AL -AMEEN COLLEGE OF LAW

BANGALORE
MODEL ANSWER PAPER 2019
6TH SEM 5YRS LLB
SUBJECT : ADMINISRTRATIVE LAW

Duration: 3 Hours Max Marks:100

Instructions to Candidates:
1. Answer Q.No 9 and any five of the remaining questions .
2. Q.No 9 carries 20 marks and the remaining questions carry 16 marks each .
3. Answers should be written in either in English or Kannada.

1. Define Administrative Law and explain the nature and scope of Administrative
Law.
Definition of Administrative Law

Administrative law is the body of law that governs the activities of administrative
agencies of the government which comprise of rule making or legislation(when
delegated to them by the Legislature as and when the need be),adjudication(to
pronounce decisions while giving judgements on certain
matters),implementation/enforcement of public policy.

Administrative law is the law that governs the administrative actions. As per Ivor
Jennings- the Administrative law is the law relating to administration. It determines the
organisation, powers and duties of administrative authorities. It includes law relating to
the rule-making power of the administrative bodies, the quasi-judicial function of
administrative agencies, legal liabilities of public authorities and power of the ordinary
courts to supervise administrative authorities. It governs the executive and ensures that
the executive treats the public fairly.

Administrative law is a branch of public law. It deals with the relationship of

individuals with the government. It determines the organisation and power structure of
administrative and quasi-judicial authorities to enforce the law. It is primarily
concerned with official actions and procedures and puts in place a control mechanism
by which administrative agencies stay within bounds.
However, administrative law is not a codified law. It is a judge-made law which evolved
over time.

THE GROWTH OF ADMINISTRATIVE LAW

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ENGLAND

In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of
Administrative law. Hence, the numerous statutory discretionary powers given to the
executives and administrative authorities and control exercised over them were all
disregarded to be able to form a separate branch of law by the legal thinkers. Until the
20th Century, Administrative law was not accepted as a separate branch of law. It was
only later that the existence of Administrative law came to be recognised.

The Lord Donoughmore Committee, in 1929, recommended for better publication and
control of subordinate legislation. The principle, King can do no wrong, was abolished
and the scope of Administrative law expanded by virtue of the Crown Proceeding Act
in 1947 which allowed initiating civil proceedings against the Crown as against any
private person.

In 1958, Tribunals and Inquiries Act was passed for better control and supervision of
Administrative Decisions.

Breen v Amalgamated Engineering Union [1971] 2 QB 175 was the first case wherein
the existence of Administrative law in the United Kingdom was declared.

UNITED STATES OF AMERICA

In the United States of America, the existence of administrative law and its growth was
ignored until it grew up to become the fourth branch of the State. By then many legal
scholars like Frank Goodnow and Ernst Freund had already authored a few books on
Administrative law.

It was in 1933 that a special committee was appointed to determine how judicial control
over administrative agencies could be exercised. Thereafter, in 1946 The
Administrative Procedure Act was passed which provided for judicial control over
administrative actions.

INDIA

The Mauryans and the Guptas of ancient India had a centralised administrative system.
It was with the coming of the British that Administrative law in India went through a
few changes. Legislations regulating administrative actions were passed in British
India.

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 After independence, India adopted to become a welfare state, which henceforth
increased the state activities. As the activities and powers of the Government and
administrative authorities increased so did the need for ‘Rule of Law’ and ‘Judicial
Review of State actions’.

Henceforth, if rules, regulations and orders passed by the administrative authorities

were found to be beyond the authorities legislative powers then such orders, rules and
regulations were to be declared ultra-vires, unconstitutional, illegal and void.

REASONS FOR GROWTH OF ADMINISTRATIVE LAW

1. THE CONCEPT OF A WELFARE STATE

2. As the States changed their nature from laissez-faire to that of a welfare state,
government activities increased and thus the need to regulate the same. Thus, this
branch of law developed.
3. THE INADEQUACY OF LEGISLATURE
4. The legislature has no time to legislate upon the day-to-day ever-changing needs of the
society. Even if it does, the lengthy and time-taking legislating procedure would render
the rule so legislated of no use as the needs would have changed by the time the rule is
implemented.
5. Thus, the executive is given the power to legislate and use its discretionary powers.
Consequently, when powers are given there arises a need to regulate the same.
6. THE INEFFICIENCY OF JUDICIARY
7. The judicial procedure of adjudicating matters is very slow, costly complex and formal.
Furthermore, there are so many cases already lined up that speedy disposal of suites is
not possible. Hence, the need for tribunals arose.
8. SCOPE FOR THE EXPERIMENT
9. As administrative law is not a codified law there is a scope of modifying it as per the
requirement of the State machinery. Hence, it is more flexible. The rigid legislating
procedures need not be followed again and again.

DIFFERENCE BETWEEN ADMINISTRATIVE LAW AND CONSTITUTIONAL

LAW

There are significant differences between Administrative law and Constitutional law.

A Constitution is the supreme law of the land. No law is above the constitution and hence
must satisfy its provisions and not be in its violation. Administrative law hence is
subordinate to constitutional law. In other words, while Constitution is the genus,
administrative law is a species.

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Constitution deals with the structure of the State and its various organs. Administrative law,
on the other hand, deals only with the administration.

While Constitution touches all branches of law and deals with general principles relating
to organisation and powers of the various organs of the State; administrative law deals only
with the powers and functions of the administrative authorities.

Simply speaking the administrative authorities should first follow the Constitution and then
work as per the administrative law.

ADMINISTRATIVE LAW IN INDIA

In India on the other hand by the written Constitution power of Judicial Review is on Supreme
Court and High court the same can be challenged as Ultra Vires. Testimonies of the validity
of such challenges are also defined as, 1. The action must be taken in accordance with rules
and regulations, 2. Rules regulation and parent acts are also to be consonance to the
Amendment, such amendment should be conformity with Basic structure.

The nature of administrative law is concerned with safeguarding that public decision-
makers act within the law and are, on this basis, accountable before the law, its development
is due largely to a desire on the part of the courts to restore the balance of power and to
safeguard the rights and interests of citizens. Administrative law is also concerned about
ensuring there will be an element of fairness operating in public decision making and
generally ensuring proper administration. This is not only for the advantage of the
individual citizen but it is for the advantage of government also.

The purpose of this writing is to discuss the nature and scopes of Administrative law and
to find out how it can be differentiated from Constitutional law.

Definition of Administrative Law

Administrative law deals with the legal control of government and related administrative
powers. In other words, we can define administrative law as the body of rules and
regulations and orders and decisions created by administrative agencies of government.

Administrative law is part of the branch of law commonly referred to as public law, the law
which regulates the relationship between the citizen and the state and which involves the
exercise of state power. So, it is a part of the legal framework for public administration.
Public administration is the day-to-day implementation of public policy and public
programs in areas as diverse as immigration, social welfare, defense, and economic

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regulation—indeed in all areas of social and economic life in which public programs
operate.

Administrative law consists of complaints respecting government action that adversely

affects an individual. Thus, administrative law involves determining the legality of
government actions. There is a two-fold analysis: the legality of the specific law itself and
the legality of particular acts purportedly authorized by the specific law.

Governments cannot perform any act by itself. Governments act through government
officials who must act within certain limitations. A government’s power to act comes from
legislation. Thus, government officials must act within the parameters (or scope) of such
legislation which give their actions lawful authority. These are lawful actions. If
government officials act outside the scope of their lawful authority and individuals are
affected by these acts, then the principles of administrative law provide individuals with
the ability to seek judicial review of the administrative action and possible remedies for the
wrongful acts.

Nature and Scope of Administrative Law

Administrative law determines the organization, powers and duties of administrative

authorities. The emphasis of Administrative Law is on procedures for formal judgment
based on the principles of Natural Justice and for rule making. Administrative law also
determines the nature and scope of the powers deliberated to the government official by the
specific legislation. Through legislation, the Parliament delegate specific powers as well as
duties to government officials to enable them to act on behalf of the government.

The concept of Administrative Law is founded on the following principles:

a) Power is conferred on the administration by law

b) No power is absolute or uncontrolled howsoever broad the nature of the same might be

c) There should be reasonable restrictions on exercise of such powers depending on the

situation

The Administrative law deals with the structure, functions and powers of the
Administrative structures. It also lays down the methods and procedures which are to be
followed by them during the course of remedies which are available to the persons whose
rights and other freedoms are damaged by their operations. Administrative law specifies
the rights and liabilities of private individuals in their dealings with public officials and
also specifies the procedures by which those rights and liabilities can be enforced by those
private individuals. It provides accountability and responsibility in the administrative

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 functioning. Also there are specified laws and rules and regulations that guide and direct
the internal administration relations like hierarchy, division of labor etc.

General Principles of Administrative Law

In the administrative law context, the first step is to determine the legal validity or authority
of the action by the government official. This involves looking at the basis of the legal
authority to act, that is, the specific law that gives that administrator the lawful authority to
act. Constitutional law essentially deals with who has the ability to make laws.
Administrative law deals with the government officials who have been empowered by these
laws to act. Therefore, there is a close relationship between constitutional and
administrative law. Specifically, if the law that empowered the government official to act
was itself found to be unconstitutional, and therefore invalid, then any actions by the
government official under that law will also be invalid. Consequently, this may result in a
legal remedy for an individual adversely affected by this action.

2. “AUDI ALTERM PARTEM IS SINE QUA NON OF FAIR HEARING”.

DISCUSS WITH THE HELP OF DECIDED CASES

Introduction:

Natural justice is envisaged in administrative law for ensuring fair exercise of power by
administrative agencies. Fair exercise of the power of administration is possible when the
power is used according to fair procedure. The universal rule of fair procedure is audi alteram
partem-Hear the other party. Thus, hearing means natural justice or fairness .The principles of
natural justice or fundamental rules of procedure for administrative action are neither fixed
nor prescribed in any code.

Meaning of Natural Justice:

It is not possible to define precisely and scientifically the expression natural justice. Yet the
principles of natural justice are accepted and enforced.
In Ridge Vs. Baldwin case Lord Reid observed: “in modern times opinions have sometimes
been expressed to the effect that natural justice is so vague as to be practically meaningless.
But I would regard these as tainted by the perennial fallacy that because something cannot be
cut and dried or nicely weighed or measure therefore it does not exist”.

Audi Alteram Partem or the rule of fair hearing ( Hear the other side)
The audi alteram partem rule means that no should be condemned unheard. This the
second fundamental principle of natural justice and hence a basic requirement of rule of law.
According to de Smith” A party is not to suffer in person or in purse without an opportunity of

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being heard”. It is the first principle of civilized jurisprudence and is accepted by the laws of
Men and God. In short the principle is that before an order is passed against any person
reasonable opportunity of being heard must be afforded to him.
This rule insists that the affected person must be given an opportunity to produce evidence in
support of his case. He should be disclosed the evidence to be utilized against him and should
be given an opportunity to rebut the evidence produced by the other party.
Generally, the maxim includes two ingredients 1. notice and 2.hearing.

