NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

Administrative law

Semester VII

Constitutionality of delegated legislation

SUBMITTED BY: SUBMITTED TO:

SIDDHANT BARMATE

ROLL 2017BALLB112 associate prof. Sushma sharma

Research methodology
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The researcher has adopted non-doctrinal method of research.

Hypothesis
Delegated legislation is constitutional as per the researcher’s
personal view.

Aims and objectives

Aim is to discuss delegated legislation with the objective of
understanding its constitutionality.

Presentation
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A few demonstrations of Parliament representative to Ministers,
divisions, offices, sheets or different specialists the ability to
make and apply subordinate enactment depicted distinctly by
and large terms in the demonstrations. Appointed enactment is a
term used to depict these guidelines, orders, rules, by-laws and
different instruments. Parliament examines most designated
enactment to guarantee that their arrangements don't surpass the
forces endorsed by Parliament itself.

This obligation to investigate designated enactment has been

alloted to the Standing Joint Committee for the Scrutiny of
Regulations. Notwithstanding the terms of reference set out by
the House itself, this present Committee's order is to a limited
extent depicted by a demonstration of Parliament. Its exercises
some of the time lead to the conjuring of uncommon
methodology in the House when the Committee makes a report
to the House pushing the disavowal of a guideline.

Equity P.B Mukherjee very very much saw in this regard;

"Designated enactment is an articulation which covers a large

number of disarray. It is a reason for the officials, a shield for
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the directors and an incitement to the protected legal advisers. It
is applauded as a need and felt as unavoidable in our reality
where social monetary innovative mental and authoritative
speed surpasses the open and tranquil conventional
administrative standards and cycles. It is reprimanded as a
relinquishment od power by officials and a getaway from the
obligation forced on them by electors of majority rule
government. In England the lord lost the authoritative force at
Runnymede and parliament lost authoritative at charge that
followed since to give the legislature to the nation through
organization and administration"

1. Designated LEGISLATION

Development of Administrative Process heft of law originates

from the administrators.  All law making which happens outside
the lawmaking body communicated as rules, guidelines,
standing rules, orders, plans, bearings or notices and so on
Workmanship. 13 (3) Defines law and it Includes law, request,
byelaw, rule, guideline and warning having the power of law.

In Sikkim v. Surendra Sharma - 'All Laws in power' is sub

provision (k) of Art. 371 F incorporates subordinate enactment.

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Salmond characterized designated enactment as "that which
continues from any position other than the Sovereign force and
is hence, subordinate for its proceeded with presence and
legitimacy on some predominant or incomparable power".

Focal law to focal or state or both subject to topics (suitable

Govt.), e.g.: - Industrial disputer Act, 1947 focus intensity of
rule making on the "proper Govt."Difference between rules,
guideline and bylaws:  Generally, the rules accommodate
capacity to make rules where the overall strategy has been
indicated in the resolution however the subtleties have been left
to be determined fair and square. Typically, specialized or after
issues, which don't influence the approach of the enactment, are
remembered for guidelines. Local laws are normally matter or
nearby significance, and the ability to make byelaws is
commonly given to the neighborhood or self administering
authority.

Requests: -  U/s 3 of Essential Commodities Act, 1955 is an

overall request as recognized from chief request which is
explicit.

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Request requesting that an individual empty house, is a chief
request where as a request setting down costs of wares is an
administrative request. All the terms are utilized conversely.

7. Defendability OF DELEGATED LEGISLATION

Position in India

Pre Independence:

Sovereign v. Burah wherein the Privy Council had approved just

Conditional Legislation and in this manner according to its
thinking designated enactment isn't allowed.

the board of the Governor General of India for making laws and
guidelines was an Act to eliminate the Garo Hills from the
purview of the courts set up under the General Regulations and
Acts passed by any assembly in British India and gave that "no
Act in the future passed by the Council of the Governor-General
for making laws and guidelines will be regarded to reach out to
any aspect of the said domain except if the equivalent was
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explicitly names in that". The organization of common and
criminal equity inside the said region was vested in such
officials as the Lieutenant-Governor may occasionally delegate.
Segments 8 and 9 of the said Act gave as follows :-

"Segment 8. The said Lieutenant-Governor may every once in a

while, by warning in the Calcutta Gazette, stretch out to the said
domain any law, or any bit of any law, presently in power in
different regions subject to his Government, or which may from
now on be established by the Council of the Governor-General,
or of the said Lieutenant-Governor, for making laws and
guidelines, and may on making such expansion direct by whom
any forces of obligations occurrence to the arrangements so
expanded will be practiced or performed, and make any request
which he will esteem imperative for conveying such
arrangements into activity."

