they are ultra vires the
Enabling Act and the Constitution.
7. A Public Corporation created by or under a statute is a
State' within the definition of the term U/Art. 12 of the
Constitution, and therefore, is subject to the Writ jurisdiction
ofthe Supreme Court U/Art. 32 and of the High Courts U/Art.
226 of the Constitution.
8. Employees of a Public Corporation do not hold a 'Civil Post'
under the Union or the State within the meaning of Part XIV of
the Constitution.
9. A Public Corporation is not a citizen' within the meaning of
Part III of the Constitution, and therefore, it cannot claim the
benefits of those Fundamental Rights which have been
guarnateed only to the citizens;
Classification of Coi poraticii-A logical classification, of Public
Corporations is not possible. Functionally, Public Corporation
may be classified into four 'ill-asforted groups, i.e.,
(i) Commercial Corporations; i.e., Hindustan Machine Tools
Ltd. etc.
(ii) Development Coi poratinn; i.e., Dainodar Vally Coiporation.
(Hi) Social Services Corporation; i.e., Housing Hoard etc.
(iv) Financial Corporation: i.e., Life insurance Corporation etc.
(b) Constitution of Corporation-! he Corporation is constituted
of such number of persons not exceeding sixteen as the Central
Government may think fit to appoint.lt has a Central Office and
a number of Zonal Offices. It enjoys exclusive privilege of
318

carrying on Life Insurance business in India.


(c) Functions of the Corporation-Underthe Act, the
Corporation is required to develop the business to the best
advantage of the community. The Central Government is
empowered to give directions in writing in the matters of policy
involving public interest. The Corporation shall be guided by
such directions.
Rights of a Public Corporation-A Public Corporation enjoys a
legal entity, and therefore, like a legal person, it can sue for the
enforcement of its 'egal rights. It should, however, be noted
that it is not a natural person, but merely an artificial person.
Being an artificial person, a Public Corporation exists only in
contemplation of law. Therefore, it cannot be said to be a
citizen within the mering of Citizenship Act, 1955. Accordingly, a
Corporation cannot have any Fundamental Right which are
conferred by the Constitution only op citizens. the same, the
Company's shareholders, being citizens, can claim protection of
those fundamental Rights. X company can maintain a petition
for the reasons that the rights of a shareholder and the
company which the chaieholders have formed are rather coextensive and denial to one of the fo.adg mental freedoms
would be denial to the other. There is no controversy on .'he poi
H that a Public Corporation can claim the benefit of Arts. 14 and
16 of Constitution.
Liabilities of Public Corporation-A Corporation is liable under
Contract, Torts and Crime also(a) Liability ir. Contract- A Public Corporation can enter into a
contract. It can sue and be sued for the breach of contract.
319

Since a public Corporation is a statutory public undertaking it


can do only those acts which are authorised by the statute
either expressly or by necessary implication. If any requirement
has been laid down in the constituent statute or in the rules,
regulations or bye-laws of the Corporation, it must be complied
with. What-ever is not expressly or impliedly authorised by the
constituent statute can be said to be prohibited and must be
held to be ultra vires. The contract which is ultra vires is voidab-initio and cannot be ratified. Since a Corporation is Yieither
an agency nor a department of the government, the
requirements of valid government contract as laid down in Art.
299 of the Constitution do not apply to Corporation contracts.
The requirement of a statutory notice of two months as laid
down U/S. 80 C.P.C. before filing a suit against the government
does not apply in case of a suit against a Public Corporation.
(b) Liability in Torts-A Public Corporation can be sued for the
torts committed by its servants provided the act is within the
powers of the Corporation and that it would be actionable if
committed by a private individual. But the Corporation would
not be liable if the act of the servant is ultra vires the powers of
the Corporation or is such that it could under no circumstances
have authorised its servant to commit it. For acts which are
ultra vires, the servant would be personally liable.
InM.C. Mehta Vs. Union of India, A.I.R. 1987, Olean gas had
escaped from Shriram Chemical and Fertilizer Company, Delhi,
causing injury to people. The Supreme Court held that the
liabilities of industries engaged in hazardous or dangerous
activities are absolute even when the injuiy occurs on account
of an accident in such activities. Making the rule of strict liability
320

