Administrative Law

Chanderprabhu Jain College of Higher Studies
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School of Law
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(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
Class : B.A. LLB /BBA LLB
Paper Code : 208
Subject : Administrative Law
UNIT I
Nature, Scope of development administrative law

Administrative law deals with the powers and functions of the administrative
authorities, the manner in which the powers are to be exercised and remedies
which are available to the aggrieved persons when those powers are abused by
these authorities
According to Ivor Jennings "administrative law is the law relating to the
administrative authorities".
This is the most widely accepted definition, but there are two difficulties in this
definition.
(1) It is very wide definition, for the law which determines the power and functions
of administrative authorities may also deal with the substantive aspects of such
powers. For example: - Legislation relation to public health services, houses, town
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and country planning etc.. But these are not included within the scope and ambit of
administrative law, and
(2) It does not distinguish administrative law from constitution law. It is impossible
to attempt any precise definition of administrative law which can cover the entire
range of administrative process. The American approach to administrative law is
denoted by the definition by the definition of administrative law as propounded by
Davis.
According to K. C. Davis, "Administrative law as the law concerns the powers and
procedures of administrative agencies, including especially the law governing
judicial review of administrative action".
According to Professor Wade any attempt to define administrative law will create a
number of difficulties. But if the powers and authorities of the state are classified
as legislative, administrative and judicial, then administrative law might be said
"the law which concerns administrative authorities as opposed to the others".
There are some difficulties with this definition also. It fails to distinguish
administrative law from constitutional law Like Jennings definition mentioned
above; this is also very wide definition. It includes the entire legal field except the
legislature and the Judiciary. It also
includes the law of local government. It is also said that it is not possible to divide
completely and definitely the functions of legislative, executive and judiciary.
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It is very difficult to say precisely where legislation ends and administrative

begins. Though enacting a law is functioning of the legislature the administrative
authorities, legislate under the powers delegated to them by the legislature and this
delegated legislation is certainly a part of administrative law.
Scope of Administrative law

The boundaries of administrative law extend only when administrative agencies
and public officials exercise statutory or public powers, or when performing public
duties. In both civil and common-law countries, these types of functions are
sometimes called ―public law functions to distinguish them from ―private law
functions. The former govern the relationship between the state and the individual,
whereas the later governs the relationship between individual citizens and some
forms of relationships with the state, like relationship based on government
contract.
For instance, if a citizen works in a state owned factory and is dismissed, he or she
would sue as a ―private law function. Whereas, if he is a civil servant, he or she
would sue as a ― public law function. Similarly, if residents of the surrounding
community were concerned about a decision to enlarge the state- owned factory
because of environmental pollution, the legality of the decision could be reviewed
by the courts as a ―public law function. It is also to be noted that a contract
between an individual or business organization with a certain administrative
agency is a private law function governed by rules of contract applicable to any
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individual – individual relationship. However, if it is an administrative contract it

is subject to different rules.
So we can see that the rules and principles of administrative law are applicable in a
relationship between citizens and the state; they do not extend to cases where the
nature of the relationship is characterized by a private law function.
Many definitions and approaches to administrative law are limited to procedural
aspects of the subject. The focus of administrative law is mainly on the manner and
procedure of exercising power granted to administrative agencies by the
legislature.
According to Fox the trend and interaction between substance and procedure as is
the unifying force of the administrative process – in dramatic contrast to the wide
variety of substantive problems with which agencies deal- that has persuaded most
administrative law professors to concentrate on agency procedure rather than
agency substance. So, to a wider extent, the study of administrative law has been
limited to analyzing the manner in which matters move through an agency, rather
than the wisdom of the matters themselves.
With respect to judicial review, the basic question asked is not whether a particular
decision is ―right, or whether the judge, or a Minister, or officials have come to a
different decision. The questions are what is the legal limit of power or reasonable
limit of discretion the law has conferred on the official? That power been
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exceeded, or otherwise unlawfully exercised? Hence, administrative law is not

concerned with the merits of the decision, but with the decision making process.
Development of Administrative Law
Administrative law existed in India even in ancient times. Under the Mauryas and
Guptas, several centuries before christ, there was well organised and centralised
Administration in India.
The rule of "Dharma" was observed by kings and Administrators and nobody
claimed any exemption from it. The basic principle of natural justice and fair play
were followed by the kings and officers as the administration could be run only on
those principles accepted by Dharma, which was even a wider word than "Rule of
Law" or "Due process of Law", Yet, there was no Administrative law is existence
in the sense in which we study it today.
With the establishment of East India company and event of the British Rule in
India. The powers of the government had increased. Many Acts, statutes and
Legislation were passed by the British government regulating public safety, health,
morality transport and labour relations. Practice of granting Administrative licence
began with the State Carriage Act 1861. The first public corporation was
established under the Bombay Port Trust Act 1879. Delegated legislation was
accepted by the Northern India Canal and Drainage Act, 1873 and Opium Act
1878 proper and effective steps were taken to regulate the trade and traffic in
explosives by the Indian Explosives by the Indian Explosives Act 1884.
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In many statutes, provisions were made with regard to holding of permits and
licences and for the settlement of disputes by the Administrative authorities and
Tribunals.
During the Second World War, the executive powers tremendously increased
Defence of India Act, 1939 and the rules made there under conferred ample powers
on the property of an individual with little or no judicial control over them, In
addition to this, the government issued many orders and ordinances, covering
several matters by way of Administrative instructions. Since independence, the
activities and the functions of the government have further increased.
Under the Industrial Disputes Act 1947, the Minimum Wages Act 1948 important
social security measures have been taken for those employed in Industries. The
philosophy of a welfare state has been specifically embodied in the constitution of
India. In the constitution itself, the provisions are made to secure to all citizens
social, economic and political justice, equality of status and opportunity. The
ownership and control of material resources of the society should be so distributed
as best to sub serve the common good. The operation of the economic system
should not result in the concentration of all these objects. The State is given power
to impose reasonable restrictions even on the Fundamental Rights guaranteed by
the constitution. In Fact, to secure those objects, several steps have been taken by
the parliament by passing many Acts, for example. The Industrial (Development
and Regulation) Act 1951, the Requisitioning and Acquisition of Immovable
Property Act 1952, the Essential Commodities Act, 1955. The Companies Act
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1956, the Banking Companies (Acquisition and Transfer of undertakings) Act,

1969. The Maternity Benefits Act, 1961, The Payment of Bonus Act 1965, The
Equal Remuneration Act 1976, The Urban Land (ceiling and Regulation) Act
1976, The Beedi Worker's Welfare Fund Act, 1976 etc.
Even the judiciary has started taking into consideration the objects and ideals
social welfare while interpreting all these Acts and the provisions of the
Constitution. In the case of Vellunkunnel v. Reserve Bank of India, the Supreme
Court held that under the Banking Companies Act, 1949 the Reserve Bank was the
sole judge to decide whether the affairs of a Banking company where being
conducted in a manner prejudicial to the depositors, interest and the court had no
option but to pass an order of winding up as prayed for by the Reserve Bank.
Also, in the case of State of Andhra Pradesh v. C. V. Rao, the Supreme Court
dealing with departmental inquiry, held that the jurisdiction to issue a writ of
certiorari under Article 226 is supervisory in nature. In is not an appellate court and
if there is some evidence or record on which the tribunal had passed the order, the
said findings cannot be challenged on the ground the evidence for the same is
insufficient or inadequate. The adequacy or sufficiency of evidence is within the
exclusive jurisdiction of the tribunal.
The Apex Court in Shrivastava v. Suresh Singh observed that in matters relating to
questions regarding adequacy or sufficiently of training the expert opinion of
public service commission would be generally accepted by the court.
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The Supreme Court in State of Gujrat v. M. I. HaiderBux held that under the
provisions of the Land Acquisition Act, 1994, Ordinarily, government is the best
authority to decide whether a
particular purpose is a public purpose and whether the land can be acquired for the
purpose or not. Hence, on the one hand, the activities and powers of the
government and administrative authorities have increased and on the other hand,
there is great need for the enforcement of the rule of law and judicial review over
these powers, so that the citizens should be free to enjoy the liberty guaranteed to
them by the constitution. For that purpose, provisions are made in the statutes
giving right of appeal, revision etc. and at the same time extra-ordinary remedies
are available to them under Article 32, 226 and 227 of the constitution of India.
The Principle of judicial review is also accepted in our constitution, and the order
passed by the administrative authorities can be quashed and set aside if they are
malafied or ultravires the Act or the provisions of the constitution. And if the rules,
regulations or orders passed by these authorities are not within their powers, they
can be declared ultravires, unconstitutional, illegal or void.
Rule of law
Rule of law is classical principle of administrative law. As a matter of fact this
principle was one of the principles that acted as impediment development of
Administrative Law principles. The irony further is that the rule of law is now an
important part of modern Administrative Law. Whereas the rule of law is still the
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one of the very important principles regulating in common law countries and
common law derived countries modern laws has denied some of the important
parts of rule of law as proposed by Dicey at the start of 19th Century.
Dicey Rule of Law: The concept of rule of law backs to the time of Aristotle.
Aristotle ruled out the concept of rule under discretion by all means and tried to
convey his followers that given the choice it is always rule of law that scores over
rule of discretion.
In Modern times the rule of law was propounded by the Albert Dicey, a British
jurist and Philosopher. He gave following three postulates of rule of law: 1.
Everyone is equal before the law. 2. Sanctions have to be backed by law. 3. Courts
are the ultimate body and supremacy of court is ambivalent in civilized society.
He was firm proponent of the concept and very influential thinker of his times.
Though the first two principles are still in almost every legal system of world, the
third principle was protested many of jurists of that time. The Dicey in particular
opposed the principle of French system of Droit Administratif. England at that time
was in fact propounding some quasi legislative and quasi judicial processes which
were taken cognizance of English thinkers of that time; still the whole common
law system of country was blindfolded with the Dicey's philosophy of “rule of
law.”
Dicey's Rule of Law and Modern Administrative Law: Dicey's view and
proposition of rule of law has succeeded in part and wasn’t sustainable on other.
Most of the modern legal system implements the principles of judicial review and
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similar principles of proportionality and legitimate expectations. Dicey's views on

written and unwritten constitutions are subject to much debate and discussion.
What can be said is that some written constitutions (e.g. the U.S. Constitution)
have been quite successful at providing a framework within which individual rights
are protected while others (e.g. some of the Soviet blocks constitutions) have been
near total failures.
The modern administrative law is fine mixture of Droit Administratif, the French
law system and Dicey rule of law. The sophisticated combination of the two
principles has given rise to powerful and vast body of executive. In fact the
development of modern Administrative law is consequence of development of
administration and its side effects.
A V Dicey stated three principles to the term 'Rule of Law'.
1. Supremacy of Law 2. Equality before Law 3. Predominance of of Legal spirit
• The Rule of Law impacted the Administrative Law of England while

the Doctrine of Separation of Powers impacted the Administrative Law of the
Untied States.
Supremacy of Law
• 'Supremacy of Law' is the central and most characteristic feature of Common