"Area 9. The said Lieutenant-Governor may occasionally, by

warning in the Calcutta Gazette, broaden mutatis mutandis all or
any of the arrangements contained in different areas of this Act
to the Jaintia Hills, the Naga Hills, and to such bit of the Khasi
Hills with respect to the time being structures part of British
India.

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Each such notice will indicate the limits of the domains to which
it applies."

The Lieutenant-Governor of Bengal gave a notice in exercise of

the force gave on him by segment 9 and broadened the
arrangements of the said Act to the region known as the Khasi
and Jaintia Hills and prohibited there from the purview of the
normal common and criminal court. By a dominant part
judgment the Calcutta High Court concluded that the said notice
had no legitimate power or impact. In the Calcutta High Court,
Mr. Kennedy, counsel for the Crown, strikingly guaranteed for
the Indian Legislative Council the ability to move authoritative
capacities to the Lieutenant-Governor of Bengal and Markby J.
outlined the inquiry for choice as follows : "Can the Legislature
give on the Lieutenant-Governor authoritative force ?" Answer :
"It is an overall standard of law inIndia that any considerable
assignment of administrative authority by the Legislature of this
nation is void."

Master Selbourne in the wake of concurring with the High Court

that Act XXII of 1969 was inside the authoritative intensity of
the Governor-General in Council, considered the restricted
inquiry whether reliably with that see the ninth segment of that
Act should in any case to be held void and of no impact. The
Board saw that most of the Judges of the Calcutta High Court
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put together their choice with respect to the view that the ninth
area was not enactment but rather was an appointment of
administrative force. They saw that in the main judgment of
Markby J. the rule of organization was depended upon and the
Indian Legislature appeared to be respected a specialist delegate,
acting under an order from the Imperial Parliament. They
dismissed this view. They watched : "The Indian Legislature has
controls explicitly restricted by the Act of the Imperial
Parliament which made it, and it can, obviously, do nothing past
the cutoff points which encircle these forces. However, when
acting inside those cutoff points, it isn't in any sense an operator
or agent of the Imperial Parliament, yet has, and was planned to
have entire forces of enactment as huge and of a similar sort as
those of Parliament itself. The set up courtrooms, when an
inquiry emerges whether as far as possible have been surpassed,
should of need verify that question; and the main manner by
which they can appropriately do as such, is by looking to the
conditions of the instrument by which, positively, the
authoritative forces were made, and by which, adversely, they
are confined. In the event that what has been done is enactment,
inside the overall extent of the agreed words which give the
force, and in the event that it disregards no express condition or
limitation by which that force is limited....it isn't for any official
courtroom to ask further, or to amplify helpfully those
conditions and limitations.
It was held that Indian administrators have whole powers and it practiced the force in its own
privilege and not as an operator or a representative of the British parliament.

9
The Privy Council set out that "looking for of help of a subordinate organization in the outlining
of rules and guidelines which are to turn into an aspect of the law and presenting on another body
the fundamental authoritative capacities which under the constitution ought to be practiced by
the lawmaking body itself.  It likewise expressed that the basic administrative capacity comprises
in the assurance or picking of the authoritative arrangement and officially establishing that
strategy into restricting standard of lead.

Likewise in King  v. Benoari Lal Sharma Conditional enactment was again applied by the privy
board wherein the legitimacy of a crisis statute by the Governor-General of India was tested bury
alia on the ground that it given to setting up of unique criminal courts for specific sorts of
offenses, yet the real setting up of the courts was left to the Provincial Governments which were
approved to set them up at such time and spot as they thought about appropriate. The Judicial
Committee held that "this isn't designated enactment by any stretch of the imagination. It is only
a case of the normal authoritative force by which the neighborhood use of the arrangements of a
rule is controlled by the judgment of a nearby managerial body concerning its need."

The Privy Council held that "Neighborhood utilization of the arrangement of a state is dictated
by the judgment of a nearby managerial body regarding its need."

Likewise the Federal Court in Jatindra nath v State of Bihar held that intensity of augmentation
with change is unlawful as administrative force can't be appointed. Wherein the S. 1 (3) of Bihar
support of public request Act, 1948 was tested – as it gave intensity of expansion of alteration to
common Govt. however, this case But made questions on the constraints of appointment.