absolutely strict, the Court observed that an enterprise which is


engaged in hazardous or inherently dangerous industry owes an
absolute liability to the community to conduct its affairs with
the highest standards of safety and to compensate if harm is
caused to any one due to accident.
(c) Liability in Crime-A Public Corporation may also incur
liability for offences committed by its servants in the course of
employment. However, since it is an artificial person having
corporate identity, it cannot be punished with death or
imprisonment. It follows that a Corporation cannot be found
guilty of an offence for which the punishment is death or
imprisonment. A Corporation can also not be held liable for an
offence which can only be committed by a natural person, e.g.,
bigamy. But a Public Corporation can be held vicariously liable
for offences committed by its agents, servants and employees
e.g., libel, fraud, and public nuisance.

Q. 30 (c). Define and discuss the difference between the Public


Corporation and Public Undertaking.

Ans. Definition of Public Corporation-Note: For Ans. See Q. 30


(b) P.141
321

Meaning of Public Undertaking-When trading or social service


functions are carried on by the government through a Public
Corporation, a government department or a government
company, it is called a Public Undertaking, e.g., Railway
Department, State Trading Corporation, State Electricity BoArd.
Structurally, public undertakings can be classified into three
broad categories(i) Public Corporation;
(ii) Departmental Undertakings; and
(iii) Government Companies.
Any one of these organisational forms can be preferred by the
government according to the nature of the enterprise as is
considered convenient in order to undertake and fulfil
multifarious welfare and service commitments. The government
may undertake to accomplish its socioeconomic objectives
through its own departments or through autonomous Public
Corporations or through Government Companies. The choice
between the various alternatives is a matter of policy.
(i) Public Corporations; Statutory Public UndertakingsWherean undertaking is created by a statute, it is known as
Public Corporation. Public enterprises play to-day a pivotal role
in the economy of India. This development has been facilitated
by certain Constitutional provisions and economic policies. With
a view to achieving the object of'Socialist' democratic republic,
Constitutional protection is afforded to "State monopoly".
Under Article 19 (6) the State can carry on any trade or industry
by itself or through a Corporation owned or controlled by it to
the complete or partial exclusion of citizens. The Directive
Principles of State policy contained in Article 39 (b) and (c)
322

enjoined the State to direct its policy towards securing(a) that the ownership and control of material resources of
the Community are so distributed as best to subserve the
common good; and
(b) that the operation of the economic system does not result
in the concentration of wealth and means of production to the
common detriment. The Industrial Policy Resolution of 1948
clearly indicated that the management of State enterprises will
as a rule be through the medium of Public Corporation. All
these factors led the growth of Public Undertakings as an
instrument for the economic structurization of the Country
because in a public body accountability, freedom of action,
public purpose and conscience, corporate spirit and concern for
consumer could be legitimately expected.
(ii) Departmental Undertakings-There is no consistent pattern
visible in the choice of government for the various forms of
organisations. A large number of public enterprises are run by
the departments as well. Railways, Posts and Telegraphs,
Telephones and numerous defence industries are run
departmentally. There is a separate Ministry for Railways. Posts,
Telegraphs and Telephones are under another Ministry.
Defence industries fall under the Ministry of Defence.
(iii) Government
Companies;
Non-Statutory
Public
Undertakings-Apart from government departments and
statutory Public Corporations, another pattern utilized to run
Public Undertakings is that of a government Company. In some
323

situations Government Companies as a mode of organisation of


any activity is preferred to Statutory Corporations, for
companies obviate the-necessity of rushing in a legislative
measure every time a Corporation is to be established. In case
of companies a greater amount of flexibility in action is possible
as the articles of Association of the Company can be easily
amended. Moreover, companies make collaboration and capital
participation more easy.