1. Notice:
A basic principle of natural justice is that before any action is taken, the affected person
must be given notice to show cause against the proposed action and seek his explanation.
It is a sine qua non of fair hearing. Any order passed without giving notice is against the
principles of natural justice and is void ab intio. It is not enough that notice in a given case
be given. It must be adequate also. The question of adequacy of notice depends upon the
facts and circumstances of each case. However, a notice in order to be adequate must
contain the following;
1. Time, place and nature of hearing.

2. Legal authority and jurisdiction under which hearing is to be held.

3. Matter of fact and Law as regards changes.

In Punjab National Bank v. All India Bank Employees Federation Air 1960 , in this
case , notice did not contain the charges against which fine was imposed . The
supreme court held the notice defective and quashed the fine.

The object of giving notice is to provide an opportunity to the person so that he can
equip himself to defend his case. Any order passed without giving a notice is against
the principles of natural justice.

In Board of High school vs Kumari Chitra 1970 , the petitioner appeared for
examination . But the board , without giving notice cancelled the examination on
the ground of shortage of attendance. The petitioner was not given an opportunity
of being heard. The board contended that giving show notice would not serve the
purpose since the evidence ( shortage of attendance) is borne on the record. The
Supreme court rejected the contention of the Board and held the action as violative
of the principles of natural justice . The principles of natural justice must be
observed irrespective of the reason , whether the purpose would be served or not.

b. Reasonable opportunity: More over. The notice must give a reasonable

opportunity to comply with the requirements mentioned in it. In state of Madhya
Pradesh and others Vs. Makers Development Service Pvt Ltd. The High Court
declared the entire Act invalid without issuing notice or calling upon the State

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 Government to file its counter. The Supreme Court held that the order of the high
court is liable to be set aside.

2. Hearing:

the party concerned must be given an opportunity of being heard before any adverse
action is taken against him.

Ingredients of fair Hearing;

A hearing will be treated as fair hearing if the following conditions are satisfied:
1. Adjudicatory authority receives all the relevant material produced by the
individual.
2. The Adjudicatory authority discloses the individual concerned evidence or
material, which it wishes to use against him.
3. The Adjudicatory authority must disclose all the material placed before it and
must give reasonable opportunity to the affected interest to submit their case.

Copper Vs. Wandsworth Board of Works. The Board had power to demolish any
building without giving an opportunity of hearing if it was erected without prior
permission. The Board issued an order under which the house of the plaintiff was
demolished. The action was brought against the Board because it had used that
power without giving the owner an opportunity of being heard. Although the action
of the Board was not in violation of the statutory provision, the court held that
Board’s power was subject to the qualification that no man can be deprived of his
property without having an opportunity of being heard.

In Olga Tellis Vs. Bombay municipal Corporation under the statue the
Commissioner was empowered for removal of construction without notice.
However, the Court held that it was merely an enabling provision and not a
command not to issue notice before demolition of structure. The discretion was,
therefore, required to be exercised according to the principles of natural justice. In
the same way when admissions were given to certain students, but the candidates
who were so admitted were not impelled aspirants. The court ruled that their
admissions were not to be cancelled behind their back.

In Maneka Gandhi Vs. Union of India the passport of the petitioner was impounded
by the Government of India in public interest. No opportunity was afforded to the
petitioner before taking the impugned action. The Supreme Court held that the order
was violative of the principles of natural justice.

Natural Justice is an expression of English common law , and involves a procedural

requirement of fairness . The principles of natural justice have a great significance in
administrative law . The principles of natural justice are not embodied rules and are not
codified , they are Judge-made rules and are regarded as counterpart of procedural due

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 process. Among st the principles of natural justice Audi Alteram Partem is very
important and denying this right is itself a prejudice .

3. WHAT IS DELEGATED LEGISLATION? WHAT ARE THE CONSTITUTIONAL

LIMITATIONS ON THE DELEGATION OF LEGISLATIVE POWER IN INDIA?

Introduction:

Delegated legislation is allowing bodies below the parliament to pass their own legislation.
There are three main forms of delegated legislation they are, statutory instruments, by-laws
and Orders in Council. Statutory instruments are constructed by the Government departments.
For example, the Parent Act permit’s the parliament about how legislation can be written and
handle with. They are also engaged in the other Commonwealth countries other than the UK
such as Canada. By-laws are created by the local authorities which ’have to be approved by the
central Government’. For example, the smoking ban in public areas by law because other local
authorities can apply these regulations about public attitudes. Orders in Council are made by
the government in an emergency, concerning Government departments.

Delegated Legislation is deemed necessary for a number of reasons. Firstly, the parliament
does not have the time to deliberate and debate every detail of complicated rules. Delegated
legislation allows laws to be made quickly than Parliament as Parliament does not sit all the
time and its procedure is rather slow because each Bill has to pass through all the stages.
Another reason why delegated legislation is necessary is because MP’s do not frequently have
the technical ability required. Knowledge is required for example, at work for safety or when
carrying out difficult taxation proposals, this is where delegated legislation can use their
professionals in their favoured topics. Furthermore, for the local individuals it is vital that they
recognise and take into account their needs. The democratic bodies have important powers to
make delegated legislation . It can also be easily revoked so that legislation can be updated
frequently for the such as concerning welfare benefits. Delegated legislation comes into great
benefit when problems occur concerning the result of a statue.

There are a numerous critical reasons why it is necessary to have control over delegated
legislation . Taking into account that delegated legislation is made by elected representatives,
individuals have the aptitude to pass delegated legislation. In this case, a by-law prohibited an
indecent song which was held by the court as invalid. There are a number of cases where
delegated legislation has come into power to abstain damage to authorities. A criticism of
delegated legislation is that too often power is given to other individuals rather than those who
had power at the beginning. Also, with access delegated legislation critics have argued that
there is overuse in the law.

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Delegated legislation is controlled by the Parliament and the judiciary. Overall, the Parliament
has control along with statutory committees who take into account the delegated powers made
by a Bill. Using the negative resolution procedure statutory instruments can become legislation
in either two ways. One of the ways it commences is when after the statutory instruments is
written, it is shown to Parliament. However, if after forty days there are no counter arguments
it instantly becomes law, if there is some concern then it is debated upon. The other procedure
is more oppressive as the Parliament does not amend any statutory instruments in fact only one
out of ten instruments are passed under this procedure. This is because this situation has to be
debated upon and by both Houses within twenty-eight to forty days. There are disadvantages
to this as it may take longer for Parliament to raise any issues especially from other parties. In
reality, it’s highly unlikely for the Government not to reach a majority when so many votes are
taken into account.

There is rapid growth of administrative legislation. The function of the executive is to

administer the law enacted by the legislature, and in the ideal state, the legislative power must
be exercised exclusively by the legislators who are directly responsible to the electorate. As a
matter of fact, apart from pure administrative functions, the executive performs many
legislative and judicial functions also. Therefore, it is said that delegated legislation is
multitudinous that a statute book would not only be incomplete but misleading unless it be read
along with delegated legislation which amplifies and supplements the law of the land.
Mukhejee:
“Delegated legislation is an expression which covers a multitude of confusion. It is an excuse
for the legislators, a shield for the administrators and a provocation to the constitutional
jurists...”
A simple meaning of the expression delegated legislation is a sunder:
“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”.

Constitutional limitations on the delegation of legislative power:

Even though there is no specific bar in the Constitution of India against the delegation of
legislative power by the legislature to the executive, it is now well settled that essential
legislative functions cannot be delegated by the legislature to the executive. Some of the
functions which cannot be delegated are also called as impermissible delegation. Some of them
are as follows:
1. Essential legislative functions: Legislative policy must be laid down by the legislature
itself and by entrusting this power to the executive; the legislature cannot create a
parallel legislature.
2. Repeal of law: Power to repeal a law is essentially a legislative function, and therefore,
delegation of power to the executive to repeal a law is excessive delegation and is ultra
vires.
3. Modification: power to modify the act in its important aspects is an essential legislative
function and, therefore, delegation of power to modify an Act without any limitation is

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 not permissible. However, if the changes are not essential in character, the delegation
is permissible.
4. Exemption: The aforesaid principle applies in case of exemption also, and the
legislation cannot delegate the power of exemption to the executive without laying
down the norms and policy for the guidance of the latter.
5. Removal of difficulties: Under the guise of enabling the executive to remove
difficulties, the legislature cannot enact a Henry VIII Clause and thereby delegate
essential legislative functions to the executive, which could not otherwise have been
delegated.
6. Retrospective operation: The legislature has plenary power of law making and in
India, parliament can pass any law prospectively or retrospectively subject to the
provisions of the Constitution. But this principle cannot be applied in the case of
delegated legislation. Giving an Act retrospective effect is essentially a legislative
function and it cannot be delegated.
7. Future Acts: The legislature can empower the executive to adopt and apply the laws
existing in other States, but it cannot delegate the power by which the executive can
adopt the laws which may be passed in future, as this is essentially a legislative function.
8. Imposition of tax: the legislature cannot empower the executive by which the
jurisdiction of courts may be ousted. This is a pure legislative function.
9. Offences and penalty: the making of a particular act into an offence and prescribing
punishment for it is an essential legislative function and cannot be delegated by the
legislature to the executive. However, if the legislature lays down the standards or
principles to be followed by the executive is defining an offence and provides the limits
of penalties, such delegation is permissible.
10. Essential legislative functions: Legislative policy must be laid down by the legislature
itself and by entrusting this power to the executive; the legislature cannot create a
parallel legislature.
11. Repeal of law: Power to repeal a law is essentially a legislative function, and therefore,
delegation of power to the executive to repeal a law is excessive delegation and is ultra
vires.
12. Modification: power to modify the act in its important aspects is an essential legislative
function and, therefore, delegation of power to modify an Act without any limitation is
not permissible. However, if the changes are not essential in character, the delegation
is permissible.
13. Exemption: The aforesaid principle applies in case of exemption also, and the
legislation cannot delegate the power of exemption to the executive without laying
down the norms and policy for the guidance of the latter.
14. Removal of difficulties: Under the guise of enabling the executive to remove
difficulties, the legislature cannot enact a Henry VIII Clause and thereby delegate
essential legislative functions to the executive, which could not otherwise have been
delegated.
15. Retrospective operation: The legislature has plenary power of law making and in
India, parliament can pass any law prospectively or retrospectively subject to the
provisions of the Constitution. But this principle cannot be applied in the case of

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 delegated legislation. Giving an Act retrospective effect is essentially a legislative
function and it cannot be delegated.
16. Future Acts: The legislature can empower the executive to adopt and apply the laws
existing in other States, but it cannot delegate the power by which the executive can
adopt the laws which may be passed in future, as this is essentially a legislative function.
17. Imposition of tax: the legislature cannot empower the executive by which the
jurisdiction of courts may be ousted. This is a pure legislative function.
18. Offences and penalty: the making of a particular act into an offence and prescribing
punishment for it is an essential legislative function and cannot be delegated by the
legislature to the executive. However, if the legislature lays down the standards or
principles to be followed by the executive is defining an offence and provides the limits
of penalties, such delegation is permissible.