Post –  Independence

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The Delhi Laws Act, 1912, offering capacity to the Government to stretch out to Delhi and
Ajmer-Marwar with such limitations and alterations as it suspected fit any law in power in some
other some portion of India, was held intra vires-The case likewise talked about the legitimacy of
the law enabling the Government to reach out to part C States any law in power in a section A
state and to annul existing laws- - It was held ultra vires

under article 143 of the Constitution asking the Court's conclusion on the three inquiries
submitted for its thought and report. The three inquiries are as per the following :-

"Segment 7 of the Delhi Laws Act, 1912, or any of the arrangements thereof and in what specific
or points of interest or how much ultra vires the Legislature which passed the said Act ?"

Area 7 of the Delhi Laws Act, referenced in the inquiry, runs as follows :-

"The Provincial Government may, by notice in the official periodical, reach out with such
limitations and alterations as it might suspect fit to the Province of Delhior any part thereof, any
institution which is in power in any part of British India at the date of such warning."

"(2) Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the arrangements thereof
and in what specific or points of interest or how much ultra vires the Legislature which passed
the said Act ?"

Area 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947, runs as follows :-

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"Expansion of Enactments to Ajmer-Merwara. - The Central Government may, by warning in the
official journal, reach out to the Province of Ajmer-Merwara with such limitations and
alterations as it might suspect fit any establishment which is in power in some other Province at
the date of such notice." In segment 2 of the Part C States (Laws) Act, 1950, or any of the
arrangements thereof and in what specific or points of interest or how much ultra vires the
Parliament ?"

Area 2 of the Part C States (Laws) Act, 1950, runs as follows :-

"Capacity to stretch out authorizations to certain Part C States. - The Central Government may,
by warning in the Official Gazette, reach out to any Part C State (other than Coorg and the
Andaman and Nicobar Islands) or to any piece of such State, with such limitations and changes
as it might suspect fit, any authorization which is in power in a section A State at the date of the
notice and arrangement might be made in any institution so stretched out for the annulment or
correction of any relating law (other than a Central Act) which is for the time being pertinent to
that Part C State.

The three areas alluded to in the three inquiries are all in regard of what is depicted as the
appointment of authoritative force and the three specific Acts are chosen to bring the inquiry up
in regard of the three principle stages in the established improvement of India. The primary
covers the authoritative forces of the Indian Legislature during the period preceding the
Government of India Act, 1915. The second is in regard of its authoritative force after the
Government of India Act, 1935, as changed by the Indian Independence Act of 1947. The latter
is in regard of the intensity of the Indian Parliament under the current Constitution of 1950.

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As respects constitution of the assignment of administrative forces the Indian Legislature can't be
similarly situated as the unmistakable British Parliament and how far designation is admissible
must be determined in India as a matter of development from the express arrangements of the
Indian Constitution. It can't be said that a boundless right of designation is natural in the council
power itself. This isn't justified by the arrangements of the Constitution and the authenticity of
designation relies totally on its being utilized as an auxiliary measure which the council
considers to be fundamental to practice its authoritative powers adequately and totally. The
assembly should hold in its own hands the basic authoritative capacities which comprise in
announcing the administrative arrangement and setting out the standard which is to be instituted
into a standard of law, and what can be designated in the undertaking of subordinate enactment
which by its very nature is auxiliary to the resolution which appoints the ability to make it.
Furnished the administrative arrangement is articulated with adequate clearness or a standard set
out the courts can't and ought not meddle with the attentiveness that without a doubt rests with
the governing body itself in deciding the degree of designation vital in a specific case. These, as I
would see it, are the cutoff points inside which appointed enactment is protected given obviously
the assembly is able to manage and administer on the specific topic. It is in the light of these
rules that I propose to look at the sacred legitimacy of the three administrative arrangements in
regard to which the reference has been made.

The end should hence fundamentally be that there is a standard against award of basic
administrative force yet the standard was not abused in the current example.

"restriction" "adjustment" has been utilized likewise from a related perspective and it doesn't
include any material or considerable modification. The word reference importance of the
articulation "to adjust" is to "restrain" or "to mellow the unbending nature of the thing" or "to roll
out halfway improvements with no extreme change." It would be very sensible to hold that
"alteration" in area 7 of the Delhi Laws Act implies and connotes changes of such character as
are important to make the resolution which is looked to be stretched out reasonable to the nearby
states of the region. I don't feel that the chief government is qualified for change the entire nature

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or strategy hidden a specific Act or take various parts from various rules and plan what has been
depicted before us as "combination" of a few laws. The Attorney-General has reasonably
conceded before us that these things would be past the extent of the segment itself and if such
changes are made, they would be invalid as contradicting the arrangement of segment 7 of the
Delhi Law Act, however that is no explanation behind holding segment 7 itself to be invalid on
that ground.