Difference between Public Corporation & Public Undertakings


Pubic Undertaking
Public Corporation
1. Where an undertaking is 1. Where an undertaking is
created without any statute, it created by a Statute, it is
is known as Public undertaking. known as Public Corporation.
For example Govt. Companies Statutory Corporations have
are
non-statutory
Public definite advantages over the
undertakings registered under, other forms of organizations.
the Companies Act, 1956.
2. A Govt. Company is not a 2. A
public
corporation
'State' within the meaning of created by or under a statute is
Article 12. Employees of a a 'State' within the meaning of
Government Company are riot Article 12 and therefore, is
Government servants within subject to the Writ jurisdiction
the meaning of Article 311.
of the Supreme Court under
Article 32 and of the High
Courts under Article 226.
3. When
registered
a 3. Employees Of a Public
324

government Company, like any


other company, becomes a
legal person with perpetual
succession and common seal.
However,
a
Government
Company differs from other
companies in as much as its
capital is subscribed by the
government and no other
person can purchase its share
except with the permission of
the
government.
It
is
controlled by the government.
4. Public undertaking i.e.,
Govt. Company does not enjoy
the autonomous status. It is
constantly
under
the
interference of the Govt,
regarding its day to day
management
and
administration.
5. A. number of huge projects
are being run as Government
Companies
rather
than
statutory Corporations, e.g.,
Hindustan Steel Ltd; Heavy
Engineering-Corporation;
Mining and Allied Machinery
Corporation; Steel Authority ol

Corporation do not hold a 'Civil


Post' under the union or the
State within the meaning of
Part X!V of the Constitution of
India.

4. Depending
on
the
provisions of the Statute by or
under
which
a
public
Corporation is "created such
Corporation is by and large an
Autonomous
body.
The
Corportion is its own master in
day-to-day management and
administration.
5. Functionally.
Public
Corporations may be classified
into four 'ill-assorted groups(i) Commercial Corporation;
(ii) Development Corporation;
(iii) Social Service Corporation
and
(iv) Financial Corporation.
325

India; Fertilizer CorporationHindustan Antibiotics; Cement


Corporation; State Trading
Corporation of India etc.

Q. 30 (d) State the facts and principles of law laid down in any
ofthe following cases- (i) Hari Shankar Bagla and Others Vs.
State of M. P. A.I.R. 1954, S.C. 465. (ii) Superintendent and
Remembrancer of Legal Affairs Vs. Corporation of Calcutta
A.I.R. 1967 S.C. 997. (iii) Bharat Bank Ltd. Vs. Employees of
Bharat Bank A.I R. 1950, S.C. 188. (iv) A. K. Karipakand others
Vs. Union oflndia and others A.I.R. 1970, S.C. 150. (v) State of
Rajasthan Vs. Mst. Vidyavati A.I.R 1962, S.C. 933.
Ans. (i) Hari Shankar Bagla and Others Vs. State of M. P.
Subject-This case deals with the delegation of legistative powers
specially the permissible limits of such delegation and the
Constitutional validity of Delegated Legislation.
Facts of the Case1. Shri Harishankar Bagla together with his wife Smt. Gomti
Bagla, was arrested by Railway Police at ltarsi Railway Station on
29th Nov. 1948. They were arrested for the violation of certain
Central Acts and order.
2. In their possession was found 'new cotton cloth' weighing
over 6 maunds, which it was alleged, they were transporting
from Bombay to Kanpur without any permit. It was alleged, that
their acts violated the S. 7 of Essential Supplies (Temporary
326

Powers) Act, 1946, read with CI (3) of the Cotton Textile


(Control of Movement) Order, 1948.
3. They were challaned, and after various vicissitudes
through which the chalan passed, the case was withdrawn by
the High Court to itself on 3rd September, 1951, as it involved a
decision of Constitutional issue, viz: the Constitutional validity
of Ss. 3 and 4 of the Essential Supplies Act, 1946.
4.