The controls which are exercised over delegated legislation may be divided into three
categories:
1. Judicial control
2. Legislative control
3. Procedural control
1. Judicial control or Doctrine of ultra vires:
2. In the control mechanism, judicial control has emerged as the most outstanding
controlling measure. Judicial control over delegated legislation is exercised by
applying two tests:
(a) Substantive ultra vires and
(b) Procedural ultra vires.
Ultra vires means beyond power or authority or lack of power. An act may be said to
be ultra vires when it has been done by a person or a body of persons which is beyond
his, its or their power, authority or jurisdiction.
When an act of Legislature enacts in an excess of power, conferred on the Legislature
by the Constitution, the legislation is said to be ultra vires the Constitution. On the same
principle, when a sub ordinate legislation goes beyond what the delegate is authorised
to enact he acts ultra vires. This is known as substantive ultra vires.
Substantive ultra vires means that the delegated legislation goes beyond the scope of
the authority conferred on it by parent statute or by the constitution. It is a fundamental
principle of law that a public authority cannot act outside the powers i.e, ultra vires.
Procedural ultra vires: when a subordinate legislation fails to comply with procedural
requirements prescribed by the parent Act or by a general law, it is known as procedural
ultra vires. For eg: publication and consultation.
Power delegated by statue is limited by its terms and subordinate to the objects. The
delegate must act in good faith, reasonably, intra vires the power granted and on
relevant considerations. All his decisions, whether characterised as legislative,
administrative or quasi judicial, must be in harmony with Constitution, parent Act and
other laws of the land. They must be reasonably related to the purposes of the enabling
legislation. Judicial control over delegated legislation is exercised by applying the
doctrine of ultra vires in a number of circumstances.

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 1. Where parent act is ultra vires the Constitution.
2. Where parent Act delegated essential legislative functions
3. Where delegated legislation is inconsistent with parent Act
4. Where delegated legislation is inconsistent with general law.
5. Where delegated legislation is unconstitutional
6. Unreasonableness
7. Mala fide Bad faith
8. Sub delegation
9. Exclusion of judicial review
10. Retrospective effect.
Sometimes a parent Act or delegating statute may be Constitutional and valid and
delegated legislation may be inconsistent with the parent Act, yet the delegated
legislation may be held invalid on the ground that it contravenes the provisions of the
Constitution. It may seem paradoxical that a delegated legislation can be struck down
on this ground because if the parent Act is constitutional and delegated legislation be
ultra vires the Constitution? It was this argument which the Supreme Court was called
down to consider in Narendra Kumar Vs. Union of India. In this case the valididity
of the Non-Ferrous Metal Control Order 1958 issued under Section 3 o0f the Essential
Commodities Act 1955 was challenged as unconstitutional. The petitioners had not
challenged the validity of the parent Act. It was argued that if the enabling Act was not
considered unconstitutional, the rules made there under could be held to be
unconstitutional. Rejecting this extravagant argument, the Supreme court held that even
though a parent Act might not be unconstitutional, an order there under can still be
unconstitutional and can be challenged as violative of the provisions of the
Constitution.

In Air India Vs. Nergesh Meerza, a regulation framed by Air India provide that
services of an Air Hostess could be terminated if she because pregnant was held
arbitrary, unreasonable and violative of Articles 14 and 15 of the Constitution.

It is however, well settled that while considering constitutional validity or vires of

delegated legislation, one should start with the presumption of constitutionality of the
provision and it will be for the party challenging the validity of subordinate legislation
to satisfy the court that it is unconstitutional. Moreover, if two constructions are
possible, one which leave constitutionality of law should be preferred than the other
which would make it ultra vires.

4. Explain the concept of ‘RULE OF LAW’ and its application in India with the help of
decided cases.
The Rule of Law is one of the most fundamental aspects of modern legal systems. Simply said,
the rule says, 'howsoever high you may be; the Law is above you'. It specifies that the Law is
supreme and that no human being is higher than the authority of Law.

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Most constitutions, such as the English Constitution, the American
Constitution and India guarantee to follow the Rule of Law and hence authorities are bound to
follow it strictly. Administrative Law is largely based on this Rule.
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 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 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.

14
History
The concept was introduced by Chief Justice Sir Edward Coke during the James I rule. Sir
Coke said that the King is under God and the Law and that the Law is supreme over executive.
The term 'Rule of Law' was derived from the French phrase la principe de legalite (the
principle of legality)
The principles of Cole are developed by Dicey and are written in his book Law and the
Constitution (1885).

Dicey's Rule of Law

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.
• 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.

15
 • 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'.
• He misunderstood the real nature of droit administratif which was successful in France.

Modern Concept of Rule of Law

• Today, 'Rule of Law' is seen more as a concept of rights of citizens.

• Accepted in almost all countries outside the Communist.

Classification of Admin Action- Necessity

Administrative action is a comprehensive term and defies exact definition. In modern times the
administrative process is a by-product of intensive form of government and cuts across the
traditional classification of governmental powers and combines into one all the powers, which
were traditionally exercised by three different organs of the State. Therefore, there is general
agreement among the writers on administrative law that any attempt of classifying
administrative functions or any conceptual basis is not only impossible but also futile. Even
then a student of administrative law is compelled to delve into field of classification because
the present-day law especially relating to judicial review freely employs conceptual
classification of administrative action. Thus, speaking generally, an administrative action can
be classified into four categories:
1. Rule-making action or quasi-legislative action.

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1. Rule-decision action or quasi-judicial action.

• Rule-application action or administrative action.

1. Ministerial action

1. Rule-making action or quasi-legislative action – Legislature is the law-making organ of any

state. In some written constitutions, like the

American and Australian Constitutions, the law making power is expressly vested in the
legislature. However, in the Indian Constitution though this power is not so expressly vested
in the legislature, yet the combined effect of Articles 107 to III and 196 to 201 is that the law
making power can be exercised for the Union by Parliament and for the States by the respective
State legislatures. It is the intention of the Constitution-makers that those bodies alone must
exercise this law-making power in which this power is vested. But in the twentieth Century
today these legislative bodies cannot give that quality and quantity of laws, which are required
for the efficient functioning of a modern intensive form of government. Therefore, the
delegation of law-making power to the administration is a compulsive necessity. When any
administrative authority exercises the law-making power delegated to it by the legislature, it is
known as the rule-making power delegated to it by the legislature, it is known as the rule-
making action of the administration or quasi-legislative action and commonly known as
delegated legislation.
Rule-making action of the administration partakes all the characteristics, which a normal
legislative action possesses. Such characteristics may be generality, prospectivity and a
behaviour that bases action on policy consideration and gives a right or a disability. These
characteristics are not without exception. In some cases, administrative rule-making action may
be particularised, retroactive and based on evidence.

(ii) Rule-decision action or quasi-judicial action – Today the bulk of the decisions which
affect a private individual come not from courts but from administrative agencies exercising
ad judicatory powers. The reason seems to be that since administrative decision-making is also
a by-product of the intensive form of government, the traditional judicial system cannot give
to the people that quantity of justice, which is required in a welfare State.

Administrative decision-making may be defined, as a power to perform acts administrative in

character, but requiring incidentally some characteristics of judicial traditions. On the basis of
this definition, the following functions of the administration have been held to be quasi-judicial
functions:

17
 • Disciplinary proceedings against students.
• Disciplinary proceedings against an employee for misconduct.
• Confiscation of goods under the sea Customs Act, 1878.
• Cancellation, suspension, revocation or refusal to renew license or permit by licensing
authority.
• Determination of citizenship.
Attributes of administrative decision-making action or quasi-judicial action and the distinction
between judicial, quasi-judicial and administrative action.
(iii) Rule-application action or administrative action – Though the distinction between
quasi-judicial and administrative action has become blurred, yet it does not mean that there is
no distinction between the two. If two persons are wearing a similar coat, it does not mean that
there is no difference between them. The difference between quasi-judicial and administrative
action may not be of much practical consequence today but it may still be relevant in
determining the measure of natural justice applicable in a given situation. In A.K. Kraipak v.
Union of India, the Court was of the view that in order to determine whether the action of the
administrative authority is quasi-judicial or administrative, one has to see the nature of power
conferred, to whom power is given, the framework within which power is conferred and the
consequences.
Therefore, administrative action is the residuary action which is neither legislative nor judicial.
It is concerned with the treatment of a particular situation and is devoid of generality. It has no
procedural obligations of collecting evidence and weighing argument. It is based on subjective
satisfaction where decision is based on policy and expediency. It does not decide a right though
it may affect a right. However, it does not mean that the principles of natural justice can be
ignored completely when the authority is exercising “administrative powers”. Unless the
statute provides otherwise, a minimum of the principles of natural justice must always be
observed depending on the fact situation of each case.
No exhaustive list of such actions may be drawn; however, a few may be noted for the sake of
clarity:
1) Making a reference to a tribunal for adjudication under the Industrial Disputes Act.

Functions of a selection committee

Administrative action may be statutory, having the force of law, or non statutory, devoid of
such legal force. The bulk of the administrative action is statutory because a statute or the
Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing
directions to subordinates not having the force of law, but its violation may be visited with
disciplinary action. Though by and large administrative action is discretionary and is based on
subjective satisfaction, however, the administrative authority must act fairly, impartially and
reasonable.
Therefore, at this stage it becomes very important for us to know what exactly is the difference
between Administrative and quasi-judicial Acts.