"Modification" happening in segment 7 of the Delhi Laws Act doesn't mean or include any
difference in strategy by is restricted to adjustment of such a character which keeps the approach
of the Act flawless and presents such changes as are suitable to nearby states of which the chief
government is made the appointed authority, consequently there is no inappropriate assignment
of administrative forces in segment 7 of the Delhi Laws Act.

The court mentioned the accompanying objective facts:

Give up of basic leg. fn would add up to abandonment of authoritative force in the eye of law
.Court meddle if no direction is discernable or if assignment add up to relinquishment .Limits of
the intensity of appointment in India would must be found out as an issue of development from
the arrangements of the constitution itself.

At that point there is the case of Raj Narain Singh v. Administrator Patna Administration
advisory group  in which S.3(1)(f) of the Bihar and Orissa Act, Empowered the neighborhood
organization to reach out to Patna the arrangements of any segments of the demonstration
( Bengal Municipality Act, 1884) subject to such adjustment, as it may might suspect fit.

The legislature got segment 104 and after alterations applied it to the town of Patna.

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One of the basic highlights of the Act was the arrangement that no district skillful to assessment
could be pushed onto a territory without giving its occupants a possibility of being heard and of
being given as occasion to protest. he segments which accommodated an occasion to protest was
avoided from the notice. It was held as adding up to mess with the strategy of the Act.

In  Lachmi Narain v. UOI, where the legitimacy of Section 2 of Union Territories (Laws) Act,
1950 and Section 6 of Bengal Finance (Sales Tax) Act, 194

1) The force given by Section 2 of the Laws Act to the Central Government to broaden
institutions in power in a State to a Union region, with such limitations and changes, as it might
suspect fit, could be practiced distinctly to make such adjustments in the establishment as were
essential taking into account the impossible to miss neighborhood conditions. The change in
Section 6(2) of the Bengal Act made by SRO 3908, dated October 7, 1957, was not required by
this explanation. It was along these lines, ultra vires Section 2 of the Laws Act.

(2) Such an alteration could be made just once when the Bengal Act was broadened to Delhi in
1951. No alteration could be made after such augmentation.

(3) The adjustment couldn't change the approach of the council reflected in the Bengal Act. The
decried adjustment was in opposition to it, and

(4) The changes pulling out to pulled back the exceptions and the notices gave compatible
thereto pulling back the exclusions from deals charge as for durries, ghee, (and different things
applicable to these petitions) were void as the legal notification of at least three months as
needed by Section 6(2) before its adjustment by the reproved warning of December 7, 1957, had

15
not been given. Finding on all the four grounds for the writ solicitors, the educated Single Judge
pronounce that the implied adjustment of Section 6(2) of the Bengal Finance (Sales Tax) Act,
1941, by the Government of India's warning No. SRO 3908, dated December 7, 1957, was
ineffectual and Section 6(2) keeps on being equivalent to before as though it was not all that
changed by any means. In outcome, he suppressed the administration notices Nos. GSR 964,
dated June 16, 1966 and GSR 1061, dated June 29, 1966, in light of the fact that they were not in
consistence with the prerequisite of Section 6(2) of the Bengal Act.

The conflicts peddled under the steady gaze of the educated Single Judge were rehashed before
the redrafting Bench of the High Court. The Bench didn't distinctly look at the extent of the
intensity of change given to the Central Government by Section 2 of the Laws Act with explicit
reference to the reason for which it was presented and its exact constraints. It didn't
unequivocally disperse the thinking of the educated Single Judge that the intensity of alteration is
an indispensable aspect of the intensity of expansion and "can't consequently be practiced aside
from the motivation behind the augmentation".