The relevant Sections provided as follows-

(a) S. 3 (1) empowered the Central Goverment to regulate or


prohibit by an order, the production, manufacture, supply and
distribution of, and the trade and commerce in essential
commodities, so far as it appears to be necessary or expedient,
for maintaining of increasing their supply or securing their
equitable distribution or availability at fair prices.
(b) S. (4) empowered the Central Government to delegate by a
notified order, the powers conferred on it by Section 3 (1) in
relation to "such matters" and subject of "such conditions" as
may be specified in the order. The powers could be delegated
to (i) an officer or authority subordinate to the Central
Goverment or (ii) to the State Government or an officer or
authority subordinate to a State Government.
5. Under the powers conferred by Section 3, the Central
Government promulgated on 10th Sept. 1948 Cotton Textiles
(Control of Movement) Order, 1948. The CI. (2) of S. 3 of the
order banned the movement of any cloth, yarn or apparel
except under and in accordance with327

(a) A general permit notified in the Gazette of India by the


Textile Commissioner, or
(b) A special transport permit issued by the Textile
Commissioner
Decision of Nagpur High Court-By its order dated 15Sept.
1952,the High Court up held the provisions of Sections 3 & 4, as
well as ofthe impugned order as Constitutional. The High Court
also granted leave to appeal to both the appellants and the
respondents. The appellants filed an appeal before the Supreme
Court.

(B) Short Answer Questions


Q. 1. What are the supervisory powers of the High Court over
administrative tribunals U/Art. 227 of the Indian Constitution?
What are the principles enunciated by various High Courts in
the exercise of the powers conferred U/Art. 227?

Ans. Supervisory Powers of High Court Over Administrative


Tribunals.U/Art. 227 of the Constitution, .the High Court is
empowered to exercise judicial superintendence over the
tribunals throughout the territories in relation to which they
exercise their jurisdictions. Art. 227 provides-'Every High Court
shall have superintendence over all Courts and tribunals
throughout the territories in relation to which it exercises
328

jurisdiction".
But this power of superintendence has been excluded from the
tribunals constituted by or under any law relating to Armed
Forces. The term "Tribunal" in Art. 227 means a person or body
of persons, other than a court set up by the state for deciding
the rights between contending parties in accordance with the
rules having the force of law and doing so not by way of taking
executive action but on determining a question. In a Calcutta
case P.C. Guha Vs. B.A. Basil, it was pointed out that the word
"Tribunal"1 meant all agencies, whether courts or not
performing the duty of deciding disputed questions of right
between parties on behalf of and under the sanction of the
state and in accordance with state-made laws.
The supervisory powers of the High Court over tribunals are
very broad. It was not confined to administrative
superintendence
only
but
includes
even
judicial
superintendence. Vide: Hari Vishnu Vs. Ahmatl Ishaq, AIR 1955
S.C. 233. As a matter of fact, the powers conferred under this
Article are broader than the powers conferred U/Art. 226.
Through its powers to issue certiorari and prohibition U/S. 226,
a High Court can annul the decision of a Tribunal while U/Art.
227 it can do that and something more, it can issue further
directions in the matter
In Waryam Singh Vs. Amar Nath, AIR 1954 S.C. 215, it was held
that the power of superintendence is to be exercised most
sparingly and only to keep the courts and tribunals within the
bounds of their authority and jurisdiction and not for correcting
329

mere errors. When a tribunal seeks to act against justice, the


High Court will interfere U/Article 227. In Hurl Vishnu Vs.
Ahmad Ishaq, AIR 1955 S.C. 233, it was held by the Supreme
Court that an Election Tribunal is subject to the High Courts
superintendence and if the High Court refuses to do so. the
Supreme Court may itself, or on an appeal from High Court's
order, exercise the same powers in a suitable case".
The High Court does not interfere unless and until there is any
grave miscarriage of justice or flagrant violation of law. Thus, in
the well-known case of D.N. Banerjee Vs. P. R. Mukherjee AIR
1953 S.C. 58 the Industrial Tribunal decided that suspension and
punishment of some employees by the Municipality of Budge
Budge, was an act of victimization. The Municipality came to the
High Court with a petition, but the petition was dismissed.
When the appeal came to Supreme Court it was held that
whether on facts of a particular case the dismissal of an
employee was wrongful or justified, was a question primarily for
the tribunal to decide and unless there was any grave
miscarriage of justice or flagrant violation of law, the High Court
could not interfere U/Art. 227.
Principles Laid Down by Various High Courts for the Exercise of
Powers Conferred U/Art. 227It is to be noted that the
following principles have been laid down for the exercise of the
powers conferred on High Court U/Art. 2271. The power under the Article can be exercised even in those
cases in which no appeal or revision lies in the High Court, Vide:
Ram Rup Vs. Vishwanath, AIR 1958 AUd. 459. .
330