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 Thus broadly speaking, acts, which are required to be done on the subjective satisfaction of the
administrative authority, are called ‘administrative’ acts, while acts, which are required to be
done on objective satisfaction of the administrative authority, can be termed as quasi-judicial
acts. Administrative decisions, which are founded on pre-determined standards, are called
objective decisions whereas decisions which involve a choice as there is no fixed standard to
be applied are so called subjective decisions. The former is quasi-judicial decision while the
latter is administrative decision. In case of the administrative decision there is no legal
obligation upon the person charged with the duty of reaching the decision to consider and
weigh, submissions and arguments or to collate any evidence. The grounds upon which he acts
and the means, which he takes to inform himself before acting, are left entirely to his discretion.
The Supreme Court observed, “It is well settled that the old distinction between a judicial act
and administrative act has withered away and we have been liberated from the pestilent
incantation of administrative action.
• Ministerial action – A further distillate of administrative action is ministerial action.
Ministerial action is that action of the administrative agency, which is taken as matter of duty
imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial action
involves the performance of a definitive duty in respect of which there is no choice. Collection
of revenue may be one such ministerial action.
1. Notes and administrative instruction issued in the absence of any
2. If administrative instructions are not referable to any statutory authority they cannot have the
effect of taking away rights vested in the person governed by the Act.

5. What are the exceptions to the rules of natural Justice?

Principles of Natural Justice are ultimately weighed in the balance of fairness and hence the
Courts have been circumspect in extending principles of natural justice to situations.

Exceptions To The Principles Of Natural Justice

Now it is well established preposition of Law that the Principles of Natural Justice supplements
the enacted statute with necessary implications, accordingly administrative authorities
performing public functions are generally required to adopt fair procedure and in relation to a
variety of different circumstances, we considered the content of the requirements of procedural
fairness. A person may also have legitimate expectation of fair hearing or procedural
fairness/treatment but as Natural Justice Principles is to be invoked in doing justice, where their
observance leads to injustice they may be disregarded. There are several well established
limitations on Principles of Natural Justice. Existence of certain circumstances deprives the
individual from availing the benefit of principles of natural justices, authors in this research
work undertakes to cover the circumstances in which judiciary admitted the exceptions to the
observance of Principles of Natural Justice.

Principles of Natural Justice are ultimately weighed in the balance of fairness and hence the
Courts have been circumspect in extending principles of natural justice to situations where it

19
would cause more injustice rather than justice so, where a right to be fairly heard has been
denied, it is more probably a case of bad decision than of true exception, then principles of
natural justice can be discarded. Application of the principles of natural justice can be excluded
either expressly or by necessary implication, subject to the provisions of Article 14 and 21 of
the constitution. However, along with constitutional limitations in India Common Law
exception are also preferred.

2. Common Law Exceptions to the Principles of Natural Justice:

The requirements of procedural fairness are on first appearance applicable to Judicial, Quasi-
Judicial and Administrative Proceedings, however, the decision maker may be exempt from all
or some of the procedural safeguards that would otherwise be required. Several factors may be
identified as capable of excluding the normal procedural fairness requirements in Common
Law Courts are:

(i) Exclusion in case of emergency,

(ii) Express statutory exclusion,

(iii) Where discloser would be prejudicial to public interests

(iv) Where prompt action is needed,

(v) Where it is impracticable to hold hearing or appeal,

(vi) Exclusion in case of purely administrative matters.

(vii) Where no right of person is infringed,

(viii) The procedural defect would have made no difference to the outcome.

(ix) Exclusion on the ground of ‘no fault’ decision maker.

2. (i) Exclusion in cases of Emergency:

In India it has been generally acknowledged that in cases of extreme urgency, where interest
of the public would be jeopardizes by the delay or publicity involved in a hearing, a hearing
before condemnation would not be required by natural justice or in exceptional cases of
emergency where prompt action, preventive or remedial, is needed, the requirement of notice
and hearing may be obviated. Therefore, if the right to be heard will paralyze the process Law
will exclude it.

Therefore in situations where dangerous buildings is to be demolished, or a company has to

wound up to save depositors or there is a eminent danger to peace or trade dangerous to society
is to prohibited, dire social necessity requires exclusion of elaborate process of fair hearing. In

20
the same manner where power theft was detected by officials, immediate disconnection of
supply is not violative principles of Natural Justice.

In cases of urgency or where the giving prior notice would defeat the very object the action,
where the function is purely administrative in nature and the principle of prior hearing as
required by natural justice does not apply, but prior hearing must be given where an
administrative action will result in civil consequences to the party to the dispute.

In Swadeshi Cotton mills v. Union of India the Court held that the word “immediate” in Section
18AA of the Industries (Development and Regulation) Act cannot stand in the way of the
application of the rules of the Natural Justice. U/Sec 18AA of above said Act the Central
Government can take over an industry after investigation, but U/Sec 18AA(1) the Govt. can
take over without any notice and hearing on the ground that production has been or is likely to
be affected and hence immediate action is necessary the question was whether Sec 18AA(1)
excludes the principles of Natural Justice the Govt. took the plea that since Section 18AA
clause (1) relates to emergent situations, therefore Principles of Natural Justice are excluded.
Furthermore it also contended that since Section 18A provides for hearing and Sec 18AA(1)
does not provides for conduct of hearing, consequentially parliament has excluded hearing
therein, Court rejecting these arguments held that even in emergency situations the competing
claims of ‘hurry and hearing’ are to be reconciled, no matter the application of the Audi Alterm
Partem rule at the pre-decisional stage may be a ‘short measure of fair hearing adjusted’,
attuned and tailored to exigency of the situation.

2. (ii) Express Statutory Exclusion:

An Act of Parliament may dispense with the requirements of fair procedures where they would
otherwise be required. A statute may, for example, permit the exercise of powers without
notice. In the interests of administrative efficiency and expedition, the requirements of fairness
have been excluded by statutory provisions which, for example, enable decision makers to
decline to conduct an oral hearing, or to entertain particular kinds of representations and
objections.

However, any statutory exclusion of procedural fairness will be construed strictly. Thus, where
a statutory provision did not expressly or by necessary implication exclude the right to legal
professional’s privilege, the provision was interpreted not to do so. Subordinate legislation
purporting to exclude a hearing or to hold a hearing or conduct an inquiry is conferred by a
statute, a refusal to hold the inquiry may constitute a denial of natural justice if fairness plainly
demands that a hearing be held.
In a number of cases, the view has been expressed judicially that there is no question of
invocation of natural justice, or hearing the affected party, when legislative action of an
authority is brought under the scrutiny of the Courts.

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Also in Laxmi Khandsari v. State of U.P in this case SC held that notification of UP Govt.
Sugar Cane (Control) Order, 1966 directing that no power-crusher of Khandsari unit in
reserved area of a Sugar mill will work during the period Oct 9 to Dec 1st , 1980 is legislative
in character hence Principle of Natural Justice attracted. In the same manner, Charanlal Shahu
v. U.O.I, in this case the constitutionality of the Bhopal Gas leak disaster (processing of claims)
Act, 1985 was involved. The SC held: “for legislation by parliament no principles of natural
justice is attracted, provided such legislation is within the competence of legislature”.

In Union of India v. Cynamide India Ltd. SC held that no principles of Natural Justice had been
violated when the Govt. issued a notification fixing the Prices of certain drugs. The Court
reasoned that since the notification showed from a legislative act and not an administrative one
so Principles of Natural Justice would not applied.

There are however, cases where the SC has adopted a somewhat liberal approach in the matter
of procedural safeguards to the individual affected even tough prima facie administrative
function could be characterized legislative in character. The judicial strategy in such cases is
to hold the action of administration in question as administrative. Example, in State of Assam
v. Bharat Kalabhandar, a notification issued by the executive under the defense of India rules
1962 notified certain employments as essential “for securing the public safety and for
maintaining the supplies and services necessary to the life of the community, another
notification relating to Order of payment of specific cost of living allowance to all workers
drawing pay up to Rs 400 per month and also to worker employed on daily wages in essential
services. No question about hearing in the case of the former notification was raised. However,
about the later notification, which prima facie a large number of persons and could thus be
characterized as legislative. The SC took the view that it was necessary to consult the interest
affected before its issue as its effect was to disturb settled industrial relation whether based on
contract or industrial awards. Tough, on account of the emergency the Court refrained from
holding the order as quasi-judicial, yet the whole approach of the Court shows that it would
have held so had the emergency not been there.

Where public policy demands that certain information in possession of state shall not be
disclosed, as it is in the interest of security of the state. In Malak Singh v. State of Punjab and
Haryana SC held that the maintenance of Surveillance Register by the Police is confidential
document neither the person whose name is entered in the Register nor the any other member
of the public can have excess to it. Furthermore, the Court observed that observance of the
principles of Natural justice in such a situation may defeat the very purpose of surveillance and
there is every possibility of the ends of justice being defeated instead of being served.

In S.P. Gupta v. U.O.I, where the SC held that no opportunity of being heard can be given to
an additional judge of HC before his name is dropped from being confirmed it may be pointed
out that in a country like India surveillance may provide a very serious constraint on the liberty
of the people, therefore the maintenance of the surveillance Register cannot be so utterly
administrative and non-judicial that it is difficult to conceive the application of the rules of
natural justice.

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Even Right to The Information Act, 2005 provides express provisions to protect certain
information from discloser such as

(a) Information, disclosure of which would prejudicially affect their sovereignty and integrity
of India, the security, strategic, scientific or economic interest of the State, etc

(b) information which has been barred by Court from disclosure.

(c) the information, the disclosure of which cause breach of privilege of parliament or the state
legislature.

(d) Information relating commercial confidence, IPR etc.

(e) Information available to a person in his fiduciary relationship.

(f) Information which impair the process of investigation or prosecution of offenders.

(g) Information relating copy right etc.

2. (iv) Where prompt action is needed/ exclusion in cases of interim preventive action:

Desirably, it may be to allow a hearing or an opportunity to make representations, or simply to

give prior notice, before a decision is taken, summary action may be alleged to be justifiable
when an urgent need for protecting the interests of other persons arises. There are in fact
remarkably few situations in which the enforcement powers exist. For example, interim anti-
social behavior orders made without notice are not unlawful where it is necessary for the court
to act urgently to protect the interests of a third party or to ensure that the order of the court is
effective.

There are numerous illustrations of statutory provisions which for reasons of public safety or
public health permit public authorities to interfere with property or other rights. For example:
the destruction of infected crops; the prevention of the bus lank being carried on in a manner
detrimental to the interests of the public or of depositors or other creditors; prohibition on entry
to an airport; suspension of the license of a public service vehicle seizure of obscene works;

Seizure of food suspected of not complying with food safety requirements; local authorities
may examine and test, drains and test sewers, drains and sanitary conveniences that it believes
to be defective etc,.

In the same manner if the administrative authority passed a suspension order in the nature of a
preventive action and not a final order, the application of the principles of natural justice may
be excluded. In Abhay Kumar v. K Srinivasan, the institution passed an Oder debarring the
student from entering the premises of the institution and attending classes till the pendency of
a criminal case against him for stabbing a co-student. This order was challenged on the ground
that it violates Principles of Natural Justice. The Delhi High Court rejecting the contention held

23
that such an order could be compared with an order of suspension pending enquiry which is
preventive in nature in order to maintain campus peace and hence the principles of natural
justice shall not apply.