Law.
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• Law is the absolute supreme and predominant as opposed to influence of

arbitrary power or discretionary power.
• English men are ruled by the Rule of Law and law alone.
• A man can be punished by rule of law, and by nothing else.
• Wade: Government is a subject of the Rule of Law, rather than the law being a
subject of the Government.
Equality before Law
• There must be equality before law or equal subjection of all classes to the
ordinary law.
• All people should be subject to one and the same law.
• There is no need for extraordinary tribunals or special courts to deal with cases
of Government and its servants (such as the one seen in Droit Administratif).
• Of course, Dicey accepted that administrative authorities are exercising
'judicial' functions though they are not 'courts'.
• Lord Denning: "Our English law does not allow a public officer to shelter
behind a driot administratif.
Predominance of of Legal spirit
• Rights (such as right to personal liberty, freedom from arrest etc.) are the result
of judicial decisions in England.
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• The rights are a result of court judgements rather than from being enshrined in
the Constitution.
• The Constitution is a consequence (and not the source) of the rights of the
individuals.
• Thus, Courts are the guarantors of the liberty
• Rights would be secured more adequately if they were enforceable in courts
rather than just being written in the Constitutional document.
• Mere incorporation in a written constitution is of no use in the absence of
effective remedies of protection and enforcement.
Advantages of Dicey thesis
• Helped to make administrative authorities confine to their limits.

• Became a yard stick to test administrative actions.
• Helped for the recognition and the growth of the concept of administrative law.
Disadvantages of Dicey thesis
• Dicey thesis was not completely accepted even in his era.

• Even at this time, there was a long list of statutes which permitted the exercise
of discretionary powers of the Crown which could not be called to the Court.
• Dicey instead of not just disallowing arbitrary powers has also insisted that
administrative authorities should not be given discretionary powers.
• He failed to distinguish between 'arbitrary powers' to 'discretionary powers'.
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• He misunderstood the real nature of droit administratif which was successful in

France.
Doctrine of Separation of Powers
“Power corrupts and absolute Power tends to corrupt absolutely.”

The separation of powers is based on the principle of trias politica. The Doctrine
of Separation of Power is the forerunner to all the constitutions of the world, which
came into existence since the days of the “Magna Carta”. Though Montesquieu
was under the erroneous impression that the foundations of the British constitution
lay in the principle of Separation of Power, it found its genesis in the American
Constitution. Montesquieu had a feeling that it would be a panacea to good
governance but it had its own drawbacks. A complete Separation of power without
adequate checks and balances would have nullified any constitution. It was only
with this in mind the founding fathers of various constitutions have accepted this
theory with modifications to make it relevant to the changing times.
The Doctrine of “Separation of Powers”, a vintage product of scientific political

philosophy is closely connected with the concept of “judicial activism”.
“Separation of Powers” is embedded in the Indian Constitutional set up as one of
its basic features. In India the fountain-head of power is the Constitution. The
sovereign power has been distributed among the three-wings:
-Legislature –Executive -Judiciary
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The doctrine of separation of powers envisages a tripartite system. Powers are

delegated by the Constitution to he three organs, and delineating the jurisdiction of
each.
The position in India is that 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
and as such dropped. Apart from the directive principles laid down in Article 50
which enjoins separation of judiciary from the executive, the constitutional scheme
does not embody any formalistic and dogmatic division of powers.
Historical Background
The tripartite model of governance has its origin in Ancient Greece and Rome.
Though the doctrine is traceable to Aristotle but the writings of Locke and
Montesquieu gave it a base on which modern attempts to distinguish between
legislative, executive and judicial power is grounded.
The doctrine may be traced to ancient and medieval theories of mixed government,
which argued that the processes of government should involve the different
elements in society such as monarchic, aristocratic, and democratic interests. The
first modern formulation of the doctrine was that of the French writer Montesquieu
in De l’esprit des lois (1748), although the English philosopher John Locke had
earlier argued that legislative power should be divided between king and
Parliament.
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It was Montesquieu who for the first time gave it a systematic and scientific
formulation in his book ‘Esprit des Lois (The Spirit of the laws) published in the
year 1748. Locke and Montesquieu derived the contents of this doctrine from the
developments in the British constitutional history of the 18th Century. In England
after a long war between the Parliament and the King, they saw triumph of
Parliament in 1688, which gave Parliament legislative supremacy culminating in
the passage of Bill of Rights. This led ultimately to a recognition by the King of
legislative and tax powers of the Parliament and the judicial powers of the courts.
At that time, the King exercised executive powers, Parliament exercised legislative
powers and the courts exercised judicial powers, though later on England did not
stick to this structural classification of functions and changed to the parliamentary
form of government.
After the end of the war of independence in America by 1787 the founding fathers
of the American constitution drafted the constitution of America and in that itself
they inserted the Doctrine of separation of power and by this America became the
first nation to implement the Doctrine of separation of power throughout the world.
The constituent Assembly of France in 1789 was of the view that “there would be
nothing like a Constitution in the country where the doctrine of separation of
power is not accepted”. In France, where the doctrine was preached with great
force by Montesquieu, it was held by the more moderate parties in the French
Revolution. However the Jacobins, Napoleon I and Napoleon III discarded the
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above theory for they believed in the concentration of power. But it again found its
place in the French Constitution of 1871.
Later Rousseau also supported the said theory propounded by Montesquieu.

England follows the parliamentary form of government where the crown is only a
titular head. The mere existence of the cabinet system negates the doctrine of
separation of power in England as the executive represented by the cabinet remains
in power at the sweet will of the parliament.
In India under the Indian constitution there is an express provision under article 50
of the constitution which clearly states that the state should take necessary steps to
separate judiciary from the executive i.e. independence of judiciary should be
maintained.
Montesquieu’s Theory
According to this theory, powers are of three kinds: Legislative, executive and
judicial and that each of these powers should be vested in a separate and distinct
organ, for if all these powers, or any two of them, are united in the same organ or
individual, there can be no liberty. If, for instance, legislative and executive powers
unite, there is apprehension that the organ concerned may enact tyrannical laws
and execute them in a tyrannical manner. Again, there can be no liberty if the
judicial power be not separated from the legislative and the executive. Where it
joined the legislative, the life and liberty of the subject would be exposed to
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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.
Writing in 1748, Montesquieu said
“When the legislative and the executive powers are united in the same person or in
the same body of magistrates, there can be no liberty, because apprehensions may
arise, lest the same monarch or senate should exact tyrannical laws, to execute
them in a tyrannical manner. Again there is no liberty if the judicial power be not
separated from the legislative and the executive. Where it joined with the
legislative, the life and the liberty of the subject would be exposed to arbitrary
control; for the judge would be then a legislator. Where it joined to the executive
power, the judge might behave with violence and oppression.
There would be an end of everything, where the same man or the same body,
whether of nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions and of trying the causes of
individuals.”
Relationship between Constitutional Law and Administrative Law
Since the English Constitution is unwritten, the impact of constitutional law upon
administrative law in England is insignificant and blurred. As Dicey observes, the
rules which in other countries form part of a constitutional code are the result of
the ordinary law of the land in England. As a result, whatever control the
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administrative authorities can be subjected to, if any, must be deduced from the
ordinary law, as contained in statutes and judicial decisions. But, in countries
having written constitutions, there is an additional source of control over
administrative action. In these countries there are two sources or modes of
exercising judicial control over the administrative agencies – constitutional and
non-constitutional. The written constitution imposes limitations upon all organs of
the body politic. Therefore, while all authors attempt to distinguish the scope of
administrative law from that of constitutional law, they cannot afford to forget not
to mention that in a country having written constitution with judicial review, it is
not possible to dissociate the two completely.
The acts of the executive or the administration are protected in India in various
ways. The legislative acts of the administration, i.e. statutory instruments (or
subordinate legislation) are expressly brought within the fold of Article 13 of the
Constitution, by defining “law" as including “order, bye-law, rule, regulation,
notification" or anything “having the force of law". As in all common law
countries, a delegated legislation can be challenged as invalid not only on the
ground of being ultra vires the statute which confers power to make it, but also on
the additional ground that it contravenes any of the fundamental rights guaranteed
by Part III of the Constitution.
A non-legislative and a purely administrative action having no statutory basis will

be void if it breaches any of those fundamental rights which set up limitations
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against any State action. Thus a non-statutory administrative act may be void if it
violates Article 14, guaranteeing equal protection ; Article 29 or Article 30—
guaranteeing minority rights; Article 19—guaranteeing freedom of speech,
association, etc. ; and Article 16—guaranteeing equality of opportunity in
employment . Thus the court would strike down any administrative instruction or
policy, notwithstanding its temporary nature, if it operates as discriminatory, so as
to violate any fundamental right of the person or persons discriminated against.
Non-statutory administrative action will also be void if its result affects a
fundamental right adversely where the Constitution provides that it can be done
only by making a law. The most significant examples of such a case would be
actions affecting Article 19, 21 or 300-A.
An administrative act, whether statutory or non-statutory, will be void if it

contravenes any of the mandatory and justiciable provisions of the Constitution,
falling even outside the realm of fundamental rights – like Articles 265, 301, 311
and 314. In cases of statutory administrative actions, there is an additional
constitutional ground upon which its validity may be challenged, namely, that the
statute, under which the administrative order has been made, is itself
unconstitutional.19 Where the impugned order is quasi-judicial, similarly, it may
be challenged on the grounds, inter alia,that the order is unconstitutional; hat the
law under which the order has been made is itself unconstitutional.
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UNIT II
Delegated Legislation
Introduction:- Montesquieu, a French scholar, conceived the principle of separation