2. The power should not be exercised if any other remedy is


available to the aggrieved party, even though the pursuing of
that remedy may cause some inconvenience or delay, Ram Rup
Vs. Vishwanath AIR 1958 AUd. 459.
3. The High Court has been vested with unlimited power to
interfere in cases where wrong decision has been arrived at by
the tribunal it is only, according to the Supreme Court in D.N.
Benerjee Vs. P.R. Mukherjee, AIR 1953 SC 58, in cases of grave
miscarriage of justice or flagrant violation of law, that the High
Court will interfere. Therefore, in Ram Roop Vs. Vishwanath, AIR
1958 Alld. 459, it was held by the Allahabad High Court that the
power, therefore, is to be used sparingly and only in exceptional
cases.
4. In exercising the supervisory powers the High Court does
not act as an appellate tribunal. It will not review or re-weight
the evidence upon which tribunal based its judgment, nor will
the High Court correct the error of law. The Supreme Court has
held that the High Court could not interfere with the decision of
the tribunal. In a Madras case, it was laid down that a mere
wrong decision with nothing more is not enough to attract the
jurisdiction U/Art. 227.
5. In Nagendra Nath Vs. Commissioner, Hill Division, AIR 1958
S.C. 398, it was observed by the Supreme Court that the power
of interference, U/Art. 227 is limited for seeing that the tribunal
functions within the limits of its authority.
The principal grounds for interference, therefore, would be as
331

follows(a) Want or excess of jurisdiction,


(b) Failure to exercise jurisdiction, and
(c) Violation'of procedure or disregard of principles of natural
justice.

Q. 2. Whether "Lok Pal & Lokayuktas Act is passed in India on


the lines of Ombudsman of other countries? If so, with what
objects j. and with effect of which date? Explain the
establishment of Lok Pal in India.

Ans. Whether "Lok Pal" & Lokayuktas Act is Passed in India?


It is to be noted that the "Lokpal" & Lokayuktas" Act, 2013 has
been passed by the Parliament of India. It is numbered as Act.
No.l of 2014 and is assented by the President of India on 1 -1 2014. This Act is passed by the Parliament of India on the lines
of the ombudsman of other countries like in New Zealand,
England, Australia and Norway. For Reference PI. See Q. No. 28
at P. 120 of this book.
Object, Extent, Application and Commencement of the Lok Pal
& Lokayuktas Act, 2013 is an Act to provide for the
establishment of a body of Lokpal for the Union and Lokayuktas
for States to inquire into allegations of corruption against
certain public functionaries and for matters connected
therewith or incidental thereto.
Whereas the Constitution of India established a Democratic
332

Republic to ensure justice for all;


And whereas India has ratified the United Nations Convention
Against Corruption;
And whereas the Government's commitment to clean and
responsive governance has to be reflected in effective bodies to
contain and punish acts of corruption;
Now, therefore, it is expedient to enact a law, for more
effective implementation of the said Convention and to provide
for prompt and fair investigation and prosecution in cases of
corruption.
1. This Act may be called the Lokpal and Lokayuktas Act, 2013.
2. It extends to the whole of India.
3. It shall apply to public servants in and outside India.
4. It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint.
. Establishment of LokpalAccording to S. 3(1) of the Act on
and from the commencement of this Act, there shall be
established, for the purpose of this Act a body to be called the
"Lokpal".
(2) The Lokpal shall consist of(a) a Chairperson, who is or has been a Chief Justice of India or
is or has been judge of the Supreme Court or an eminent person
who fulfils the eligibility specified in clause (b) of sub-S. (3); and
(b) such number of Members, not exceeding eight out of
whom fifty percent 50% shall be judicial Members:
Provided that not less than fifty percent of the
Members of the Lokpal shall be from amongst the persons
belonging to the Scheduled Castes, the Scheduled Tribes, Other
333