In Supreme Court: fights that the intensity of alteration given by Section 2 of the Laws Act,
doesn't debilitate itself on first exercise; it tends to be practiced even along these lines if through
oversight or something else, at the hour of expansion of the establishment, the Central
Government neglects to adjust or change certain arrangements of the all-inclusive sanctioning for
acquiring it accord with nearby conditions. the thinking of the redrafting Bench of the High
Court, that whatever illness may have existed in the criticized warning and the alteration made in
this manner in Section 6(2), it was corrected and relieved by Parliament when it passed the
Amendment Act 20 of 1959. It is asked that the Bengal Act along with the adjustments made by
notices, dated April 28, 1951 and December 7, 1957, probably been before Parliament when it
considered and passed the Amendment Act of 1959. on the off chance that in Section 6(2) the
prerequisite as to "at the very least three months' notification" was required and a matter of
authoritative approach, at that point the exclusions from charge allowed to durries, unadulterated
silk, and so on after the issue of the reproved warning must be dealt with non est and void

16
stomach muscle initio, since the corrections of the Second Schedule whereby those exceptions
were truly, were made without conforming to the necessity of "at the very least three months'
notification". It is contended that if this necessity was a since qua non for alteration of the
Second Schedule, it couldn't be dealt with obligatory in one circumstance and catalog in another.
In the event that it was compulsory, at that point consistence with it would be totally vital both
for allowing an exclusion and pulling back an exception from charge. In this perspective on the
issue, as per Shri B. Sen, the withdrawal of the exception through the denounced warning was a
simple convention; the notices essentially pronounced the withdrawal of something which didn't
exist in the eye of law. Appellants can't, in this way, have any reason for complaint if the invalid
and still-conceived exclusions were pulled back by the inquiry warnings.

Held by the SC: with respect to the contention that the force gave by Section 2 of the Laws Act is
an intensity of restrictive enactment and not an intensity of 'assigned' enactment. As we would
like to think, no valuable reason will be served to seek after this line or contention in light of the
fact that the differentiation propounded between the two classes of authoritative forces has no
effect, on a basic level. In either case, the individual to whom the force is depended can do
nothing past the cutoff points which outline the force; he needs to act - to utilize the expressions
of Lord Selbourne - "inside the overall extent of the certifiable words which give the force" and
without abusing any "express conditions or limitations by which that force is restricted". There is
no sorcery in a name. Regardless of whether you consider it the intensity of "contingent
enactment" as Privy Council called it for Burah's situation it likewise set out that change should
be possible as-the force doesn't debilitate itself on first exercise. What it focal Govt. neglects to
adjust or change at the hour of augmentation.

In the event that at all any imperfection  crops up it tends to be relieved by the change. It will be
certain that the essential force gave by the segment on the Central Government, is one of
augmentation, that is bringing into activity and impact, in a Union domain, an institution as of
now in power in a State. The carefulness presented by the segment to make 'limitations and
changes; in the order tried to be broadened, is anything but a different and free force. It is a basic

17
constituent of the forces of expansion. It can't be practiced separated from the intensity of
expansion. This is unquestionably obvious from the relational word "with" which quickly goes
before the expression 'such limitations and changes' and conjoins it to the central provision of the
part which gives the intensity of augmentation. As per the Shorter Oxford Dictionary, one
significance of "with", (which agrees here with the unique situation), is "important for a similar
entirety".

The force given by Section 2 debilitates itself on augmentation of the establishment; it can't be
practiced over and over or along these lines to such expansion. It very well may be practiced just
a single time, all the while with the expansion of the authorization. This is one element of as far
as possible which surround the force. The second is that the force can't be utilized for a reason
other than that of expansion. In the activity of this force, just such limitations and alterations can
be legitimately engrafted in the sanctioning looked to be expanded, which are important to
acquire it into activity and impact the Union domain. "Alterations" which are redundant for, or
auxiliary and compliant to the reason for augmentation, are not admissible. Also, just such
"changes" can be honestly fundamental for such reason as are needed to change, adjust and make
the sanctioning appropriate to the particular nearby states of the Union domain for conveying it
into activity and impact. With regards to the part, the words "limitations and adjustments" don't
cover such modifications as include an adjustment in any fundamental component, of the order
or the authoritative approach incorporated with it. This is the third component of the limits that
encircle the force.

The facts confirm that "such limitations and alterations as it might suspect fit", whenever
interpreted in a real sense and in segregation, seem to give liberated intensity of changing and
adjusting the institution looked to be expanded. Such a wide development must be shunned in
case the very legitimacy of the segment gets helpless by virtue of the bad habit of unreasonable
designation. Additionally, such a development would be repulsive to the specific circumstance
and the substance of the segment, perused in general, and as far as possible and conditions
appending to the activity of the force. We should, hence, bind the extent of the words

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"limitations and adjustments" to modifications of such a character which keep the inbuilt
arrangement, embodiment and substance of the order tried to be expanded, unblemished, and
present just such fringe or meager changes which are suitable and important to adjust and change
it to the nearby states of the Union region.