of powers. He felt that governmental power should be vested in three different
organs, the legislature, the executive and the judiciary. Each organ should be
independent of the other and no one organ should perform functions that belong to
the other. The Indian Constitution does not strictly follow the principle of
separation of powers. The executive is a part of the legislature and is responsible
to it. In all democratic countries, an important segment of administrative process is
delegated legislation. The great increase in delegated legislation in modern times
is due to several factors, which we will discuss later on. Though law making is the
primary function of the legislature, yet in no country does the legislature
monopolise the entire legislative power; it shares the same with the executive. A
large bulk of legislation is made by the Administration under the powers conferred
on it by the legislature. No statute is passed today by a legislature which does not
confer some legislative power on the Administration. The Act conferring
legislative power is known as the “Parent Act”; the subordinate legislation goes
under various appellations, such as, rules, regulations, schemes, by-laws, statutory
rules, orders etc. The power of delegated legislation may be given to the Central
Government or the State Government depending upon whether the statute is a
Central or a state law. Sometimes Central laws delegate legislative powers to the
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state governments and sometimes both the Central and the state governments
derive rule-making power from the same Act.
What is delegated legislation?
Delegated legislation has been defined by: Salmond as – ‘that which proceeds
from any authority other than the sovereign power and is therefore dependent for
its continued existence and validity on some superior or supreme authority’.
In simple terms it means-‘when the function of legislation is entrusted to organs

other than the legislature by the legislature itself the legislation made by such
organs is called delegated legislation’.
Here we may give some instances of delegation viz., the Northern India Canal and
Drainage Act, 1873, the Opium Act, 1878; the Advocate Act, 1961, the Export &
Import Act, Essential Commodities Act, 1955, the Indian Medical Council Act, the
Right to Information Act,2005 etc.
Need for delegation legislation or reasons for the growth of delegated

legislation
The causes for the growth of delegated legislation are discussed below:
(a) Pressure upon Parliamentary Time: The legislative activity of the State has
increased in response to the increase in its functions and responsibilities. The
legislature is preoccupied with more important policy matters and rarely finds time
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to discuss matters of detail. It therefore formulates the legislative policy and gives
power to the executive to make subordinate legislation for the purpose of
implementing the policy.
(b) Filling in Details of Legislation: The legislature has to make a variety of laws
and the details required to be provided in each of these laws require knowledge of
matters of technical or local or specialized nature. The executive in consultation
with the experts or with its own experience of local conditions can better improve
these. There is no point in the legislature spending its time over such details and
therefore the power to fill them in is often delegated to the executive or local
authorities or expert bodies.
(c) The Need for Flexibility: A statutory provision cannot be amended except by an
amendment passed in accordance with the legislative procedure. This process
takes time. It may however be necessary to make changes in the application of a
provision in the light of experience. It is therefore convenient if the matter is left
to be provided through subordinate legislation. Delegated legislation requires less
formal procedure and therefore changes can be made in it more easily.
(d) Administration through Administrative Agencies: Modern government is

plurastic and functions through a number of administrative agencies and
independent regulatory authorities, which have to regulate and monitor activities in
public interest. These agencies such as the Election Commission or the Reserve
Bank of India or the Board for Industrial and Financial Reconstruction(BIFR) or
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the Electricity Commission or the Telecom Regulatory Authority of India(TRAI)

etc. have to perform ongoing regulation and control of various activities. Each of
these agencies is required to make rules or regulations in pursuance of its
regulatory function.
(e) Meeting Emergency Situations: In times of emergency, the government may

have to take quick action. All its future actions cannot be anticipated in advance
and hence provisions cannot be made by the legislature to meet all unforeseeable
contingencies. It is safer to empower the executive to lay down rules in accordance
with which it would use its emergency power.
Classification of delegation legislation:
Delegated legislation may be classified as follows:
(a) Power to bring an Act into Operation: Usually an Act provides that it shall
come into force on such date as the Central Government or the State government,
as the case may be, may, by notification in the Official Gazette appoint. For
example section 1(3) of The Industries( Development and Regulation) Act, 1951.
Such power is given because the government has better knowledge of the practical
exigencies of bringing the law into force. Ideally, since the legislature has passed
the law, the executive is bound to bring it into force.
In A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the
Constitution (44th) Amendment Act, 1978, which conferred power on the
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executive to bring the provisions of that Act into force did not suffer from
excessive delegation of legislative power. The Court rejected the contention that
the power delegated was a constituent power. It was held that there were practical
difficulties in the enforcement of the laws contemporaneously with their enactment
as also in their uniform extension at the time when the law was enacted.
Therefore, the power is given to the executive to decide the date on which the Act
is to come into force.
(b) Conditional Legislation: The legislature makes the law but leaves it to the
executive to bring the Act into operation when conditions demanding such
operation are obtained. The executive has to decide whether the necessary
conditions required for the law to be in operation have been satisfied or not and if
they have been so, it should issue a notification bringing the law into operation.
This is called conditional legislation. Conditional legislation is of the following
types:
(i) Power to bring an Act into operation;
(ii) Power to extend the application of any Act in force in one territory to another
territory; and to restrict and make modifications in the original legislation to suit
the exigencies of the territory under its control;
(iii) Power to extend the life of an Act; and
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(iv) Power to extend or to exempt from the operation of an Act certain categories
of subjects or territories.
(c) Power to Fill in Details : This is the most common type of delegated legislation.
The legislature passes the skeleton and empowers the executive to provide the
flesh and bones through subordinate legislation. The enabling clause usually says
that the Central or the state government may make rules ‘to carry out the purposes
of the Act’.
(d) Powers to Remove Difficulties: Many Acts contain provisions for conferring
such extensive power of delegated legislation on the executive. The purpose of
such provision is to enable the executive to remove difficulties in the
implementation of the Act and to effectuate its purpose and policy. For example,
Section 26 of the Legal Services Authorities Act, 1987 and section 29 of the
Insurance(Regulatory and Development) Authority Act, 1999.
Constitutionality of delegated legislation –
Judicial Review of Delegated Legislation Judicial review upholds the rule of law.
The courts have to see that the delegated legislation is exercised within the ambit
of the power delegated and according to the Constitution. Judicial review tends to
be more effective because the Courts do not merely recommend but can strike
down a rule if it is ultra vires the enabling Act or the Constitution. Since the word
‘law’ as defined in Article 13(3) (a) includes order, by law, rule, regulation and
notification, the entire subordinate legislation, like plenary legislation is subject to
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the command of art 13(2) which says that the state shall make no law which takes
away or abridges the rights conferred by Part III of the Constitution. Delegation
legislation may therefore be assailed on the following grounds:
(i) that it is ultra vires the enabling Act; and
(ii) that it is ultra vires the Constitution.
The first ground alleges that the rules so impugned are not within the ambit of the
power delegated. This ground may contain the charge of substantive lack of power
or non-conformity with the procedure prescribed under the enabling Act. The
second ground involves lack of power as well as violation of any specific
constitutional provision.
Control Mechanism of administrative rule making in India
Control Mechanism of delegated Legislation (three types)
1. Parliamentary/Legislative Control.
2. Procedural/Administrative/Executive Control.
3. Judicial Control.
1. PARLIAMENTARY/LEGISLATIVE CONTROL.
In a parliamentary democracy it is the function of the legislature to legislate, but if

it seeks to delegate this power to the executive in some circumstances, it is not
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only the right of legislature, but also its obligation as principal to see how its agent
(i.e. the Executives) carries out the agency entrusted to it. Hence the parliamentary
control over delegated legislation should be a living continuity as a constitutional
necessity. The fact is that due to the broad delegation of legislative powers and the
generalized standard of control also being broad, the judicial control has shrunk,
raising the desirability and necessity of parliamentary control.
In India, ‘parliamentary control’ is implicit as a normal constitutional function

because the executive is responsible to the Parliament Legislative Control is a two
stage control.
1. Initial stage (At the stage of delegation of power)
2. When legislature exercise control in two parts (direct and indirect control)
Initial stage: In case where there is a bill which provides of delegation of powers
such a bill should be accompanies by a legislation stating how much power has
been delegated. The basic emphasis in the initial stage is that whether the power
has been validity delegated or not.
Second stage: (A) Direct Control, and (B) Indirect Control.
(A) Direct Control: In this the important aspect is the laying requirement which
means that the rules have to be placed before the Parliament. Laying comes into
play after the rules are made and it assumes three major forms depending on the
degree of control which the legislative may like to exercise.
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(a) Simple laying (i.e. laying with no further direction): In this, the rules inform
house come into effect as soon as they are laid. It is simply to vides that the rules
shall be laid before parliament as soon as they are made or published. It is
directory in nature.
(b) Negative laying or subject to annulment or modification: The rules come into
force as soon as they are placed before Parliament but cease to have effect if
disapproved by the Parliament in specified time i.e. within 40 days. It is directory
in nature unless and until annulled by the Parliament.
(c) Affirmative Laying: The technique may take two shapes:
(i) That the rules have no effect unless approved by a resolution of both houses of
parliament.
(ii) That the rules shall cease to have effect unless approved by affirmative
resolution. This technique necessitates a debate in every case thus one object of
delegation (viz. saving the time of Parliament) is to some extent defeated. This
requirement is mandatory in nature because rules made in draft form shall be
placed before both the houses of parliament for approval and then they will come
into force after they have been approved. If this procedure is not followed it
affects the legal validity of rule.
Therefore this procedure is sparingly used and reserved to cases where the order
almost amounts to an Act by effecting changes which approximate to true
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legislation, and cases where the spending of public money is affected or where the
order replaces local Acts or provisional orders. Amongst all three methods simple
laying is hardly used and negative resolution is the commonest form of laying.
Legal consequences of non compliance with the laying provision
In India, the position is not categorical, the consequence of non compliance with
the laying provisions depend on whether the provisions in the enabling Act are
mandatory or directory.
Test for mandatory.
1. Where the laying requirement is a conditions precedent to bring the rules into
force then in such a case the laying requirement is mandatory in nature.
2. Where there is a provision that the rules be in draft form then such form states
that laying is mandatory in nature.
Test for Directory
Where laying requirement is subsequent to bring the rules into operation then the
laying requirement will directory in nature.
This issue of mandatory or directory was debated at length in Atlas Cycle Ind. Ltd.
V. State of Haryana (AIR 1979 SC 1149) the Section 3(6) of Essential
Commodities Act, 1955 provided that rules made by the central government shall
be laid before the parliament as soon as they are made. Accordingly the central
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government made a rule, making Iron and Steel an essential commodities. On spot
checking the development officer found that the company had purchased instituted
against the company. The company contended that this suffered from procedural
ultravires as it has not been laid before the Parliament. The court held that the
Section required simple laying hence it is directory in nature and not mandatory in
nature. In case of simple laying the rules come into force the moment they are laid
before the legislature and they do not require any action on the part of the
legislature to come into force.
The Supreme Court observed two considerations for regarding a provision as