Backward Classes. Minorities and women.


j
(3) A person shall be eligible to be appointed
(a) as a Judicial Member if he is or has been a Judge of the
Supreme Court or is or has been a Chief Justice of a High Conn,
(b) as a Member other than a Judicial Member, if he is a person
of impeccable integrity and outstanding ability having special
knowledge and expertise of not less than twenty-five years in
the matters relating to anti-corruption policy, public
administration, vigilance, finance including insurance and
banking, law and management.
(4) The Chairperson or a Member shall not be
(1) A member of Parliament or a member of the Legislature of
any State or Union territory;
(ii) A person convicted of any offence involving moral
turpitude;
(iii) A person of less than forty-five years of age, on the date of
assuming office as the Chairperson or Member, as the case may
be;
(iv) A member of any Panchayat or Municipality;
(v) A person who has been removed or dismissed from the
service of the Union or a State,
and shall not hold any office of trust or profit (other than his
office as the Chairperson or a Member) or be connected
affiliated with any political party or carry on any business or
practice any profession and, accordingly, before he enters upon
his office, a person appointed as the Chairperson or a Member,
as the case may be, shall, if(a) He holds any office of trust or profit, resign from such
334

office; or
(b) He is carrying on any business, sever his connection with
the conduct and management of such business; or
(c) He is practicing any profession, cease to practice such
profession.
Appointment
of
Chairperson
and
Members
on
Recommendations of Selection CommitteeAccording to S.
4(1) of the Act, the Chairperson and Members shall be
appointed by the President after obtaining the
recommendations of a Selection Committee consisting of(a) The Prime Minister-Chairperson;
(b) The Speaker of the House of the People-Member;
(c) The Leader of opposition in the House of the PeopleMember;
(d) The Chief Justice of India or a Judge of the Supreme Court
nominated by him-Member;
(e) One eminent jurist, as recommended by the chairperson
and members referred to in clauses (a) to (d) above, to be
nominated by the President-Member.
(2) No appointment of a Chairperson or a Member shall be
invalid merely by reason of any vacancy in the Selection
Committee.
(3) The Selection Committee shall for the purposes of selecting
the Chairperson and Members of the Lokpal and for preparing a
panel of persons to be considered for appointment as such,
constitute a Search Committee consisting of at least seven
persons of standing and having special knowledge and expertise
335

in the matters relating to anti-corruption policy, public


administration, vigilance, policy making, finance including
insurance and banking, law and management or in any other
matter which, in the opinion of the Selection Committee, may
be useful in making the selection of the Chairperson and
Members of the Lokpal:
Provided that not less than fifty percent of the members of the
Search Committee shall be from amongst the persons belonging
to the Scheduled ( Castes, the Scheduled Tribes, Other
Backward Classes, Minorities and women:
Provided further that the Selection Committee may also
consider any person other than the persons recommended by
the Search Committee.
(4) The Selection Committee shall regulate its own procedure,
in a transparent manner for selecting the Chairperson and
Members of the Lokpal.
(5) The term of the Search Committee referred to in sub-S. (3),
the fees and allowances payable to its members and the
manner of selection of panel of names shall be such as may be
prescribed.

Q. 3. What procedure is to be followed by Lokpal in respect of


preliminary inquiry and investigation, under the Lokpal &
336

Lokayuktas Act, 2013?

Ans. Procedure to be followed by the Lokpal in Respect of


Preliminary Inquiry and InvestigationChapter VII of The
Lokpal & Lokayuktas Act, 2013 deals with the procedure in
respect of preliminary inquiry and investigation. Its relevant
provisions are contained U/S. 20-25 of the Act which are as
follows1. Provisions Relating to Complaints and Preliminary Inquiry
and InvestigationAccording to S. 20(1) of the Act, the Lokpal
on receipt of a complaint, if it decides to proceed further, may
order(a) Preliminary inquiry against any public servant by its
Inquiry Wing or any agency (including the Delhi Special Police
Establishment) to ascertain whether there exists a prima facie
case for proceeding in the matter; or
(b) Investigation by any agency (including the Delhi Special
Police Establishment) where there exists a prima facie case:
Provided that the Lokpal shall if it has decided to proceed with
the preliminary inquiry, by a general or special order, refer the
complaints or a category of complaints or a complaint received
by it in respect of public servants belonging to Group A or
Group B or Group C or Group I) to 11 it-Central Vigilance
Commission constituted under sub-S. (1) of S. ol the Central
337

Vigilance Commission Act, 2003.