End

Parliament investigates most designated enactment to guarantee that their arrangements don't
surpass the forces affirmed by Parliament itself.

This duty to investigate appointed enactment has been relegated to the Standing Joint Committee
for the Scrutiny of Regulations. Notwithstanding the terms of reference set out by the House
itself, this current Committee's command is partially portrayed by a demonstration of
Parliament. Its exercises in some cases lead to the conjuring of uncommon strategies in the
House when the Committee makes a report to the House pushing the disavowal of a guideline.

The governing body must hold in its own hands the basic authoritative capacities which comprise
in pronouncing the administrative arrangement and setting out the standard which is to be
authorized into a standard of law, and what can be assigned in the undertaking of subordinate
enactment which by its very nature is auxiliary to the resolution which designates the ability to
make it. Furnished the authoritative approach is articulated with adequate clearness or a standard
set out the courts can't and ought not meddle with the circumspection that without a doubt rests
with the lawmaking body itself in deciding the degree of appointment essential in a specific case.
These, as I would see it, are the cutoff points inside which assigned enactment is sacred given
obviously the legislation.

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BIBLIOGRAPHY

1.MP.JAIN & S.N. JAIN, “ Principles of Administrative Law”, Lexis Nexis, 7th Edition, 2011

2.PETER CANE, “Administrative Law”, Oxford University Press,5th Edition,2011

3.I.P. MASSEY, “Administrative Law”, Eastern Book Company, 7th Edition 2008

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Law Articles

Discretion is the Science of understanding to discern between falsity and truth, between wrong
and right, between shadow and substance, between equity and colourable glasses and pretences,
and not to do according to their wills and private affection. - Justice Coke

Administrative law is the body of law that governs the activities of administrative agencies of
government. Government agency action can include rulemaking, adjudication, or the
enforcement of a specific regulatory agenda. Administrative law is considered a branch of public
law. As a body of law, administrative law deals with the decision-making of administrative units
of government (e.g., tribunals, boards or commissions) that are part of a national regulatory
scheme in such areas as police law, international trade, manufacturing, the environment,
taxation, broadcasting, immigration and transport. Administrative law expanded greatly during
the twentieth century, as legislative bodies worldwide created more government agencies to
regulate the increasingly complex social, economic and political spheres of human interaction.

Civil law countries often have specialized courts, administrative courts, that review these
decisions. The plurality of administrative decisions contested in administrative courts are related
to taxation. Administrative law has a tremendous social function to perform. It is the body of
reasonable limitations and affirmative action parameters, which are developed, and
operationalised by the legislature and the courts to maintain and sustain the rule of law. The
courts, through writs of habeas corpus, mandamus, certiorari, prohibitio and quo warranto,
control administrative action. The source of Administrative law is the statutes, statutory
instruments, precedents and customs. The article discusses the doctrine of legitimate expectation,
Public Accountability and doctrine of proportionality. The increased power of the administration
judicial control has become an important area of administrative law, because courts have proved
more effective and useful than the legislative or the administrative powers.

21
In simple terms, the Rule of Law requires that government operate within the confines of the
law; and that aggrieved citizens, whose interests have been adversely affected, be entitled to
approach an independent court to adjudicate whether or not a particular action taken by, or on
behalf of, the state is in accordance with the law. In these instances, the courts examine a
particular decision made by an official, or an official body, to determine whether it falls within
the authority conferred by law on the decision-maker. In other words, the courts rule as to
whether or not the decision is legally valid. In so doing, the judges do not substitute their own
discretion and judgement for that of the government.

They simply rule whether the government or its officials have acted within the ambit of their
lawful authority. Thus, the judges do not govern the country and, do not displace the government
when government decisions are challenged in the courts. With the increasing dominance of the
private sector in many countries, and the emphasis of government activity shifting from direct
participation (through government-owned corporations) to regulation (as often as not, of
privatised activities), the role of the courts is, if anything, becoming even more important.
Decisions of government regulators impact directly on the private sector interests that they are
regulating, and the private sector will look to the courts with greater frequency to shield it from
excessive or abusive use of regulatory powers. At times the courts will be expected to go further,
and actually review the legality of decisions being made in the private sector itself, applying the
principles of administrative law (previously applicable only to official institutions), where these
decisions impact significantly on the public interest.