directory-
1. Absence of any provision for the contingency of a particular provision not being
complied with or followed.
2. Serious general inconvenience and prejudice that would result to the general
public if the act of the Government or an instrumentality is declared invalid for
non- compliance with the particular provision.
(B)Indirect Control: This control is exercised by Parliament through its

committees. Such a committee known as the committee on subordinate legislation
of Lok Sabha set up in 1953 and consist of 15 members appointed by Lok Sabha
Speaker for a period of one year. Another committee on subordinate legislation
known as Rajay Sabha committee constitutive in 1964 consist of 15 member
nominated by chairman of Rajaya Sabha & it holds office till new committee is
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formed. The committee is assigned the task to scrutinize and report to the House,
whether the power to make regulations, bye laws, etc conferred by the constitution
or delegated by the Parliament are being properly exercised within such delegation
Ministers can become members of this committee. The main function of the
committee shall be to examine:
1. Whether the rules are in accordance with the general object of Act.
2. Whether the rules contain any matter which could more properly be dealt with
in the Act.
3. Whether it conations imposition of tax.
4. Whether it directly or indirectly bars the jurisdiction of the court.
5. Whether there has been unjustified delays in its publication or laying.
6. Whether it is retrospective in nature.
7. Whether it involves expenditure from the consolidated fund.
8. Whether it is safeguard of principle of natural justice.
The government attaches great weight to the committee’s report and tires is
implement its recommendations. The biggest drawback is that is cannot strike
know delegated legislation on the basis of being excessive in nature, it is just
recommendatory in nature not corrective.
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2. PROCEDURAL/ADMINISTRATIVE/EXECUTIVE CONTROL.
Executive legislating under delegated legislation is ordinarily free from rigid

procedural requirements unless the legislature makes it mandatory for the
executive to abide by a certain procedure. This is because rigid procedural
requirements may turn out to too time consuming and cumbersome and they may
defeat the very purpose of delegated legislation. However, communication in one
form or other to the general public still remains indispensable for the law to be
legally valid and binding. Hence procedural control means certain procedures
which are laid down in the parent Act which have to be followed by the authorities
while making the rules.
Delegated legislation may be challenged on the ground that it has been in

accordance with the procedure prescribed by the enabling Act. However, rules
become invalid on the ground of non-compliance with prescribed procedure only if
such procedure is mandatory.
Non-compliance with the directory provisions does not render them invalid. It
becomes a case of procedural alternatives. One has to see whether the procedure
is mandatory or directory. Procedural control mechanism operates in three
components:
(i) Pre-publication and consultation with an expert body or approval of an

authority.
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(ii) Publication of delegated legislation.
(iii) Laying of the rules before the legislature.
This procedural control mechanism may be either mandatory or directory. For the
purpose of mandatory or directory control mechanisms few important parameters
should be taken into account viz (a) Scheme of Act (b) Intention of legislature i.e.
whether treated mandatory or directory (c) language in which the provision is
drafted (d) Serious inconvenience being caused to the public at large, these were
four parameters laid down in case.
Raza Buland Sugar Co. v.Rampur Municipal Council (AIR 1965 Sc 895).
(1) Consultation and Pre-publication.”
The “modus-operandi” is regarded as a valuable safeguard against the misuse of

legislative power by the executive authorities. The effect of the term previous
publication according to S.23 of General Clause Act, 1897 is that:
(i) The rules should be published in draft form in Gazette.
(ii) Objections and suggestions be invited by a specific date mentioned there in,
and
(iii) Those objection and suggestions be considered by rule-making authority.
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In India, a provision of prior consultation, if contained in the enabling Act is

considered sometimes as mandatory and sometime as directory. In issue like
environment, this requirement is considered as mandatory in nature.
The provisions for prior consultation may take various forms:
(a) Official consultation: The central govt. is required to make rules U/s 52 of the
Banking Companies Act, after consulting the Reserve Bank of India.
(b) Consolation with statutory bodies: Incharge of a particular subject.
(c) Consultation with Administrative boards.
(d) Consultation with affected persons: Municipalities, before tax imposition have
to publish draft rules in a Hindi daily and consult the inhabitants of the area.
Under the industries development and regulations act, representations from the
industry and public are invited.
(e) Draft Rules and Affected interest: Under Indian Mines Act, Sec.61 empowers
owner of a time to frame or to draft rules themselves for safety etc. n mines and
submit them to inspector of mines. Such rule becomes operative on being
approved by the government.
In Ibrahim vs. Regional Transport Authority (Air 1953 SC 79), consultation

with the Municipality was required to be made the Transport Authority before
certain routes for buses were fixed. The S.C. held it to be merely directory.
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(2) PUBLICATION (POST NATAL PUBLICITY)’
It is a fundamental principal of law “ignorantia jris non excusat” (ignorance of law

is no excuse) but there is also another equally established principle of law that the
public must have the access to the law and they should be given an opportunity to
know the law. All laws ought either to be known or at least laid open offend
against them under pretence of ignorance. It is essential that adequate means are
adopted to publicize the rules so that people are not caught on the wrong foot, in
ignorance of the rules applicable to them in a given situation.”
Thus, in Harla v. State of Rajasthan (Air 1951 SC 467) the council by resolution
enacted the Jaipur opium Act which made rule that if a person carried opinion
beyond a certain limit then it was an offence committed and penalty had to be
imposed on the accused & act was never published. One Harla was prosecuted for
the contravention of this law because he was in possession of opium in more
quantity than permitted. He contended that it was a case of procedural ultravires.
Holding that the law was not enforceable the Supreme Court observed.
“promulgation or publication of some sort is essential other wise it would be
against principles of natural justice to punish the subject under a law of which they
had no knowledge and of which they could not even with the exercise f reasonable
diligence be said to have acquired any knowledge.”
In Narendra Kumar v.s U.O.I. (AIR 1960 Sc 430) Sec.3 of Essential

commodities Act, 1955 required all the rules to be made under the Act to be
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notified in official gazette. The principles applied by licensing authority for

issuing permits for the acquisition of non-ferrous metals were not notified. The
S.C. held the rules ineffective because the mode of publication i.e. in Official
Gazette was held to be mandatory.
NECESSITY OF PUBLICATION
Whether the requirement as to be mode of publication of rules is mandatory or

directory? Will the rules be valid if to published in official gazette but circulated in
any other mode?
Form the point of view of the individual it is infair to publish the rule is obscure
publication. First publication in required mode creates certainty in the mind of the
individual that rules have been duly made. Secondly it enables him to have say
access ability to the rules.
In Raza Buland Sugar Co. v. Rampur Municipality (AIR 1965 SC 896) for the
S.C. Wanchoo, J. observed. ‘The question whether a particular provision of statute
which on the face of a appears mandatory or is merely directory cannot be laying
down any general rule and depends upon the facts of each case and for that purpose
the object of the statute in making the provision is the determining factor. The
language of the provision have all to be taken into account in arriving at the
conclusion whether particular provision is mandatory or directory.” Further, the
medium of publication has been held to be a mandatory requirement.
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3. JUDICIAL CONTROL
Judicial review upholds the rule of law. The courts have to see that the delegated
legislation is exercised within the ambit of the power delegated and according to
the Constitution. Judicial review tends to be more effective because the Courts do
not merely recommend but can strike down a rule if it is ultra vires the enabling
Act or the Constitution. Since the word ‘law’ as defined in Article 13(3) (a)
includes order, by law, rule, regulation and notification, the entire subordinate
legislation, like plenary legislation is subject to the command of art 13(2) which
says that the state shall make no law which takes away or abridges the rights
conferred by Part III of the Constitution. Delegation legislation may therefore be
assailed on the following grounds:
(i) that it is ultra vires the enabling Act; and
(i) that it is ultra vires the Constitution.
The first ground alleges that the rules so impugned are not within the ambit of the
power delegated. This ground may contain the charge of substantive lack of power
or non-conformity with the procedure prescribed under the enabling Act. The
second ground involves lack of power as well as violation of any specific
constitutional provision.
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Sub-Delegation
The expression 'subordinate legislation' means the act of making statutory

instruments by a body subordinate to the Legislature and in exercise of the power,
within specific limits, conferred by the Legislature. The term also connotes and
covers the statutory instruments themselves.
Legislation is either supreme or subordinate. The former is that which proceeds

from the supreme or sovereign power in the State, and which is therefore incapable
of being repealed, annulled or controlled by any other legislative authority.
Subordinate legislation is that which proceeds from any authority other than the
sovereign power, and is, therefore, dependent for its continued existence and
validity on some superior or supreme authority. The idea is to supplement Acts of
Supreme Legislative Body by prescribing detailed rules required for their
operation.
Principle Underlying Sub-Delegation
The basic principle in this respect is that the sub-delegate should not be given
uncanalised and unguided legislative power. Like delegation, sub-delegation is also
subject to the doctrine of excessive delegation. Where a statute itself authorizes an
administrative authority to sub-delegate its powers, no difficulty arises as to its
validity since such subdelegation is within the terms of the statute itself. Sub-
Delegation of legislative powers When a statute confers some legislative powers
on an executive authority and the further delegates those powers to another
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subordinate authority of agency, it is called 'subdelegation.' Thus, a chain of

delegation gets created in which the origin of the power flows through the Parent
Act. Sub-delegation is the further delegation of power by a delegate to another
person or agency. The basic principle in this process is summarised by the maxim
'Delegatus Non Potest Delegare, Such sub-delegation can’t be made without the
duly authorisation by the parent statute under which the delegation has been taken
place.
UNIT III
Need for Devolution of Adjudicatory Authority on Administration
In view of the rapid growth and expansion of industry, trade and commerce,
ordinary law courts are not in a position to cope up with the work-load. Ordinary
judges, brought up in the traditions of law and jurisprudence, are not capable
enough to understand technical problems, which crop up in the wake of modern
complex economic and social processes. A good number of situations are such that
they require quick and firm action. Otherwise the interests of-the people may be
jeopardized. According to Servai, 'the development of administrative law in a
welfare state has made administrative tribunals a necessity'. Hence, a number of
administrative tribunals have been established in the country, which can do the
work more rapidly, more cheaply and more efficiently than the ordinary courts.
Nature of tribunals-constitution, powers, procedures, rules of evidence
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Section 2(aa) of The Administrative Tribunals Act, 1985 defines “Administrative

Tribunal”, in relation to a State, means the Administrative Tribunal for the State or,
as the case may be, the Joint Administrative Tribunal for that State and any other
State or States; Establishment of Tribunals and Benches thereof
Section 4 of The Administrative Tribunals Act, 1985 deals with Establishment of

Administrative Tribunals. –
(1) The Central Government shall, by notification, establish an Administrative