It was also in Maneka Gandhi v. Union of India recognized that “where an obligation to give
notice and opportunity to be heard would obstruct the taking of prompt action, especially action
of a preventive or remedial nature, right of prior notice and opportunity to be heard may be
excluded by implication”. In this case it is interesting to see that natural justice entails new
meaning and place under Indian Constitution at the same time Court recognized the
circumstance under which Principles of natural Justice can be discarded.

2. (v) Where it is impracticable to hold hearing or appeal:

It is one of the most convincing reason that the number of persons affected by a particular
order, act or decision is so great as to make it manifestly impracticable for them all to be given
an opportunity of being heard by the competent authority beforehand. This is the reason why
representation may not be required for the making of regulation of a legislative character in
absence of legislative requirement.

For example, In R v. Aston University Senate the large number of applicants competing for
scarce resource may make it impracticable to offer each applicant a hearing. If, for example,
there are 1,000 applicants for 100 places available in University law department it may be
impossible to afford interviews to many of those who, from the particulars supplied with their
written applications, appear sufficiently meritorious or suitable to warrant fuller personal
consideration. In this circumstance even if the court finds that a breach of procedural fairness
has occurred, administrative impracticability may still be relied upon as a reason for refusing
a remedy in its discretion.

In R V Radhakrishanan v. Osmania University, where the entire MBA entrance examination

was cancelled by the University because of mass copying, the Court held that notice and
hearing to all candidates not possible in such a situation, which had assumed national
proportions, Thus the court sanctified the exclusion of the rules of natural justice on the ground
of administrative impracticability.

In the same way the Supreme Court in Andhra Steel Corporation v. A.P. State Electricity Board
held that a concession can be withdrawn at any time without affording any opportunity of
hearing to affected persons except when the law requires otherwise or the authority is bound
by promissory estoppels. In this case the electricity board had withdrawn the concession in
electricity rate without any notice and hearing to the appellant. Therefore, where an order of
extension was cancelled before it became operational.

In Union of India v. O. Charadhar, held that cancellation of panel, select, reserve, waiting,
merit or rank lists, individual hearing to candidate is not necessary where the mischief in
conducting selection was so widespread and all the mischief in conducting the result, that it
was difficult to identify the persons unlawfully benefited or unlawfully deprived of selection.

24
Thus even the consequent termination of service does not attract principles of natural justice.

Also in W.B. Electricity Regulatory Commission v. CESC Ltd., it opined that when a statute
confers a right which is in conformity with the principles of natural justice, the same cannot be
negativated by a Court on an imaginary ground that there is a likelihood of an unmanageable
hearing before the authority or practical inconvenience. In this case the W.B. Electricity
Regulatory Commission had contended that though Act requires consumers hearing before
fixing tariff, yet giving hearing to 17 lakh electricity consumers would be a practical
impossibility and inconvenience. Rejecting the contention, the Court observed that the Act
does not give individual rights to every consumer and the same is regulated by Regulations,
therefore, the question of indiscriminate hearing does not arise.

Subsequent fair hearing or Appeal: if the public authority to make decisions which do not
comply fully with procedural fairness requirements if the person affected has recourse to
another hearing or appeal which itself provides fairness. There are situations where the absence
of procedural fairness before a decision is made can be subsequently and adequately be
“cured”, for example on appeal a prior hearing may be better than a subsequent hearing, but a
subsequent hearing is better than no hearing at all; and in some cases the courts have held that
statutory provisions for an administrative appeal.

2. (vi) Exclusion in case of purely administrative matters:

Where nature of authority is purely administrative no right of hearing can be claimed, where a
student of the university was removed from the rolls for unsatisfactory academic performances
without being given any per-decisional hearing. The Supreme Court in Jawaharlal Nehru
University v. B.S. Narwal held that the very nature of academic adjudication appears to
negative any right of an opportunity to be heard. Therefore if the competent academic
authorities examine and asses the work of a student over a period of time and declare his work
unsatisfactory, the rules of natural justice may be excluded.

In the same manner in Karnataka Public Service Commission v. B.M. Vijay Shanker when the
commission cancelled the examination of the candidate because, in violation of rules, the
candidate wrote his roll number on every page of the answer-sheet, the Supreme Court held
that the principles of natural justice were not attracted, the Court observed that the rule of
hearing be strictly construed in academic discipline and if this was ignored it would not only
be against the public interest but also erode the social sense of fairness. However, this exclusion
would not apply in case of disciplinary matter or where the academic body performs non-
academic functions granting sanction of prosecution is purely administrative functions,
therefore, principles of natural justice are not attracted. In the same manner cancellation of bid
for failure to execute lease deed and to deposit security amount, held, would not attract
principles of natural justice.

2. (vii) Where no right of person is infringed:

In some case it has been suggested that a claimant who is for some reason undeserving for

25
certain claims (due to absence of right to claim) may forfeit the right to procedural fairness.
Where no right has been conferred on person by any statute nor any such right arises from
common law the principles of natural justice are not applicable.

In J.R. Vohra v. Indian Export House (p) Ltd. The Delhi Rent Control Act makes provisions
for the creation of limited tenancies, Section 21 and 37 of the Act provide for the termination
of limited tenancies. The combined effect of these sections is that after the expiry of the term
a limited tenancy can be terminated and warrant of possession can be issued by the authority
to the landlord without any notice of hearing to the tenant. Upholding the validity of warrant
of possession without complying with the principles of natural justice, the Supreme Court held
that after the expiry of the period of any limited tenancy, a person has no right to stay in
possession and hence no right of his is prejudicially affected which may warrant the application
of the principles of natural justice.

In the same manner the Court in Andhra Steel Corporation v. A.P. State Electricity Board held
that a concession can be withdrawn at any time without affording any opportunity of hearing
to affected persons except when the law requires otherwise or the authority is bound by
promissory estoppels. In this case the electricity board had withdrawn the concession in
electricity rate without any notice and hearing to the appellant. Therefore, where an order of
extension was cancelled before it became operational or the order of stepping up salary was
withdrawn before the person was actually paid or the service of the probationer terminated
without charge the principles of natural justice are not attracted.

2. (viii) The procedural defect would have made no difference to the outcome:

There are several instances where Court discarded principles of natural justice after satisfying
that the outcome of the case could not have been different had natural justice been fully
observed. These decisions have been sought to be explained on the ground that the relief sought
was discretionary, or on the ground breach makes an order voidable rather than void. It is
submitted that neither explanation is sufficient. As to the former, it is right to note that a refusal
of relief on the ground that it would make “no difference” may be explained either as an
exercise of the courts discretion as to the grant of relief, as a part of the consideration of whether
the principles of fairness have in fact been infringed at all.

‘Useless formality’ theory is no doubt yet another exception to the application of the principles
of natural justice but it should be used with great caution and circumspection by the Court
otherwise it would turn out to be wheel of miscarriage of justice. It can only be used where on
the admitted or undisputed facts only one conclusion is possible and under the law only one
penalty is permissible, the Court may not insist on the observance of the principles of natural
justice because it would be futile to order its observance.

In R v. Haberdashers Aske’s School Governors , a decision by governors refusing to correct

an inaccurate statement in a consultation paper, and refusing to extend the consultation period
was held not unfair because the error in question could not have led a person reading the

26
pamphlet to have reached a different Conclusion.

In Dharmarathmakara Rai Bhadur Arcot Ramaswmay Mudaliar Educational Institution v.

Education Appellate TribunalIn this case a lecturer, who had been granted leave for doing M.
Phil, in violation of leave condition, had joined Ph. D course. She was given notice and after
considering her reply, wherein she had admitted joining Ph. D course, her service was
terminated. She challenged the termination order before Karnataka Private Educational
Institutions (discipline and Control) Act, 1975 subsequently it is appealed to HC where
termination was held invalid, but SC held that opportunity to show cause was not necessary
where facts are undisputed and the affected person could not fourth any valid defence.

Similarly in KSRTC v. S.G. Kotturappa, the Court opined that where the respondent had
committed repeated acts of misconduct and had also accepted minor punishment, he is not
entitled to benefit of principles of natural justice as it would be mere formality, that too, in the
case of misconduct by a daily wager. Supreme Court remarked; “the question as to what extent
principles of natural justice are required to be complied within a particular case would depend
on fact situation obtaining in each case. The principles of natural justice cannot be applied in
vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are
furthermore, not required to be complied with, if it will lead to a mere empty formality.

In Punjab National Bank v. Manjeet Singh, the SC held that in view of the binding nature of
the award the Court will not insist on compliance with the principles of natural justice as it
would be a mere empty formality unless factual position or legal implications under the award
is disputed. In this case award was challenged on the ground that everyone in the constituency
was not heard, therefore, no unilateral decision can be taken by banks without giving
employees notice and hearing.

However ‘useless formality’ theory has still not been able to firmly established in
administrative law because there exists a strong opinion which suggest that this theory is wrong
as a Court cannot prejudge the issue and there is scope for abuse on the basis of self imposed
assumptions of authority.

2. (ix) Exclusion on the ground of ‘no fault’ of decision maker:

Where, at a hearing on notice, the absence of procedural fairness is due to the conduct of, or a
failure by, the other party to the hearing, it was at one time thought that the courts had discretion
to quash the decision. Thus, where prison authorities failed to make known to a prisoner
charged with an offence against discipline the existence of a witness to the alleged offence, the
determination of the prison board of visitors was quashed on the grounds of unfairness, ambit
that this was not caused by the tribunal itself.

It has been suggested, however, that these decisions should be viewed not as resting on the
principles of fairness, but as based upon the alternative principles that “fraud unravels
everything”, or because the “process leading to conviction” has been distorted and vitiated as
a result of breach of duty owed to the procedure court and to the defence prosecutor. The

27
principles of fairness, in contrast, are “concerned solely with the propriety of the procedure
adopted by the decision-maker”, but this approach are the responsibility of the prosecution or
respondent, but which cannot be characterized as fraud or breach of duty.

In the same manner it may be futile to comply with the principles of natural justice would be
where administrative action is perse illegal as an ineligible candidate has been considered for
appointment. It has been held that the principles of natural justice may not be applied unless
prejudice is caused and there is no prejudice if an ineligible candidate is considered for
appointment. Likewise, as general rule, a person who has himself impeded or frustrated the
service of notice of impeding action cannot afterwards be heard to complain that he did not
receive actual notice. But where the mistake is due to the conduct of the applicant’s legal
representative, the position is not entirely clear.