Judicial review is the doctrine in democratic theory under which legislative and executive action
is subject to invalidation by the judiciary. Specific courts with judicial review power may annul
the acts of the state when it finds them incompatible with a higher authority, such as the terms of
a written constitution. Judicial review is an example of the functioning of separation of powers in
a modern governmental system (where the judiciary is one of three branches of government).
This principle is interpreted differently in different jurisdictions, which also have differing views
on the different hierarchy of governmental norms. As a result, the procedure and scope of
judicial review differs from country to country and state to state.

Constitutional judicial review is usually considered to have begun with the assertion by John
Marshall, chief justice of the United States (1801–35), in Marbury v. Madison (1803), that the

22
Supreme Court of the United States had the power to invalidate legislation enacted by Congress.
There was, however, no express warrant for Marshall's assertion of the power of judicial review
in the actual text of the Constitution of the United States; its success rested ultimately on the
Supreme Court's own ruling, plus the absence of effective political challenge to it.

Courts engaged in judicial review of administrative action are increasingly using the term
'rationality' to describe at least some aspects of the standards of good administrative decision-
making embodied in judicial review grounds. However, while 'rationality' is probably the most
ubiquitous concept used in studying how humans behave, its meaning is often unclear. The
legality–merits distinction has replaced the distinction between jurisdictional and non-
jurisdictional questions as an organising principle of judicial review. Jurisdictional questions
remain relevant, but legality is wider than jurisdiction and encompasses rationality requirements.

Introduction of The Case

Administrative action is stated to be referable to broad area of governmental activities in which

the repositories of power may exercise every class of statutory function of executive, quasi-
legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or
administrative, will be set aside if there is manifest error in the exercise of such power or the
exercise of the power is manifestly arbitrary.

The Court will be slow to interfere in such matters relating to administrative functions unless
decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety.
Whether action falls within any of the categories has to be established. Mere assertion in that
regard would not be sufficient.

Acts/ Rules/ Orders

Indian Railway Construction Co. Ltd. (Conduct, Discipline and Appeal) Rules (1981), R.30(2) -
DISMISSAL - Dismissal from service - That enquiry will take some time cannot be a ground to
dispense with enquiry.

Constitution of India, 14. Equality before law.- The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.

23
Constitution of India Article-311- Dismissal, removal or reduction in rank of persons employed
in civil capacities under the Union or a State.-

(1) No person who is a member of a civil service of the Union or an all-India service or a civil
service of a State or holds a civil post under the Union or a State shall be dismissed or removed
by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an
inquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not
be necessary to give such person any opportunity of making representation on the penalty
proposed:

Provided further that this clause shall not apply-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which
has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the
security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably
practicable to hold such inquiry as is referred to in clause (2) the decision thereon of the
authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

Constitution of India, Article 226- Power of High Courts to issue certain writs-

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and

24
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without

(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32

Administrative Law, Judicial Review- Administrative action - Interference by Court Justified

when manifest error in exercise of power or its exercise in manifestly, arbitrary manner by
concerned authority - Or when decision suffers from illegality, irrationality or procedural
impropriety. Test to determine reasonableness and irrationality.

Facts

The respondent (hereinafter referred to as 'the employee') was appointed on a probation basis in
May, 1981. His appointment was on temporary basis and he was not confirmed even after the
initial period of probation. Alleging that he assaulted a senior officer and along with others
ransacked the office creating chaotic condition, an order of dismissal was passed on 7-12-1983.
25
On the alleged date of incident, information was lodged with police. The order was passed in
respect of two employee the present appellant and one Mr. V. K. Talwar. It was pointed out in
the order of dismissal that it would not be practicable to hold an enquiry before directing
dismissal. The respondent-employee, on the other hand, alleged that the order of dismissal was
the outcome of victimization. He took a stand in the writ petition filed before the Delhi High
Court that because of union activities, he had become an The respondent (hereinafter referred to
as 'the employee') was appointed on a probation basis in May, 1981.

His appointment was on temporary basis and he was not confirmed even after the initial period
of probation. Alleging that he assaulted a senior officer and along with others ransacked the
office creating chaotic condition, an order of dismissal was passed on 7-12-1983. On the alleged
date of incident, information was lodged with police. The order was passed in respect of two
employee the present appellant and one Mr. V. K. Talwar. It was pointed out in the order of
dismissal that it would not be practicable to hold an enquiry before directing dismissal. The
respondent-employee, on the other hand, alleged that the order of dismissal was the outcome of
victimization. He took a stand in the writ petition filed before the Delhi High Court that because
of union activities, he had become an eyesore of the management, and the order of dismissal
without holding an enquiry was violative of law and was at variance with the requirements of
Art. 311(2) of the Constitution of India, 1950 (in short 'the Constitution').