Tribune to be known as the Central Administrative Tribunal, to exercise
jurisdiction, powers and authority conferred on the Central Administrative Tribune
by or under this Act.
(2) The Central Government may, on receipt of a request in this behalf from any
State Government, establish, by notification, an Administrative Tribunal for the
State to be known as the (Name of the State) Administrative Tribunal to exercise
the jurisdiction, powers and authority conferred on the Administrative Tribunal for
the State by or under this Act.
(3) Two or more States may, notwithstanding anything contained in sub-section (2)
and notwithstanding that any or all of those States has or have Tribunals
established under that subsection, enter into an agreement that the same
Administrative Tribunal shall be the Administrative Tribunal for each of the States
participating in the agreement, and if the agreement is approved by the Central
Government and published in the Gazette of India and the Official Gazette of each
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of those States, the Central Government may, by notification, establish a Joint

Administrative Tribunal to exercise the jurisdiction, powers and authority
conferred on the Administrative Tribunals for those States by or under this Act.
(4) An agreement under sub-section (3) shall contain provisions as to the name of
the Joint Administrative Tribunal, the manner in which the participating States
may be associated in the selection of the Chairman, Vice-Chairman and other
Members of the Joint Administrative Tribunal, the places at which the Bench or
Benches of the Tribunal shall sit, the apportionment among the participating States
of the expenditure in connection with the Joint Administrative Tribunal and may
also contain such other supplemental, incidental and consequential provisions not
inconsistent with this Act as may be deemed necessary or expedient for giving
effect to the agreement.
(5) Notwithstanding anything contained in the foregoing provisions of this section,

or subsection (1) of Section 5, the Central Government may, - (a) With the
concurrence of any State Government, designate, by notification, all or any of the
Members of the Bench or Benches of the State Administrative Tribunal established
for that State under sub-section (2) as members of the Bench or Benches of the
Central Administrative Tribunal in respect of that State and the same shall exercise
the jurisdiction, powers and authority conferred on the Central Administrative
Tribunal by or under this Act; (b) On receipt of a request in this behalf from any
State Government, designate, by notification, all or any of the Members of the
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Bench or Benches of the Central Administrative Tribunal functioning in that State

as the Members of the Bench or Benches of the State Administrative Tribunal for
that State and the same shall exercise the jurisdiction, powers and authority
conferred on the Administrative Tribunal for that State by or under this Act. And
upon such designation, the Bench or Benches of the State Administrative Tribunal
or, as the case may be, the Bench or Benches of the Central Administrative
Tribunal shall be deemed, in all respects, to be the Central Administrative
Tribunal, or the State Administrative Tribunal for that State established under the
provisions of Article 323-A of the Constitution and this Act.
(6) Every notification under sub-section (5) shall also provide for the
apportionment between the State concerned and the Central Government of the
expenditure in connection with the Members common to the Central
Administrative Tribunal and State Administrative Tribunal and such other
incidental and consequential provisions not inconsistent with this Act as may be
deemed necessary or expedient.
Principles of Natural Justice
The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’,
which means principles of natural law, justice, equity, and good conscience. These
principles did not originate from any divine power, but are the outcome of the
necessity of judicial thinking, as well as the necessity to evolve the norms of fair
play.
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These are the principles which every disciplinary authority should follow while
taking any decision, which may adversely affect the rights of individuals. It is to be
seen that rules of natural justice are not codified anywhere; they are procedural in
nature and their aim is to ensure delivery of justice to the parties.
Adherence to rules of natural justice, as recognised by all civilised States, is of

supreme importance, when a quasi-judicial body embarks on determining disputes
between the parties or any administrative or disciplinary action is in question.
Rules of natural justice serve as hedge against any blatant discrimination against
rights of individuals. These rules are intended to prevent such authority from doing
injustice. They seem to be recognised by Article 21 of the Constitution of India in
a way which says, “No person shall be deprived of his life or personal liberty
except according to the procedure established by law". This is that procedure
which is held by the courts to be the rules of natural justice.
With the evolution of society, as well as legal jurisprudence, the concept of natural
justice has also undergone change. Rules of natural justice are not rules embodied
in any statute. These rules were part of the law and procedure during the British
Raj also, and are being observed in India since time immemorial. These rules have
become a part and parcel of the law, as well as procedure. These may be implied
from the nature of the duty to be performed under a statute. What particular rule of
natural justice should be applied depends on the facts and circumstances of each
case. With the passage of time, the old distinction between a judicial act and an
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administrative act has withered away. Orders of the disciplinary authority, which
involve civil consequence, must be consistent with the rules of natural justice,
otherwise the orders are likely to be set aside by the courts.
Over the years, two rules have evolved as representing the rules of natural justice
in judicial, quasi-judicial and administrative processes. The first rule is ‘nemo
debet esse judex in propria causa’, which means that no man shall be judge in
his own cause. The second principle is ‘audi alteram partem’, which means that
no one should be condemned unheard.
It is of importance to note that proceedings before the civil court are governed by
the Code of Civil Procedure; criminal proceedings are governed by the Criminal
Procedure Code, but in respect of departmental enquiries, no detailed guidelines
have been codified. So, in the absence of any codified law, proceedings under
departmental enquiries are mainly governed by the principles of natural justice.
However, principles of natural justice are subservient to statutory provisions. They
are not the rule of law that can override the codified laws of the land. In the case of
A.K. Kraipak Vs. Union of India (AIR 1970 SC 150), the Supreme Court said
that the aim of natural justice is to secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate only in areas not covered by any
law validly made, in other words, they do not supplant law, but supplement it.
The nature of the rules of natural justice is flexible. They tend to change with the
exigencies of time, and circumstances of each case. Due to their flexible nature,
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they may seem to be vague or uncertain, but they have been very well adopted by
the Indian legal system. Their aim is to prevent arbitrariness, as well as miscarriage
of justice.
They are not enforceable as fundamental rights, but nevertheless, they ensure a
strong safeguard against any arbitrary action that may adversely affect the rights of
individuals. These have been laid down by the courts as being the minimum
protection to rights of individuals against the arbitrary procedure that may be
adopted by a judicial or quasi-judicial authority, while making an order affecting
those rights. These rules are intended to prevent such authority from doing
injustice. In the past, there were only two rules forming the rules of natural justice;
with the course of time, many more subsidiary rules came up to be added to them.
These principles are now well settled and can be summarised as under:
(i) That every person, whose civil rights are affected, must have a reasonable
notice of the case he has to meet
(ii) That he must have reasonable opportunity of being heard in his defence
(iii) That the hearing must be by an impartial tribunal
(iv) That the authority must act in good faith and not arbitrarily
(v) The order should be a speaking order
Audi alteram partem
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Departmental enquiries relating to the misconduct of individuals should conform to

certain standards. One of the standards is that the person concerned must be given
a fair and reasonable opportunity to defend himself. It means that no man should
be condemned unheard and he has right to know the accusations levelled against
him. He has also the right to know the premise on which such accusation is based,
and a reasonable opportunity to adduce all relevant evidence in his defence. In
many statutes, provisions are made ensuring that a notice is given to the person
against whom an order is likely to be passed before a decision is taken, but some
statutes may not contain such provisions. It is here that the rules of natural justice
come to play their role. They operate in those areas which are not covered by any
law. These principles thus supplement the law and prevent the occurrence of
injustice.
In the case of Nagar Palika, Nataur Vs. U.P. Public Services Tribunal,
Lucknow, 1998 SCC (L&S)567, despite reminders, the employee neither
submitted reply to the charge sheet, nor appeared before the enquiry officer, and
neither did he inspect the records, in spite of the opportunity given to him. In such
cases, the findings of the enquiry officer on the basis of the available records that
the charges were proved, was held not violative of the rules of natural justice.
In the case of Ajit K Nag Vs. General Manager, Indian Oil Corporation (2005)
7 SCC 764, it was held that non-observance of principles of natural justice vitiates
the order, only when some real prejudice is caused to the complainant by such
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omission. The said principles are now applied, having regard to the facts and
circumstances in each case. Where the enquiry officer found one of the charges not
proved, but without issuing a show cause notice, the disciplinary authority found
even that charge to be proved, it was held that the rules of natural justice were
definitely violated causing prejudice to the delinquent.
In the case of Syndicate Bank Vs. Venkatesh Gururao Kurati 2006(2) SCALE
101, it was held by the Supreme Court that non-supply of documents on which the
enquiry officer does not rely during the course of enquiry, does not create any
prejudice to the delinquent officer, so there is no violation of the rules of natural
justice. In the case of Chatterji Vs. Durgadutt, 23 Cal LJ 436, it was held that the
law never acts by stealth; it never condemns any one unheard, so that a personal
judgment rendered against a party without notice or an appearance by him, is
vitiated by the same infirmity as a judgment without jurisdiction.
Nemo debet esse judex in propria causa
The maxim means that no person can be a judge in his own cause. The
fundamental rule of natural justice in departmental proceedings is that the
disciplinary authority should be impartial and free from bias. It must not be
interested in or related with the cause which is being decided by him. The personal
interest can be in the shape of some pecuniary benefit or some personal relation or
even ill-will or malice or any official bias against any of the parties. The real test is
whether a man of ordinary prudence would have a feeling of bias. This follows
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from the principle that justice should not only be done, but should manifestly seem
to be done. In an important case of Mukhtar Singh vs. State AIR 1957 ALL 297,
it was held that the hearing must be by an impartial tribunal, i.e. by a person who is
neither directly nor indirectly interested in the case. One who has any interest in
the litigation is already biased against the party concerned and the findings of such
authority are liable to be struck down.
In the industrial dispute cases, the question of bonafides or mala fides of the
employer carries importance. If it is shown that an employer was actuated by a
desire to victimise a workman, that may in some cases introduce an infirmity in the
order of the disciplinary authority. This is another reason why the enquiry in
industrial matters should be held with scrupulous regard to the rules of natural
justice. It should be noted that the enquiry officer cannot be the person who is
himself a complainant or is related to any of the witnesses or the concerned
employee, or has ill-will or malice against any of the person concerned.
In the case of Anandram Vaswani Vs. Union of India (1983)2 LLN 510, it was
observed by the court that in the domestic enquiries, the enquiry officer, as well as
the witnesses, were from the same establishment, which was sufficient to raise
serious apprehension in the mind of the charge sheeted employee. If some sort of
legal help may be provided to the employee, the balance which is tilted in favour
of the management, may tilt partially towards the delinquent. The court further
observed that the justice should not only be done, but should appear to be done,
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and this is not a euphemism for courts alone, it applied with equal vigour to all
those who were responsible for fair play.
Reasoned order
It would be observed that about three or four decades ago, it was not required that
the administrative order or the order of disciplinary authority must be supported
with reasons. It was held by the Supreme Court in the case of Som Dutt Vs. Union
Of India, AIR 1969 SC 414 that there is no rule of natural justice that a statutory
tribunal should always and in every case give reason in support of the decision.
With the evolution of natural justice, a new dimension of reasoned order has been
added to these rules. There is a feeling among legal luminaries that the requirement
of providing reasons for any decision gives an assurance that the evidence relating
to the case has been duly considered by the authority. The findings should also be
supported by reasons because: it facilitates judicial review of findings of the
enquiry officer; findings offer assurance to the parties that the decision is the
outcome of rationality based on evidence as well as the records of the case; and it
ensures against arbitrary or hasty action on the part of deciding authority.
Due to these developments in the legal jurisprudence, now it is being held by the
courts that the order passed by an enquiry officer or administrative agency must be
a speaking order. If the order is not supported by reasons, it will amount to
violation of the rules of natural justice. If the order is passed with reasons, only
then will it show that there was proper appreciation of evidence by the disciplinary
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authority, otherwise the aggrieved party will not be in a position to demonstrate