In R v. Secretary of State for the Home Department, the applicant had lodged an appeal
against the Home Secretary’s decision to make a deportation order against him. Notice of
appeal was sent to his solicitors, who misaddressed the letter when sending it on to the
applicant, who consequently never received notice of the appeal. The appeal was therefore
dismissed in his absence. On an application for judicial review of the decision to dismiss the
appeal, on the ground that the applicant had been denied a fair (or any) hearing, the House of
Lords held that a party cannot complain of a denial of fair hearing where he failed to make use
of an opportunity to have his case heard through the negligence of his legal adviser, even if he
himself is not responsible in any way for that failure. But in India law on this issue is quite
clear that it is good ground to reopen the hearing of case on the ground of negligence of Legal
representative resulting injustice the party.

3. Conclusion

Courts both in India and England in relation to administrative proceedings created various
exception to the requirement of Natural Justice Principles and procedure there off. However,
these exceptions are all circumstantial and not conclusive, every exception to be adjudged
admissible or otherwise only after looking into the facts and circumstances of each case. The
main objective behind the reconciliation between the inclusion and exclusion of protection of
Principles of Natural Justice is to harmoniously construe individual’s natural rights of being
heard and fair procedure as well as the public interest. Larger public interest is to be allowed
to override the individual’s interest where the justice

6. DOCTRINE OF BIAS

nemo judex in sua causa ,i.e.; no one should be made a judge in his own cause. It is popularly
known as the rule against bias. It is the minimal requirement of the natural justice that the
authority giving decision must be composed of impartial persons acting fairly, without
prejudice and bias.
Bias means an operative prejudice, whether conscious or unconscious, as result of some
preconceived opinion or predisposition, in relation to a party or an issue.

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Dictionary meaning of the term bias suggests anything which tends a person to decide a case
other than on the basis of evidences.

The rule against bias strikes against those factors which may improperly influence a judge
against arriving at a decision in a particular case. This rule is based on the premises that it is
against the human psychology to decide a case against his own interest. The basic objective of
this rule is to ensure public confidence in the impartiality of the administrative adjudicatory
process.

Types of bias:

Bias manifests itself variously and affects a decision in a variety of ways. It can broadly
be classified into six categories:

1. Personal Bias
2. Pecuniary Bias
3. Subject Matter Bias
4. Departmental Bias
5. Preconceived Notion Bias
6. Bias On Account of Obstinacy.

1.Personal Bias:

It arises out of the personal or professional relationship of friendship or hostility between the
authority and the parties. It’s the human nature that we try to give favorable decision to our
friends or relatives, whereas use the same as a weapon against the enemies.

SUPREME court’s decision in Mineral Development Corporation Ltd. V. State of Bihar,

serves as a good illustration on the point. Here, the petitioners were granted a mining lease for
99 years in 1947. But in 1955, government quashed the license. The petitioners brought an
action against the minister passing this order on the behalf of government, on the ground that,
the petitioner in 1952 opposed the minister in General election. Therefore, on the account of
political rivalry, the minister passed such an order, and hence the order was suffered from
personal bias. Supreme Court found the allegation to be true and thus quashed the said order.
Similarly in Baidyanath Mohapatra v. state of Orissa, the Supreme Court quashed the order of
the tribunal confirming premature retirement on the ground that the chairman of the tribunal
was also a member of the review committee which had recommended premature retirement.

Test For Personal Bias:

There are two kinds of tests:

Reasonable Suspicion of Bias: looks mainly to outward appearance.

Real Likelihood of Bias: Focuses on court’s own evaluation of possibilities.

In both the situations, the court sees whether there is reasonable ground for believing that the
deciding officer was likely to be biased, as it is very difficult to prove a person’s state of mind.
In the case of Jiwan K. Lohia v. Durga Dutt Lohia , the apex court observed that with regard
to the bias the teat to be applied is not whether in fact the bias has affected the judgment, but

29
whether a litigant could reasonably apprehend that a bias attributable might have operated
against him in the final decision.

Therefore the real test for likelihood of bias is whether a reasonable person in possession of
relevant information, would have thought that bias was likely and whether the authority
concerned was likely to be disposed to decide a matter in a particular manner.

The reason is plain enough as per Lord Denning, Justice must be rooted in the confidence and
the confidence is destroyed when right minded people go away thinking that the judge is biased.

2. Pecuniary Bias:

Any financial interest howsoever small it may be is bound to vitiate the administrative action.
The judicial opinion is unanimous as to it.
In R v. Hendon Rular District Council, the court in England quashed the decision of the
planning commission, where one of the members was an estate agent who was acting for the
applicant to whom permission was granted.

In Jeejeebhoy vs. Astt. Collector,Thana the CJ reconstituted the bench ,when it was found that
one of the members of the bench was the member of the cooperative society for which the land
has been acquired.

But this rule is not applicable where the judge, though having a financial interest, has no direct
financial interest in the outcome of the case. this is evident from the Court of Appeal decision
in R v. Mulvhill, where the court refused to set aside the conviction of an accused on a charge
of robbery in a bank on the ground that the trial judge had shares in that bank. In such cases
unless there is a likelihood of bias administrative action will not be quashed.

3. Subject Matter Bias:

The situations where the deciding officer is directly or indirectly in the subject matter of the
case.

The supreme court in cases like murlidhar v. kadam singh & sub – committee of judicial
accountability v. Union of India, followed the same line. But in Gulla palli Nageshwara Rao v.
APSRTC, the Supreme Court quashed the decision of A.P. government . nationalizing road
transport on the ground that the secretary of the transport department who was given a hearing
was interested in the subject matter. It may be mentioned that in USA and England,
predisposition in favour of a policy in the public interest is not considered as legal bias vitiating
administrative actions.

4. Departmental Bias

The problem of departmental bias is something which is inherent in the administrative process,
and if it is not effectively checked, it may negate the very concept of fairness in the
administrative proceeding.
In Gullapalli Nageswara Rao v. APSRTC the order of the government nationalizing road
transport was challenged in this case. One of the grounds for challenge was that the Secretary
of the Transport Department who gave the hearing was biased, being the person who initiated
the scheme and also being the head of the department whose responsibility it was to execute it.

30
The court quashed the order on the ground that, under the circumstances, the Secretary was
biased, and hence no fair hearing could be expected.

The problem of departmental bias arises in different context- when the functions of judge and
prosecutor are combined in the same department. It is not uncommon to find that the same
department which initiates a matter also decides it, therefore, at times, departmental fraternity
and loyalty militates against the concept of fair hearing.

This problem came up before the Supreme Court in Hari v. Dy. Commr. of Police. In this case
an externment order was challenged the ground that since the police department which initiated
the proceedings and the department which heard and decided the case were the same, the
element of departmental bias vitiated administrative action. The Court rejected the challenge
on the ground that so long as the two functions (initiation and decision) were discharged by
two separate officers, though they were affiliated to the same department, there was no bias.

In Krishna Bus Service v. State of Haryana, the Supreme Court quashed the notification of the
government which had conferred powers of a Deputy Superintendent of Police on the General
Manager, Haryana Roadways in matters of inspection of vehicles on the ground of
departmental bias.

The facts of this case were that some private bus operators had alleged that the General
Manager of Haryana Roadways who was the rival in business in the State could not be expected
to discharge his duties in a fair and reasonable manner and would be too lenient in inspecting
the vehicles belonging to his own department. The reason for quashing the notification
according to the Supreme Court was the conflict between the duty and the interest of the
department and the consequential erosion of public confidence in administrative justice.

5. Preconceived Notion Bias

Bias arising out of preconceived notions is a very delicate problem of administrative law. On
the one hand, no judge as a human being is expected to sit as a blank sheet of paper, on the
other hand, preconceived notions would vitiate a fair trial. This point came up for consideration
before the Supreme Court in T. Govindaraja Mudaliar v. State of T.N, the government decided
in principle to nationalize road transport and appointed a committee to frame the scheme. The
Home Secretary was made a member of this committee. Later on, the scheme of nationalization
was finalized, published and objections were heard by the Home Secretary. It was contended
that the hearing was vitiated by the rule against bias because the Secretary had already made
up his mind on the question of nationalization as he was a member of the committee which
took this policy decision. The court rejected the challenge on the ground that the Secretary as
a member of the committee did not finally determine any issue as to foreclose his mind. He
simply helped the government in framing the scheme. Similarly, in Kondala Rao v.
APSRTC the court did not quash the nationalization of the road transport order of the Minister
who had heard the objections of private operators on the ground that the same Minister had
presided over a meeting only a few days earlier in which nationalization was favored. The court
rejected the contention on the ground that the decision of the committee was not final and
irrevocable but merely a policy decision.

The problem of bias arising from preconceived notions may have to be disposed of as an
inherent limitation of the administrative process. It is useless to accuse a public officer of bias
merely because he is predisposed in favor of some policy in the public interest.

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7. Doctrine of Separation Of Powers
Introduction

“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

The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the
Constitution to the three organs and delineating the jurisdiction of each.

The position in India is that the doctrine of separation of powers has not been accorded
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 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

32
English philosopher John Locke had earlier argued that legislative power should be divided
between king and Parliament.

Locke distinguished between what he called:

1. Discontinuous legislative power

2. Continuous executive power
3. Federative power.

He included within ‘discontinuous legislative power’ the general rule-making power called
into action from time to time and not continuously. ‘Continuous executive power’ included all
those powers, which we now call executive and judicial. By ‘federative power’ he meant the
power of conducting foreign affairs. Montesquieu’s division of power included a general
legislative power and two kinds of executive powers; an executive power in the nature of
Locke’s ‘federative power’ and a ‘civil law’ executive power including executive and judicial
power.

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 the 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.[viii]

However, the Jacobins, Napoleon I and Napoleon III discarded the 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.

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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 the
judiciary from the executive i.e. independence of the 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 is not separated from the legislative and the executive. Where it
joined the legislative, the life and liberty of the subject would be exposed to arbitrary control,
for the judge would then be the legislator. Where it joined with the executive power, the judge
might behave with violence and oppression.

The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

1. The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in Parliament.
2. One organ of the government should not interfere with any other organ of the
government.
3. One organ of the government should not exercise the functions assigned to any other
organ.

In England, the King being the executive head also an integral part of the legislature. His
ministers are also members of one or other Houses of Parliament. This concept goes against
the idea that the same person should not form part of more than one organ of the Government.

In England House of Commons control the executive. So far as the judiciary is concerned, in
theory, House of Lords is the highest Court of the country but in practice, judicial functions
are discharged by persons who are appointed specially for this purpose, they are known as Law
Lords and other persons who held judicial post. Thus we can say that the doctrine of separation
of powers is not an essential feature of the British Constitution.