Provided further that the Central Vigilance Commission in
respect of complaints referred to it under the first proviso, after
making preliminary inquiry in respect of public servants
belonging to Group A and ( noun II shall submit its report to the
Lokpal in accordance with the provisions contained in sub-S. (2)
and (4) and in case of public servants belongings to" Group C
and Group D, the Commission shall proceed in accordance with
the provisions of the Central Vigilance Commission Act, 200.1
Provided also that before ordering an investigation undo . I.m..
do the Lokpal shall call for the explanation of the public servant
so as to in determine whether there exists a prima facie case for
investigation.
Provided also that seeking of explanation from the public
servant before an investigation shall not interfere with the
search and seizure, if any, required to be undertaken by any
agency (including the Delhi Special Police Establishment) under
this Act.
(2) During the preliminary inquiry referred to in sub-S. (1), the
Inquiry Wing or any agency (including the Delhi Special Police
Establishment) shall conduct a preliminary inquiry and on the
basis of material, information and documents collected seek the
comments on the allegations made in the complaint from the
public servant and the competent authority and-after obtaining
the comments of the concerned public servant and the
competent authority, submit, within sixty days from the date of
receipt of the reference, a report to the Lokpal.
338

(3) A bench consisting of not less than three Members of the


Lokpal shall consider every report received under sub-S. (2).
from the Inquiry Wing or any agency (including the Delhi Special
Police Establishment), and after giving an opportunity of being
heard to the public servant, decide whether there exists a prima
facie case, and to proceed with one or more of the following
actions, namely(a) Investigation by any agency or the Delhi Special Police
Establishment, as the case may be;
(b) Initiation of the departmental proceedings or any other
appropriate action against the concerned public servants by the
competent authority;
(c) Closure of the proceedings against the public servant and
to proceed against the complainant U/S. 46.
(4) Every preliminary inquiry referred to in sub-S. (1) shall
ordinarily be completed within a period of ninety days and for
reasons to be recorded in writing, within a further period of
ninety days from the data of receipt of the complaint.
(5) In case the Lokpal decides to proceed to investigate into
the complaint, it shall direct any agency (including the Delhi
Special Police Establishment) to carry out the investigation as
expeditiously as possible and complete the investigation within
a period of six months from the date of its order:
Provided that the Lokpal may extend the said period by a
further period not exceeding of six months at a time for the
reasons to be recorded in writing.
(6) Notwithstanding anything contained in S. 173 of the
Cr.P.C., any agency (including the Delhi Special Police
Establishment) shall, in respect of cases referred to it by the
Lokpal, submit the investigation report under that section to the
339

court having jurisdiction and forward a copy thereof to the


Lokpal.
(7) A bench consisting of not less than three Members of the
Lokpal shall consider every report received by it under sub-S. (6)
from any agency (including the Delhi special Police
Establishment) and after
obtaining the comments of the competent authority and the
public servant may(a) Grant sanction to its Prosecution wing or investigating
agency to file charge-sheet or direct the closure of report
before the Special Court against the public servant;
(b) Direct the competent authority to initiate the
departmental proceedings or any other appropriate action
against the concerned public servant.
(8) The Lokpal may, after taking a decision under sub-S. (7) on
the filing of the charge-sheet, direct its Prosecution wing or any
investigating agency (including the Delhi Special Police
Establishment) to initiate prosecution in the Special Court in
respect of the cases investigated by the agency.
(9) The Lokpal may, during the preliminary inquiry or the
investigation, as the case may, be, pass appropriate orders for
the safe custody of the documents relevant to the preliminary
inquiry or, as the case may be, investigation as it deems fit.
(10) The website of the Lokpal shall, from time to time and in
such manner as may be specified by regulations, display to the
public, the status of number of complaints pending before it or
disposed of by it.
(11) The Lokpal may retain the original records and evidences
which are likely to be required in the process of preliminary
inquiry of investigation or conduct of a case by it or by the
340