before the appellate authority, as to the manner in which the order passed by the
initial authority is bad or suffers from a particular illegality. It does not mean that
the order must be a lengthy one, and must deal with all minute details like the order
of a judicial court. It must at least show that there was proper appreciation of
evidence and application of mind before passing it. In the case of Anjali Vs. SBI
1993 (2) Bank CLR 372, termination from bank service was based on findings
which were founded on pure suspicion, and surmises without subscribing, any
reason. On appeal, it was held that the order was not a speaking order, with no
application of mind to the points raised by the employee. Hence, termination from
service was quashed, as the principles of natural justice were violated.
This rule of natural justice of ‘speaking order’ is a comparatively new dimension

added to the principles and now emphasis is placed on giving reasons in the
findings. The concept of social security, length of service of the employee, nature
of charges, gravity of charges, status in life, family circumstances etc are now
being given greater importance by the courts. However, the courts have repeatedly
held that no two cases can be equal; each case is to be decided according to its
merits and circumstances.
With the insertion of Section 11-A in the Industrial Disputes Act, 1947, a step has
been taken to give more social security to employees, as Tribunals and Labour
Courts have been invested with powers of going into the question of ‘quantum of
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punishment’. This will prove to be a check on the disciplinary authority while

passing any order. In the case of Mohini Vs. General Manager, Syndicate Bank
2 Bank CLR 629, it was held that remedy under the Industrial Disputes Act is
comprehensive than Article 226 of the Constitution. Labour Courts have wide
powers to examine the validity of enquiry, quantum of punishment and merits of
the charges, and to give independent findings. With the insertion of section 11-A,
Industrial Disputes Act, 1947, greater amount of social security has been provided
to employees, and the labour courts can definitely review the quantum of
punishment. After the inclusion of section 11-A, the past record of an employee is
held to be relevant for deciding the quantum of punishment.
It would be seen that the rules of natural justice are flexible, and cannot be
weighed in golden scales, nor can it be put in any straight-jacket. It depends on the
extent to which the rights of an individual are affected. The role of these rules is to
ensure justice to both the parties. Their contravention cannot be presumed, unless it
can be shown that injustice has actually been done. In certain matters, only
representation may be sufficient, while in others, full-fledged hearing and cross-
examination may be necessary. What the courts have to examine is that whether
non-observance of any of the rules is likely to prejudice any of the parties.
UNIT IV
Administrative Discretion: Meaning
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Discretion in layman’s language means choosing from amongst the various

available alternatives without reference to any predetermined criterion, no matter
how fanciful that choice may be. Discretion in the context of the term
‘administrative’ means choosing from amongst the various available alternatives,
but with reference to the rules of reason and justice and not according to personal
whims. Such exercise is not to be arbitrary, vague and fanciful but legal and
regular.
Judicial Review of Administrative Action and Grounds of Review

The Power of judicial review is a constitutional power since it is the Constitution
which invests these powers in the Supreme Court and the High Courts in the
States. So far the Supreme Court is concerned the relevant Articles are 32 with
Articles 12 and 13 and Article 136. Article 32 empowers the Supreme Court to
issue directions, orders or writs (which are specifically mentioned therein) for the
enforcement of fundamental rights. What is unique about Article 32 is that the
right to move the Supreme Court under this Article is itself a Fundamental Right.
Thus the Supreme Court is made guarantor or protector of the fundamental rights.
The Supreme Court
has further expanded the scope of this Article even in cases where no fundamental
right is involved. In M.C.Mehta v. Union of India, it was held that where a
person manipulated facts in order to get a decree by a court to defeat the ends of
justice, in such a situation petition was held
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to be maintainable under Article 32. Though Article 32 is called cornerstone of the

democratic edifice, it becomes inconvenient for the Supreme Court to entertain
petitions under original jurisdiction since it could overload the court. Therefore,
sometimes the Supreme Court suggests that the petitioner should first approach the
High Court under Article 226 before coming to the Supreme Court under Article
32.
Powers of the Supreme Court
Article 136-A Special Power of Judicial Review
Under Article 136, the Supreme Court may grant special leave to appeal against
any decision of a Tribunal. What is a Tribunal is not defined, but the Supreme
Court has interpreted it in a liberal way. A tribunal is a body or authority which is
vested, with judicial power to adjudicate on question' of law or fact, affecting the
rights of citizens in a judicial manner. Such authorities or bodies must have been
constituted by the state and vested with judicial as distinguished from
administrative or executive functions.
Article 136 does not confer a right of appeal as such but a discretionary power on
the Supreme Court to grant special leave to appeal. The Supreme Court has held
that even in cases where special leave is granted, the discretionary power continues
to remain with the court even at the stage when the appeal comes up for hearing.
Generally, the court does not, grant special leave to appeal, unless it is shown that
exceptional and special circumstance exist, that substantial and grave injustice has
been done and the case in question presents sufficient gravity to warrant a review
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of the decision appealed against. It confers a very wide discretion on the Supreme
Court to be exercised for satisfying the demands of justice.
Powers of the High Courts
Article 226 (1) empowers the High Courts in the States or Union Territories to
issue to any
person or authority including any Government within their territories, directions,
orders or writs for the enforcement of the fundamental rights or for any other
purpose. The power of judicial review of the High Court under Article 226 is wider
than the Supreme Court’s power under Article 32 of the Constitution. The
expression 'for any other purpose' enables the High Court to exercise their power
of judicial review for the enforcement of ordinary legal rights which are not
fundamental rights. High Court can issue a writ to a person or authority not only
when it is within the territorial jurisdiction of the court but also when it is outside
its jurisdiction provided the cause of action wholly or partly arises within its
territorial jurisdiction.
This power of the High Court under Article 226 is concurrent with the power of the
Supreme Court under Article 32 of the Constitution.
Article 227 clause (1) confers the power of 'superintendence over all courts and
tribunals throughout the territories in relation to which it exercises jurisdiction.
However, this power does not extend, like Article 136, over any court or tribunal
constituted under any law relating to the Armed Forces.
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This power is in addition to the power conferred upon the High Court under Article
226 which is of a judicial nature. Is this power of superintendence, administrative
or judicial? Under the Government of India Act, 1935 this power extended only to
the courts and was of administrative nature only. Under the Constitution it is
extended to the tribunals and section 224 (2) of the Government of India Act,
1935, which made it of administrative nature, was not retained in Article 227.
Therefore, the power of superintendence under Article 227 is of an administrative
as well as judicial nature. The parameters of this power are well settled and it is
exercised on the same grounds as the power of judicial review. They are: (i) It can
be exercised even in those cases where no appeal or revision lies to the High Court;
(ii) The power should not ordinarily be exercised if any other remedy is available
even if it involved inconvenience or delay. (iii) The power is available where there
is want or excess of jurisdiction, failure to exercise jurisdiction violation of
principles of natural justice and error of law apparent on the face of the record; (iv)
In the exercise of this power the High Court does not act as appellate tribunal.It
does not invest the High Court with an unlimited prerogative to interfere in cases
where wrong decisions have been arrived at by judicial or quasi-judicial tribunals
on questions of law or fact.
There has to be grave miscarriage of justice or flagrant violation of law calling for
interference.
Administrative Discretion and fundamental rights: No law can clothe
administrative discretion
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with a complete finality, for the courts always examine the ambit and even the
mode of its exercise for the angle of its conformity with fundamental rights. The
fundamental rights thus provide a basis to the judiciary in India to control
administrative discretion to a large extent. There have been a number of cases in
which a law, conferring discretionary powers, has been held violative of a
fundamental right. The following discussion will illustrate the cases of judicial
restraints on the exercise of discretion in India.
Administrative Discretion and Article 14: Article14 prevents arbitrary discretion
being vested in the executive. Equality is antithetic to arbitrariness. Article 14
strikes at arbitrariness in State action and ensures fairness and equality of
treatment. Right to equality affords protection not only against discretionary laws
passed by legislature but also prevents arbitrary discretion being vested in the
executive. Often executive or administrative officer or Government is given wide
discretionary power. In a number of cases, the Statute has been challenged on the
ground that it conferred on an administrative authority wide discretionary powers
of selecting persons or objects discriminately and therefore, it violated Article 14.
The Court in determining the question of validity of such statute will examine
whether the statute has laid down any principle or policy for the guidance of the
exercise of discretion by the Government in the matter of selection or
classification. The Court will not tolerate the delegation of uncontrolled power in
the hands of the Executive to such an extent as to enable it to discriminate.
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Under Article 19: Article 19 guarantees certain freedoms to the citizens of India,
but they are not absolute. Reasonable restrictions can be imposed on these
freedoms under the authority of law. They cannot be contended merely on
executive action. The reasonableness of the restrictions is open to judicial review.
These freedoms can also be afflicted by administrative discretion. Such cases can
be examined below. A number of cases have come up involving the question of
validity of law conferring discretion on the Executive to restrict the right under
Article 19(1) (b) and (e). The State has conferred powers on the Executive to
extern a person from a particular area in the interest of peace and safety in a
number of statutes.
Under Article 31(2): Article 31(2) of the Constitution provided for acquisition of
private property by the Government under the authority of law. It laid down two
conditions, subject to which the property could be requisitioned _1) that the law
provided for an amount (after 25th Amendment) to be given to the persons affected,
which was non-justifiable; and (2) that the property was to be acquired for a public
purpose. In an early case, where the law vested the administrative officer with the
power to acquire estates of food grains at any price, it was held to be void on the
grounds, inter alia, that it failed to fix the amount of compensation or specify the
principles, on which it could be determined. Since the matter was entirely left to
the discretion of the officer concerned to fix any compensation it liked, it violated
Article 31(2). The property under Article 31(2) could be acquisitioned for a public
purpose only. The Executive could be made the sole judge to decide a public
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purpose. No doubt, the Government is in best position to judge as to whether a