Principle of Checks and Balances

The doctrine of separations of powers may be traced back to an earlier theory known as the
theory of mixed government from which it has been evolved. That theory is of great antiquity
and was adumbrated in the writings of Polybius, a great historian who was captured by the
Romans in 167 BC and kept in Rome as a Political hostage for 17 years in his history of Rome.

Polybius explained the reasons for the exceptional stability of the Roman Government which
enabled Rome to establish a worldwide empire. He advanced the theory that the powers of
Rome stemmed from her mixed government. Unmixed systems of government that is the three
primary forms of government namely, Monarchy, Aristocracy, and Democracy – were
considered by Polybius as inherently unstable and liable to rapid degeneration.

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The Roman constitutions counteracted that instability and tendency to degeneration by a happy
mixture of principles drawn from all the three primary forms of government. The consuls, the
Senate and the popular Assemblies exemplified the monarchical, the aristocratic and the
democratic principles respectively.

The powers of Government were distributed between them in such a way that each checked
and was checked by the others so that an equipoise or equilibrium was achieved which imparted
a remarkable stability to the constitutional structure. It is from the work of Polybius that
political theorist in the 17th Century evolved that theory of separation of powers and the closely
related theory of Checks and Balances.

Effects

The doctrine of separation of powers as propounded by Montesquieu had a tremendous impact

on the development of administrative law and functioning of Governments. It was appreciated
by English and American jurists and accepted by politicians. In his book ‘Commentaries on
the Laws of England’, published in 1765, Blackstone observed that if legislative, executive and
judicial functions were given to one man, there was an end of personal liberty. Madison also
proclaimed: “The accumulation of all powers, legislative and executive and judicial, in the
same hands, whether of one, a few or many and whether hereditary, self-appointed or elective
may justly be pronounced the very definition of tyranny.” The Constituent Assembly of France
declared in 1789 that there would be nothing like a Constitution in the country where the
doctrine of separation of powers was not accepted.

Importance

The doctrine of separation of power in its true sense is very rigid and this is one of the reasons
why it is not accepted by a large number of countries in the world. The main object as per
Montesquieu in the Doctrine of separation of power is that there should be government of law
rather than having will and whims of the official. Also, another most important feature of the
above-said doctrine is that there should be the independence of judiciary i.e. it should be free
from the other organs of the state and if it is so then justice would be delivered properly.

The judiciary is the scale through which one can measure the actual development of the state
if the judiciary is not independent then it is the first step towards a tyrannical form of
government i.e. power is concentrated in a single hand and if it is so then there is a cent percent
chance of misuse of power. Hence the Doctrine of separation of power does play a vital role in
the creation of a fair government and also fair and proper justice is dispensed by the judiciary
as there is the independence of the judiciary.

Also, the importance of the above-said doctrine can be traced back to as early as 1789 where
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”. Also
in 1787, the American constitution inserted the provision pertaining to the Doctrine of
separation of power at the time of the drafting of the constitution in 1787.

35
Defects

Though theoretically, the doctrine of separation of powers was very sound, many defects
surfaced when it was sought to be applied in real life situations. Mainly, the following defects
were found in this doctrine:

1. Historically speaking, the theory was incorrect. There was no separation of powers
under the British Constitution. At no point in time, this doctrine was adopted in
England.
As Prof. Ullman says: “England was not the classic home of separation of powers.” It
is said: “Montesquieu looked across foggy England from his sunny vineyard in Paris
and completely misconstrued what he saw.”
2. This doctrine is based on the assumption that the three functions of the Government viz
legislative, executive and judicial are independent of distinguishable from one another.
But in fact, it is not so. There are no watertight compartments. It is not easy to draw a
demarcating line between one power and another with mathematical precision.
3. It is impossible to take certain actions if this doctrine is accepted in this entirety. Thus,
if the legislature can only legislate, then it cannot punish anyone, committing a breach
of its privilege; nor can it delegate any legislative function even though it does not know
the details of the subject-matter of the legislation and the executive authority has
expertise over it; nor could the courts frame frame rules of procedure to be adopted by
them for the disposal of cases. Separation of Powers thus can only be relative and not
absolute) Modern State is a welfare State and it has to solve complex socio-economic
problems and in this state of affairs also, it is not possible to stick to this doctrine.
Justice Frankfurter said; “Enforcement of a rigid conception of separation of powers
would make modern Government impossible.” Strict separation of powers is a
theoretical absurdity and practical impossibility.
4. The modern interpretation of the doctrine of Separation of Powers means that discretion
must be drawn between ‘essential’ and ‘incidental’ powers and one organ of the
Government cannot usurp or encroach upon the essential functions belonging to another
organ but may exercise some incidental functions thereof.
5. the Fundamental object behind Montesquieu’s doctrine was liberty and freedom of an
individual, but that cannot be achieved by mechanical division of functions and powers.
In England, the theory of Separation of Powers is not accepted and yet it is known for
the protection of individual liberty. For freedom and liberty, it is necessary that there
should be Rule of Law and impartial and independent judiciary and eternal vigilance
on the part of subjects.

The Supreme Court in Ram Jawaya v/s State of Punjab held:

“Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can be very well said that our Constitution

36
does not contemplate assumption by one organ or part of the State of functions that essentially
belong to another.”

In Indira Nehru Gandhi v. Raj Narain, Ray C.J.also observed that in the Indian Constitution
there is separation of powers in a broad sense only. A rigid separation of powers as under the
American Constitution or under the Australian Constitution does not apply to India. However,
the Court held that though the constituent power is independent of the doctrine of separation
of powers to implant the story of basic structure as developed in the case of Kesavananda
Bharati v. State of Kerala on the ordinary legislative powers will be an encroachment on the
theory of separation of powers.

In India, not only is there a functional overlapping but there is personnel overlapping also. The
Supreme Court has the power to declare void the laws passed by the legislature and the actions
taken by the executive if the violate any provision of the Constitution or the law passed by the
legislature in case of executive actions. Even the power to amend the Constitution by
Parliament is subject to the scrutiny of the Court. The Court can declare any amendment void
if it changes the basic structure of the Constitution. The President of India in whom the
Executive Authority of India is vested exercises law making power in the shape of ordinance
making power and also the judicial powers under Article 103(1) and Article 217(3) to mention
only a few. The Council of Ministers is selected from the Legislature and is responsible to the
Legislature. The Legislature besides exercising law-making powers exercises judicial powers
in cases of breach of its privilege, impeachment of the President and the removal of the judges.
The Executive may further affect the functioning of the judiciary by making appointments to
the office of the Chief Justice and other Judges.

Judicial Opinion on the Doctrine of Separation of Powers

The separation of power there were times where the judiciary has faced tough challenges in
maintaining and preserving the Doctrine of separation of power and it has in the process of
preservation of the above said Doctrine has delivered landmark judgments which clearly talks
about the independence of judiciary as well as the success of judiciary in India for the last six
decades.

The first major judgment by the judiciary in relation to Doctrine of separation of power was
in Ram Jawaya v State of Punjab. The court in the above case was of the opinion that the
Doctrine of separation of power was not fully accepted in India. Further, the view of Mukherjea
J adds weight to the argument that the above-said doctrine is not fully accepted in India. He
states that:

“The Indian constitution has not indeed recognized the doctrine of separation of powering its
absolute rigidity but the functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can very well be said that our constitution
does not contemplate assumption, by one organ or part of the state, of functions that essentially
belong to another”.

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Later in I.C. Golak Nath v State of Punjab Subha Rao, C.J opined that

“The constitution brings into existence different constitutional entitles, namely the union, the
state and the union territories. It creates three major instruments of power, namely the
Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without overstepping there limits. They should
function with the spheres allotted to them”

The above opinion of the court clearly states the change in the court’s views pertaining to the
opinion in the case of Ram Jawaya v State of Punjab related to the doctrine of separation of
power. The came one of the most landmark judgments delivered by the Supreme Court
in Keshvananda Bharti v Union of India the court was of the view that amending power was
now subject to the basic features of the constitution.

Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was
pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending power, cannot exercise i.e. the
parliament does not have the jurisdiction to perform a function which the other organ is
responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions
of the three organs of the state. Also, 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.” So if there is a provision then there should be proper
implementation and this judgment emphasis on that point only.

Also in I.R. Coelho vs. State of Tamil Nadu S.C. took the opinion opined by the Supreme
court in Kesavananda Bharati case pertaining to the doctrine of basic structure and held that
the Ninth Schedule is violative of the above-said doctrine and hence from now on the Ninth
Schedule will be amenable to judicial review which also forms part of the basic structure
theory.

From the above few case laws right from Ram Jawaya v state of Punjab in 1955 to I.R.
Coelho v. State of Tamil Nadu in there has been a wide change of opinion as in the beginning
the court was of the opinion that as such there is no Doctrine of Separation of Power in the
constitution of India but then as the passage of time the opinion of the Supreme Court has also
changed and now it does include the above said Doctrine as the basic feature of the
Constitution.

Evaluation of the Doctrine

In a strict sense, the principle of separation of powers cannot be applied in any modern
Government either may be U.K., U.S.A., France, India or Australia. But it does not mean that
the principle has no relevance nowadays. Government is an organic unity. It cannot be divided
into watertight compartments.

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History proves this fact. If there is a complete separation of powers the government cannot run
smoothly and effectively. The smooth running of government is possible only by co-operation
and mutual adjustment of all the three organs of the government. Prof. Garner has rightly
said, “the doctrine is impracticable as a working principle of Government.” It is not possible
to categorize the functions of all three branches of Government on a mathematical basis. The
observation of Frankfurter is notable in this connection. According to him “Enforcement of a
rigid conception of separation of powers would make Government impossible.”

doctrine of Montesquieu is not merely a “myth” it also carries a truth, but in the sense that each
organ of the Government should exercise its power on the principle of “Checks and Balances”
signifying the fact that none of the organs of Government should usurp the essential functions
of the other organs. Professor Laski has aptly remarked: “It is necessary to have a separation
of functions which need not imply a separation of personnel.

8. WRITE SHORT NOTES

1. Advantages and disadvantages of delegated legislation

Advantages of Delegated Legislation

1. Saves Time for the Parliament

There are lots of overwhelming activities that the government should be concerned about. In
order to resolve the complexity and volume that the legislature needs to deal with, the power
needs to be delegated to the executive branch. This is because of the lack of time or the capacity
thereof in making laws for regulation. Hence, the creation of delegated legislation should be
essential to avoid bogging down into the burden of details.

2. Enables Flexibility

Rigidity in administration has been created by statutes, but the administrative legislation can
be more adaptable to varying circumstances. Thus, it will be useful in the branches of
administration liable for occasional changes and where the technical developments are
happening on a day-to-day basis.