Special Court.
(12) Save as otherwise provided, the manner and procedure oi
conducting a preliminary inquiry or investigation (including such
material and documents to be made available to the public
servant) under this Act, shall be such as may be specified by
regulations.
2. Persons Likely to be Prejudicially Affected to bo Heard
According to S. 21(1) of the Act, if, at any stage <>! the
proceeding, the Lokpal(a) Considers it necessary to inquire into the conduct of any
person on other than the accused; or
(b) Is of opinion that the reputation of any person other than
an accused is likely to be prejudicially affected by the
preliminary inquiry, the Lokpal shall give to that person a
reasonable opportunity of being heard in the preliminary
inquiry and to produce evidence in lie. defence, consistent with
the principles of natural justice.
3. Lokpal may Require any Public Servant or any < )ihn
IVrtous to Furnish Information, etcAccording to S. 22(1) of
the Act, subject to the provisions of this Act, for the purpose of
any preliminary inquiry or investigation, the Lokpal or the
investigating agency, as the case may be may require any public
servant or any other person who, In its opinion, is able to
furnish information or produce documents relevant to such
preliminary inquiry or investigation, to furnish any such
information or produce any such document.
341

4. Power of Lokpal to Grant Sanction for Initiating


ProsecutionS. 23(1) of the Act, notwithstanding anything
contained in S. 197 of Cr. P.C., 1973 or S. 6A of the Delhi Special
Police Establishment Act, 1946 or S. 19 of the Prevention of
Corruption Act, 1988, the Lokpal shall have the power to grant
sanction for prosecution under clause (a) of sub-S. (7) of S. 20.
(2) No prosecution under sub-S. (1) shall be initiated against
any public servant accused of any offence alleged to have been
committed by him while acting or purporting to act in the
discharge of his official duty, and no court shall take cognizance
of such offence except with the previous sanction of the Lokpal.
(3) Nothing contained in sub-S. (1) and (2) shall apply in
respect of the persons holding office in pursuance of the
provisions of the Constitution and in respect of which a
procedure for removal of such person has been specified
therein.
(4) The provisions contained in sub-S. (1), (2) and (3) shall be
without prejudice to the generality of the provisions contained
in Art. 311 and sub-clause (c) of clause (3) of Art. 320 of the
Constitution.
5. Action on Investigation Against Public Servant being Prime
Minister, Ministers or Members of ParliamentAccording to S.
24(1) of the Act, where, after the conclusion of the
investigation, the findings of the Lokpal disclose the commission
of an offence under the Prevention of Corruption Act, 1988 by a
public servant referred to in clause (a) or clause (b) or clause (b)
or clause (c) of sub-S. (1) of S. 14, the Lokpal may file a case in
the Special Court and shall send a copy of the report together
with its findings to the competent authority.
342

Q. 4. What are the powers of Lokpal of union of India? Explain


thein briefly.

Ans. Powers of Lokpal of Union of IndiaPowers of Lokpal of


India are contained U/S. 25 to 34 of Chapter VIII of the Lokpal &
Lokyuktas Act, 1913 which are as follows1. Supervisory Powers of Lokpal.
2. Power of Search and Seizure.
3. Power of Civil Court in Certain Cases.
4. Power to Utilise Services of Officers of Central or State
Government.
5. Power of Provisional Attachment of Assets:
6. Power of Confirmation of Attachment of Assets.
7. Power of Confiscation of Assets, Proceeds, Receipts and
Benefits Arisen or Procured by mean of Corruption in Special
Circumstances.
8. Power to Recommend Transfer or Suspension of Public
Servant Connected with Allegation of Corruption.
9. Power to give Directions to Prevent Destruction of Records
During Preliminary Inquiry.
10. Power to Delegate.

343