public purpose could be achieved by issuing an acquisition order, but it is a
justifiable issue and the final decision is with the courts in this matter. Hence, in
India the administrative discretion may be reviewed by the court on the following
grounds.
Abuse of Discretion
These days, the administrative authorities are conferred wide discretionary powers.
There is a great need of their control so that they may not be misused. The
discretionary power is required to be exercised according to law. When the mode
of exercising a valid power is improper or unreasonable there is an abuse of power.
The abuse of the discretionary power is inferred in the following conditions: -
i) Use for improper purpose: - The discretionary power is required to be used for
the purpose for
which it has been given. If it is given for one purpose and used for another
purpose. It will amount to abuse of power.
ii) Malafide or Bad faith: - If the discretionary power is exercised by the authority
with bad faith or dishonest intention, the action is quashed by the court. Malafide
exercise of discretionary power is always bad and taken as abuse of discretion.
Malafide may be taken to mean dishonest intention or corrupt motive. In relation to
the exercise of statutory powers it may be said to comprise dishonesty (or fraud)
and malice. A power is exercised fraudulently. If its repository intends to achieve
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an object other than that for which he believes the power to have been conferred.
The intention may be to promote another public interest or private interest.
iii) Irrelevant consideration: - The decision of the administrative authority is
declared void if it is not based on relevant and germane considerations. The
considerations will be irrelevant if there is no reasonable connection between the
facts and the grounds.
iv) Leaving out relevant considerations: - The administrative authority exercising
the discretionary power is required to take into account all the relevant facts. If it
leaves out relevant consideration, its action will be invalid.
v) Mixed consideration: - Sometimes the discretionary power is exercised by the
authority on both relevant and irrelevant grounds. In such condition the court will
examine whether or not the exclusion of the irrelevant or non-existent
considerations would have affected the ultimate decision. If the court is satisfied
that the exclusion of the irrelevant considerations would have affected the decision,
the order passed by the authority in the exercise of the discretionary power will be
declared invalid but if the court is satisfied that the exclusion of the irrelevant
considerations would not be declared invalid.
vi) Unreasonableness: - The Discretionary power is required to be exercised by the
authority reasonably. If it is exercised unreasonably it will be declared invalid by
the court. Every authority is required to exercise its powers reasonably.
vii) Colourable Exercise of Power: - Where the discretionary power is exercised by
the authority on which it has been conferred ostensibly for the purpose for which it
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has been given but in reality for some other purpose, it is taken as colorable
exercise of the discretionary power and it is declared invalid.
viii) Non-compliance with procedural requirements and principles of natural
justice: - If the procedural requirement laid down in the statute is mandatory and it
is not complied, the exercise of power will be bad. Whether the procedural
requirement is mandatory or directory is decided by the court. Principles of natural
justice are also required to be observed.
ix) Exceeding jurisdiction: - The authority is required to exercise the power within
the limits or the statute. Consequently, if the authority exceeds this limit, its action
will be held to be ultravires and, therefore, void.
Failure to exercise Discretion
In the following condition the authority is taken to have failed to exercise its
discretion and its
decision or action will be bad.
i) Non-application of mind: - Where an authority is given discretionary powers it is
required to exercise it by applying its mind to the facts and circumstances of the
case in hand. If he does not do so it will be deemed to have failed to exercise its
discretion and its action or decision will be bad.
ii) Acting under Dictation: - Where the authority exercises its discretionary power
under the instructions or dictation from superior authority. It is taken, as non-
exercise of power by the authority and its decision or action is bad. In such
condition the authority purports to act on its
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own but in substance the power is not exercised by it but by the other authority.
The authority entrusted with the powers does not take action on its own judgment
and does not apply its mind.
iii) Imposing fetters on the exercise of discretionary powers: - If the authority
imposes fetters on its discretion by announcing rules of policy to be applied by it
rigidly to all cases coming before
it for decision, its action or decision will be bad. The authority entrusted with the
discretionary power is required to exercise it after considering the individual cases
and if the authority imposes fetters on its discretion by adopting fixed rule of
policy to be applied rigidly to all cases coming
before it, it will be taken as failure to exercise discretion and its action or decision
or order will
be bad.
Illegality, Irrationality, Procedure Impropriety
Illegality
A decision may be illegal for many different reasons. There are no hard and fast
rules for their
classification, but the most common examples of cases where the courts hold
administrative
decisions to be unlawful are the following:
• The decision is made by the wrong person (unlawful sub-delegation)
• Jurisdiction: Error of law or error of fact
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• The decision maker went beyond their power: ultra vires

• Ignoring relevant considerations or taking irrelevant considerations into account
• Fettering discretion
Irrationality
Under Lord Diplock's classification, a decision is irrational if it is "so outrageous in
its defiance of logic or of accepted moral standards that no sensible person who
had applied his mind to the question could have arrived at it.
Procedural impropriety
A decision suffers from procedural impropriety if in the process of its making the
procedures prescribed by statute have not been followed or if the "rules of natural
justice" have not been adhered to.
The Doctrine of Legitimate Expectation
When an individual seeks judicial review on the ground of his legitimate
expectation being defeated, Courts have to first determine whether there existed a
legitimate expectation. A legitimate expectation is said to arise “as a result of a
promise, representation, practice or policy made, adopted or announced by or on
behalf of government or a public authority." Therefore it extends to a benefit that
an individual has received and can legitimately expect to continue or a benefit that
he expects to receive.
When such a legitimate expectation of an individual is defeated, it gives that

person the locus standi to challenge the administrative decision as illegal. Thus
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even in the absence of a substantive right, a legitimate expectation can enable an

individual to seek judicial review.
Procedural and Substantive aspects of the doctrine of legitimate expectation
The doctrine of legitimate expectation has two aspects: procedural as well as

substantive. In Schimdt, Lord Denning introduced procedural legitimate
expectation particularly with reference to the application of principles of natural
justice to administrative action and it is now well established in India. Principles of
natural justice will apply to administrative actions when there has been a promise
or a long standing practice for following the same. Procedural legitimate
expectation refers to the expectation of an individual that he has a right to a certain
procedure, such as the right to a hearing, as a result of the behavior of the public
body.
The substantive aspect of the doctrine is still in its formative stages in

India. Substantive legitimate expectation refers to a scenario where an individual
is seeking for a substantial benefit which rose out of the legitimate expectation he
had. The legal position of substantive legitimate expectation has been varying. The
English Courts have been pronouncing judgments which recognize the need to
protect substantive legitimate expectation as well as judgments to the opposite
effect.
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However, the position of substantive legitimate expectation must now be seen in

the light of Coughlan. ] The brief facts of this case are as follows. Coughlan and
other patients were initially being cared for in Newcourt Hospital. They were
persuaded to shift to Mordon House by express promises by the Health Authority
that they could live there “for as long as they choose" and that Mordon House was
better suited to their needs. The authorities decided to close down Mordon House
and relocate the patients to other hospitals after considering the promise it had
made to the residents and weighing all options available to it. Coughlan challenged
this decision as it was in breach of the promise made to her.
The Wednesbury test was rejected as a test for judicial review of legitimate
expectation of this nature and the test of abuse of power was
established. According to the Court of Appeal, “[The Courts task] is then limited
to asking whether the application of the policy to an individual who has been lead
to expect something different is a just exercise of power" . This test in effect gave
a much larger scope for application for violation of substantive legitimate
expectation to succeed. Had the Wednesbury test been applied, the chances of
success in a judicial review would be almost non-existent.
Origin and Evolution
An ombudsman is a person who acts as a trusted intermediary between either the

state, elements of state or an organization, and some internal or external
constituency, while representing not only but mostly the broad scope of constituent
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interests. Ombudsman is etymologically rooted in the Old

Norse word umboðsmaðr, essentially meaning “representative”. In its most
frequent modern usage, an ombudsman is an official, usually appointed by
the government or by parliament but with a significant degree of independence,
who is charged with representing the interests of the public by investigating and
addressing complaints reported by individuals.
Whether appointed by the legislature, the executive, or an organization, the typical

duties of an ombudsman are to investigate constituent complaints and attempt to
resolve them, usually through recommendations or mediation. Ombudsmen
sometimes also aim to identify systemic issues leading to poor service or breaches
of people’s rights. At the national level, most ombudsmen have a wide mandate to
deal with the entire public sector, and sometimes also elements of the private
sector such as contracted service providers. In some cases, there is a more
restricted mandate, for example with particular sectors of society. More recent
developments have included the creation of specialised Children’s
Ombudsman and Information Commissioner agencies.
Use of the term began in Sweden, with the Swedish Parliamentary Ombudsman
instituted by the
Instrument of Government of 1809, to safeguard the rights of citizens by
establishing a supervisory agency independent of the executive branch. The
predecessor of the Swedish Parliamentary Ombudsman was the Office of Supreme
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Ombudsman ("Högste Ombudsmannen"), which was established by the Swedish