3. Dealing with Emergencies

Clothing the administrative agencies with needed discretion should be better in dealing with
possible contingencies. Such contingencies might result from the application of laws as the
legislature has been unable to foresee or allocate for everyone.

4. Done in Consultation with Affected Interests

In order to make legislation effective, it is important to have prior consultation regarding

interests that should be affected. This is because drafting of rules might and oftentimes doesn’t

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allow a conference between vested interests and the government. This can be affected and
would result in the agreement bound to voluntary compliance.

5. The Average Legislator

Since an average legislator is not so acquainted with the difficulties of the modern legislation,
it is important to note that this legislator passes the bill in basic form and leaves details to be
accomplished by the executive branch.

6. Influence of Science and Technology

The impact of science and technology has resulted to the multiplication of functions of the
modern state. Thus, the power of the legislature has been enhanced considerably. As it is not
capable of coping with powers on the rise, the delegation of power in lawmaking has been
passed to the executive.

7. Sets Up New Standards

The increase in the delegated legislation can likewise be attributed to the requirement of setting
up new standards in social interest. Thus, expert minds are needed to make sure that the national
minimum regarding health education, housing, and sanitation has been due to everybody.

8. The Administrative Legislation Provides for Expert Legislation

The rules are being drafted by the experts familiar with actual conditions in appropriate
departments. With this practice, they are able to work better compared to the lay members
comprising the legislature.

List of Disadvantages of Delegated Legislation

1. Undemocratic Procedures

Legislation comes as a result to undemocratic processes and procedures. In terms of by-laws,

it is arguable that those are democratic considering they are created by elected bodies. Thus,
they can only make by-laws in so far as they have been given authority to do so based on an
enabling Act of the local government.

2. Apparent Lack of Debate

The apparent lack of debate and publicity that should be associated with a form of secondary
legislation has also been noticeable. The enabling Act should have been subject for some public
debate as well as consultation delegated by the legislation with its very nature to be a lot wordy
and more complex meaning which will not be that easy to be understood or be accessible by
the people.

3. Problem of Sub-Delegation

The arousal of sub-delegation may come when the responsible body for the creation of

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legislation has not been able to deal with it directly. Thus, the creation of sub-delegation will
give the job to other parties. As a result, this will cause problems as the other parties should
not be accountable at the same way as those who created the legislation.

4. The Wording of Delegated Legislation

Another problem when it comes to delegated legislation is the wording that can be obscure and
technical in nature that should make it hard to understand. This was the trait shared with the
Acts of Parliament.

5. Dependence on Individuals Making Claims to Review Legislation

One more limitation about delegated legislation is that it renders the courts unable to review
such legislation. Thus, it will become dependent to those who made the claim and brought the
matter to the courts’ attention. Since the courts don’t have any general authority to keep such
legislation to be reviewed, it poses a problem. This is because the process should be time-
consuming and costly. More so, reviewing the matter can only be conducted if the individual
claims do have the necessary funding. As a result, the effectiveness of the judicial review to
remedy this condition should be severely limited.

6. Influence of the High Courts

In comparison to the primary legislation, the term delegated legislation can be influenced by
the High Court. Hence, they can quash the said legislation as it has been made by people who
aren’t directly elected. Thus, it could limit the control of their power. Nevertheless, it can be
dependent on the people making those claims as they bring matters in consideration of the
courts.
The time of the Parliament has been limited and the government will have a legislative program
that should keep the Parliament busy. Thus, the Parliament will have no time to scrutinize the
debate complex and regulations and technical rules. Perhaps the advantages and disadvantages
presented here can provide a clear understanding regarding the significance or insignificance
of delegated legislation. It may or may not be a significant factor for some, but it should be a
concern for everyone.

2. LOK PAL AND LOKAYUKTA

OMBUDSMAN IN INDIA (LOKPAL AND LOKAYUKTA)

An ombudsman is a public advocate who is usually appointed by the government, with a

significant degree of independence, and is charged with representing the interests of the public
by investigating and addressing complaints of maladministration or a violation of rights. The
duties of an ombudsman are to investigate complaints and attempt to resolve them. For a nation
to prosper, the administrative wing of the nation has to function properly and efficiently and it
has to be ensured that there is no corruption in the sphere of administration. Corruption is the

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biggest hindrance in the development of a nation. The ombudsman plays a crucial role in
tackling the problem of corruption. In the Indian context this role is played by the Lokpal.

Introduction

For a nation to prosper and develop holistically it needs to have an organised system of
administration; a system which seeks to redress the problems of the people and most
importantly, is free from corruption. Maladministration leads to various obstacles in the
progress of a nation and is like a termite which slowly erodes the very foundation of a nation
and prevents the very structure of administration from accomplishing its task. The root cause
of this problem of maladministration is corruption. Administrative law is an ever growing
subject which cannot be confined to one single terrain. It does not confine itself to any one
branch of law and is eventually bound to be present at every instance where there is an abuse
of power. For an administrative system to be good it must not abstain from being answerable
to the people. But, as has been said, absolute power corrupts absolutely which implies that if
there is power then its abuse is bound to be there. With the administrative agencies pervading
every aspect of our lives, the chances of administrative law interfering with the rights of a
person have increased manifold. It eventually leads to the need for an appropriate mechanism
which can secure the rights of a person from being infringed by administrative wrongs. For this
reason, the institution of “ombudsman” came to the rescue and proved to be of immense
importance and has been and is still being adopted by various nations to protect the rights of
the individual against the administrative practices of the State and also to avoid inefficiency in
the administrative set up of the State.

The origin of Lokpal and Lokayukta in India

The issue concerning the ombudsman was for the first time raised in the Parliament in the year
1963. The idea of ombudsman came to India in the year 1959. Mr C.D. Deshmukh was the
Chairman of the University Grants Commission and he made possible the establishment of a
tribunal which would be completely impartial and would look into the matters and make proper
reports on the complaints filed by the public in general. From this incident there have been
continuous demands for the establishment of such a mechanism like an ombudsman in all the
strata of the Indian society.

A crucial change with reference to the Lokpal Bill came in the year 2011 and it was in this year
that the Lokpal Bill was passed and it eventually led to the establishment of the institution of
Lokpal at the Centre and Lokayukta at State level. Another important feature of this Bill is that
the form of the current Bill has been arrived at after it went through numerous recurring rounds
of consultations and discussions with all the interested parties which also included the society
at large. And it was only after such numerous deliberations and proper consultations that this
Act eventually came into force on the 1 st January 2014.

Selection Procedure for the members of Lokpal

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The Lokpal consists of one Chairperson and eight members and these members are selected
through the screening of two committees and these committees are, Selection Committee and
Search Committee.

The Selection Committee has the core function of selection and final say in the matter and it
comprises of five prestigious office-bearers as members, viz, the Prime Minister, the Speaker
of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the Chief Justice of India (CJI)
or a judge of the Supreme Court nominated by the CJI, and one eminent jurist, as recommended
by the other four members of the committee. Before selection by the committee above, another
group of seven members is constituted, called the Search Committee. An essential function of
this committee is to shortlist a panel of eligible candidates for the post of Chairperson and
members of the Lokpal, which is then put before the Selection Committee. The Selection
Committee then decides upon this proposed panel by the Search Committee. A peculiar feature
of the Search Committee and that of the Lokpal is that, half of the total members of each should
be persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes,
minorities and women.

Supreme Court on Lokpal and Lokayukta

Supreme Court has pronounced several decisions regarding the institution of Ombudsman. This
heading analyses various case laws related to the institution.

1. Common Cause, A Registered Society v. Union of India

This case is a review petition to provide relief to pass an appropriate writ, order or orders to
direct the Parliament to draft a Bill for the enactment of a legislation to establish the institution
of Lokpal, or an alternative system similar to Ombudsman for checking and controlling
corruption at public, political and bureaucratic levels. The Solicitor General brings to notice
that efforts were made with no consensus on the proposed bill. It is a matter which concerns
the Parliament and the Court cannot do anything substantial in this matter.

2. Justice K. P. Mohapatra v. Sri Ram Chandra Nayak

Retired Judge of the High Court of Orissa was appointed as the Lokpal by the Governor of
Orissa by issuing a notification, the Government of Orissa appointed the appellant as the
Lokpal with effect from the date on which he was sworn in as such. After hearing the parties,
the PIL was allowed and it was held that there was no effective consultation with the Leader
of the Opposition and that the consultation under Section 3(1) of the Orissa Lokpal and
Lokayukta Act was effective on reference to the Governor, Chief Justice and Leader of the
Opposition. The Court observed that there was no consultation with the Chief Justice with
regard to the name suggested by the Leader of the Opposition. Therefore, appointment of the
appellant as the Lokpal was void. That order is under challenge in this appeal.

WRITE ANY 2 OF THE FOLLOWING:

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1. The revenue minister had cancelled the petitioners license for the lease of certain
land. there was a political rivalry between the minister and the petitioner. the
minister had even filed a criminal case against the petitioner. is the cancellation
valid?

SOLUTION:
The facts of the case are similar to Mineral Development Ltd v/s State Of Bihar
AIR 1960 SC 468
The Chairman of Mineral Development Ltd had pollical quarrel with that Revenue Minister.
Both of them were rival candidates in Assembly Elections from different parties. During that
election period the Chairman had filed a criminal case against the Revenue Minister who won
M.L.A seat and later became the Revenue Minister. Keeping in view of the previous grudges,
the Minister cancelled the licence of Mineral Development Ltd for the quarrying lease. The
Chairman challenged the cancellation.

Judgement: the Supreme Court quashed the order of Revenue Minister , opinion of Revenue
Minister was influenced by personal hostility.

2. A writ petition filed before the Supreme Court was dismissed with a
direction to file the same before the Delhi High Court, as it has concurrent
jurisdiction and since there is an effective alternative relief.

SOLUTION: the facts of the case are similar to KASTURI LAL RALIA v/s STATE OF
U.P, in this case the Supreme Court held that a Public Interest litigation may be transferred
to the appropriate High Court.

3. A blind man falls into a hole kept open by the municipality and is injured.
The man hole was unguarded but two red lanterns were kept by its side. Discuss
the liability.

SOLUTION: The State is held liable. It is the duty of the concerned authorities to guard the
man holes with all protective covering. The principle is laid down in

Smt Kumari v/s State of Tamil Nadu AIR 1992 SC 2069

The son of the plaintiff fell in a ten feet deep sewerage tank of the municipality, which was
kept open negligently, and died.
The plaintiff sued the Sate Government. The Supreme Court ordered the State Government to
pay damages to the Plaintiff.
It was held as Liability of the State to pay damages to the Plaintiff.

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