King, Charles XII, in 1713The Parliamentary Ombudsman is the institution that the
Scandinavian countries subsequently developed into its contemporary form, and
which subsequently has been adopted in many other parts of the world. The word
ombudsman and its specific meaning have since been adopted in various
languages, including Spanish, Dutch and Czech. The German language uses
Ombudsmann, Ombudsfrau and Ombudsleute. Notable exceptions are French and
Finnish, which use translations instead. Modern variations of this term include
"ombud," "ombuds," "ombudsperson," or "ombudswoman," and the conventional
English plural is ombudsmen.
An ombudsman or public advocate is usually appointed by the government or by
parliament, but with a significant degree of independence, who is charged with
representing the interests of the public by investigating and addressing complaints
of maladministration or a violation of rights. In some nations an Inspector General,
Citizen Advocate or other official may have duties similar to those of a national
ombudsman, and may also be appointed by a legislature. Below the national level
an ombudsman may be appointed by a state, local or municipal government.
Unofficial ombudsmen may be appointed by, or even work for, a corporation such
as a utility supplier, newspaper, NGO, or professional regulatory body.
The typical duties of an ombudsman are to investigate complaints and attempt to
resolve them, usually through recommendations (binding or not) or mediation.
Ombudsmen sometimes also aim to identify systematic issues leading to poor
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service or breaches of people's rights. At the national level, most ombudsmen have
a wide mandate to deal with the entire public sector, and sometimes also elements
of the private sector (for example, contracted service providers). In some cases,
there is a more restricted mandate, for instance, with particular sectors of society.
More recent developments have included the creation of specialized Children's
Ombudsman and Information Commissioner agencies. In some jurisdictions an
ombudsman charged with handling concerns about national government is more
formally referred to as the "Parliamentary Commissioner" (for e.g. the United
Kingdom Parliamentary Commissioner for Administration, and the Western
Australian state Ombudsman).
In many countries where the ombudsman's responsibility includes protecting
human rights, the ombudsman is recognized as the national human rights
institution. The post of ombudsman had by the end of the 20th century been
instituted by most governments and by some intergovernmental organizations such
as the European Union.
Lokpal and Lokayukta Act and other Anti corruption Bodies and their
Administrative Procedures
Lokpal and Lokayukta
The Indian Lokpal is synonymous to the institution of Ombudsman existing in the
Scandinavian countries. The office of the ombudsman originated in Sweden in
1809 AD, and adopted eventually by many nations as a bulwark of democratic
government against the tyranny of officialdom. Ombudsman is a Swedish word
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that stands for an officer appointed by the legislature to handle complaints against
administrative and judicial action. Traditionally the ombudsman is appointed based
on unanimity among all political parties supporting the proposal.
The incumbent, though appointed by the legislature, is an independent functionary-
independent of all the three organs of the state, but reports to the legislature. The
Ombudsman can act both on the basis of complaints made by citizens, or suo moto.
It can look into allegations of corruption
as well as mal-administration. The existing devices for checks on elected and
administrative officials have not been effective, as the growing instances of
corruption cases suggest.
The Central Vigilance Commission is designed to inquire into allegations of
corruption by administrative officials only. The CBI, the premier investigating
agency of the country, functions under the supervision of the Ministry of Personnel
Public Grievances and Pensions (under the Prime Minister) and is therefore not
immune from political pressures during investigation.
Indeed, the lack of independence and professionalism of CBI has been castigated
by the Supreme Court often in recent times. All these have necessitated the
creation of Lokpal with its own investigating team in earliest possible occasion.
Hence, there is a need for a mechanism that would adopt very simple, independent,
speedy and cheaper means of delivering justice by redressing the grievances of the
people. Working of Ombudsmam in various countries suggests that the institution
of ombudsman has very successfully fought against corruption and unscrupulous
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administrative decisions by public servants, and acted as a real guardian of

democracy and civil rights.
The Lokpal
In early 1960S, mounting corruption in public administration set the winds
blowing in favour of an Ombudsman in India too. The Administrative Reforms
Commission (ARC) set up in 1966 recommended the constitution of a two-tier
machinery of a Lokpal at the Centre, and Lokayukts in the states. The ARC while
recommending the constitution of Lokpal was convinced that such an institution
was justified not only for removing the sense of injustice from the minds of
adversely affected citizens but also necessary to instill public confidence in the
efficiency of administrative machinery. Following this, the Lokpal Bill was for the
1 first time presented during the fourth Lok Sabha in 1968, and was passed there in
1969. However, while it was pending in the Rajya Sabha, the Lok Sabha was
dissolved, resulting the first death of the bill. The bill was revived in 1971, 1977,
1985, 1989, 1996, 1998, 2001 and most recently in 2004. Each time, after the bill
was introduced to the house, it was referred to some committee for improvements a
joint committee of parliament, or a departmental standing committee of the Home
Ministry and before the government could take a final stand on the issue the house
was dissolved. The Lokpal was visualized as the watchdog institution on
ministerial probity. Broadly the provisions of different bills empowered the Lokpal
to investigate corruption cases against political persons at the Central level. The
purpose of Lokpal is to provide speedy, cheaper form of justice to people Lokpal
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is to be a three member body with a chairperson who is or has been a chief justice
or judge of the Supreme Court; and its two other members who are or have been
judges or chief justices of high courts around the country.
In order to ensure the independence of functioning of the august office, the
following provisions have been incorporated:
• Appointment is to be made on the recommendation of a committee.
• The Lokpal is ineligible to hold any office of profit under Government of India or
of any state, or similar such posts after retirement.
• Fixed tenure of three years and can be removed only on the ground of proven
misbehavior or incapacity after an inquiry made by CJI and two senior most judges
of SC
• Lokpal will have its own administrative machinery for conducting investigations.
• Salary of Lokpal is to be charged on the Consolidated Fund of India.
• PM relation to latters functions of national security and public order. Complaints
of offence committed within 10 years from the date of complaint can be taken up
for investigation, not beyond this period.
• Any person other than a public servant can make a complaint. The Lokpal is
supposed to complete the inquiry within a period of six months. The Lokpal has
the power of a civil court to summon any person or authority. After investigation,
the ombudsman can only recommend actions to be taken by the competent
authority.
• He can order search and seizure operations.
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• He shall present annually to the President the reports of investigation and the
latter with the action take report has to put it before the both houses of parliament.
• It may be noted that the Lokpal is supposed to investigate cases of corruption
only, and not address himself to redressing grievances in respect of injustices and
hardship caused by maladministration.
Lokayuktas in the States
The power, function and jurisdiction of Lokayuktas are not uniform in the country.
In some states it has been applicable to all the elected representatives including the
CM. In some other states legislators have been deliberately kept out of his purview.
Lokayuktas have not been provided with their independent investigative machinery
making them dependent on the government agencies, which leaves enough scope
for the politicians and the bureaucrats to tinker with the processes of investigation.
Central Bureau of Investigation
The Central Bureau of Investigation (CBI ) , functioning under Dept. of Personnel,
Ministry of
Personnel, Pension & Public Grievances, Government of India, are the premier
investigating police agency in India. It is an elite force playing a major role in
preservation of values in publiclife and in ensuring the health of the national
economy. It is also the nodal police agency in India which coordinates
investigation on behalf of Interpol Member countries. The CBI has to investigate
major crimes in the country having interstate and international ramifications. It is
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also involved in collection of criminal intelligence pertaining to three of its main

areas of operation, viz., Anti-Corruption, Economic Crimes and Special Crimes.
The Anti-Corruption Division of the CBI has handled cases against Chief
Ministers, Ministers, Secretaries to Government, Officers of the All India Services,
CMDs of Banks, Financial Institutions, Public Sector Undertakings, etc.
CBI investigations have a major impact on the political and economic life of the
nation. The following broad categories of criminal cases are handled by the CBI:
• Cases of corruption and fraud committed by public servants of all Central Govt.
Departments, Central Public Sector Undertakings and Central Financial
Institutions.
• Economic crimes, including bank frauds, financial frauds, Import Export &
Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural
property and smuggling of other contraband items etc.
• Special Crimes, such as cases of terrorism, bomb blasts, sensational homicides,
kidnapping for ransom and crimes committed by the mafia/the underworld.
The CBI is headed by a Director. The other police ranks in CBI are Special
Director/Addl. Director, Joint Director, Dy. Inspr. General of Police, Inspector,
Sub-Inspector, Assistant Sub- Inspector, Head Constable and Constable.
72
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School of Law
73

Administrative Law

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Administrative Law

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Chanderprabhu Jain College of Higher Studies

Class : B.A. LLB /BBA LLB

Paper Code : 208

Subject : Administrative Law

Nature, Scope of development administrative law

It is very difficult to say precisely where legislation ends and administrative

Scope of Administrative law

individual – individual relationship. However, if it is an administrative contract it

exceeded, or otherwise unlawfully exercised? Hence, administrative law is not

1956, the Banking Companies (Acquisition and Transfer of undertakings) Act,

similar principles of proportionality and legitimate expectations. Dicey's views on

A V Dicey stated three principles to the term 'Rule of Law'.

1. Supremacy of Law 2. Equality before Law 3. Predominance of of Legal spirit

• The Rule of Law impacted the Administrative Law of England while

• 'Supremacy of Law' is the central and most characteristic feature of Common

• Law is the absolute supreme and predominant as opposed to influence of

• Helped to make administrative authorities confine to their limits.

• Dicey thesis was not completely accepted even in his era.

• He misunderstood the real nature of droit administratif which was successful in

Doctrine of Separation of Powers

“Power corrupts and absolute Power tends to corrupt absolutely.”

The Doctrine of “Separation of Powers”, a vintage product of scientific political

-Legislature –Executive -Judiciary

The doctrine of separation of powers envisages a tripartite system. Powers are

Later Rousseau also supported the said theory propounded by Montesquieu.

Writing in 1748, Montesquieu said

Relationship between Constitutional Law and Administrative Law

A non-legislative and a purely administrative action having no statutory basis will

An administrative act, whether statutory or non-statutory, will be void if it

Introduction:- Montesquieu, a French scholar, conceived the principle of separation

What is delegated legislation?

In simple terms it means-‘when the function of legislation is entrusted to organs

Need for delegation legislation or reasons for the growth of delegated

(d) Administration through Administrative Agencies: Modern government is

the Electricity Commission or the Telecom Regulatory Authority of India(TRAI)

(e) Meeting Emergency Situations: In times of emergency, the government may

Classification of delegation legislation:

Delegated legislation may be classified as follows:

(i) Power to bring an Act into operation;

(iii) Power to extend the life of an Act; and

Constitutionality of delegated legislation –

(i) that it is ultra vires the enabling Act; and

(ii) that it is ultra vires the Constitution.

Control Mechanism of administrative rule making in India

Control Mechanism of delegated Legislation (three types)

In a parliamentary democracy it is the function of the legislature to legislate, but if

In India, ‘parliamentary control’ is implicit as a normal constitutional function

1. Initial stage (At the stage of delegation of power)

Second stage: (A) Direct Control, and (B) Indirect Control.

(c) Affirmative Laying: The technique may take two shapes:

Legal consequences of non compliance with the laying provision

Test for mandatory.

Test for Directory

The Supreme Court observed two considerations for regarding a provision as

(B)Indirect Control: This control is exercised by Parliament through its

3. Whether it conations imposition of tax.

4. Whether it directly or indirectly bars the jurisdiction of the court.

5. Whether there has been unjustified delays in its publication or laying.

6. Whether it is retrospective in nature.

7. Whether it involves expenditure from the consolidated fund.

8. Whether it is safeguard of principle of natural justice.

Executive legislating under delegated legislation is ordinarily free from rigid

Delegated legislation may be challenged on the ground that it has been in