Learned single Judge was of the view that in a given case, enquiry can be dispensed with; but the
case at hand was not of that nature. It was further held that the protection under Art. 311(2) was
available and non-observance of the procedure vitiated the order of dismissal. The matter was
challenged in Letter Patents Appeal before the Division Bench of the Delhi High Court by the
present appellant. It was submitted that there was no scope for judicial review of the order
dispensing with enquiry. The order of dismissal was quashed on the ground that it was activated
with mala fides. Though, it was observed that the decision whether an enquiry was to be
conducted or not and could be dispensed with was primarily that of the concerned authority; it
could not be his ipse dixit and a given case could be judicially reviewed. In any event, Art.
311(2) had no application. The Division Bench by the impugned judgment held that Art. 311(2)
was not attracted. However, it upheld the judgment of the learned single Judge holding that on a
limited judicial review, the order dispensing with enquiry was not sustainable.

Issues

Ø Whether it is appropriate to dispense the enquiry on the ground that it will take time to
commence?

26
Ø Whether on the basis of a presumptuous conclusion, that delinquent is indulged in giving
threats, coercion and undue influence to other employees, the concerned authority should not
dispense with enquiry?

Ø Whether the power to dismiss an employee by dispensing with an enquiry is be exercised so as

to circumvent the prescribed rules?

Ø Whether the interference of the court is justified or reasonable when there is manifest error in
exercise of power by concerned authority?

Ø Whether it is possible hold enquiry by HC on the ground that dispensing with enquiry was
mala fide though there was no specific allegation of mala fide?

Ø Whether it is appropriate to direct the authorities to hold the enquiry by the HC in absence of
the power to hold the enquiry?

Contentions

Appellant:

In support of the appeal, Mr. Mukul Rohtagi, learned Additional Solicitor General appearing for
the appellant submitted that the Division Bench was not justified in upholding conclusions of the
learned single Judge about the scope of judicial review. Both the learned single Judge and the
Division Bench proceeded to deal with the matter as if mala fides had been established. There
was no finding recorded that the incident did not take place. On the contrary, both the learned
single Judge and the Division Bench accepted that certain incident took place. After having held
so, the plea on the presumptuous ground that the respondent-employee was the victim of bias and
the authorities acted with mala fides, cannot be sustained. There was no specific plea relating to
mala fides and even persons who allegedly acted mala fide were not impleaded in the writ
petition. Residually, it was submitted that the employer lost confidence on the employee for his
grave acts of misconduct, which had adversely effected the image and reputation of the employer
as the incident took place in the presence of valued customers, some of whom were foreign
customers. If the High Court felt that the dismissal was untenable in the absence of enquiry at the
most it could have directed enquiry before dismissal order was effectuated. The dismissal order
could not have, in any event, been set aside without any such direction. These aspects have also
to be considered along with the plea relating to loss of confidence.

Respondent:

In response, learned counsel for the respondent-employee submitted that the facts are telltale and
the background highlighted by the respondent in the writ petition clearly shows that management
27
was bent upon dismissing him for his union activities. That was sufficient to prove mala fides
and even if no particular person was impleaded, the management acted in unison through some
of its officers for his dismissal from employment. It was submitted that the High Court was
correct in holding that the order of dismissal was illegal.

It was submitted that though there was no assertion in the writ petition that the alleged incident
did not take place, the same was on account of the fact that the employee was not aware of the
alleged incident. In fact, the order dispensing with enquiry surfaced much later and in the
rejoinder affidavit it was pleaded. In respect of the plea relating to loss of confidence, it was
submitted that such a stock plea cannot be permitted to be raised, as every employer can take the
plea and thereby crush the employee's right to raise legitimate demands through unions.

Judgment

It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is
not be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts
exist to justify dispensing with enquiry has to be of the disciplinary authority. Where two views
are possible as to whether holding of an enquiry would have been proper or not, it would not be
within the domain of the Court to substitute its view for that of the disciplinary authority as if the
Court is sitting as an appellate authority over the disciplinary authority. The contemporaneous
circumstances can be duly taken note of in arriving at a decision whether to dispense with an
enquiry or not. What the High Court was required to do was to see whether there was any scope
for judicial review of the disciplinary authority's order dispensing with enquiry. The focus was
required to be on the impracticability or otherwise of holding the enquiry.

One of the points that falls for determination is the scope for judicial interference in matters of
administrative decisions. Administrative action is stated to be referable to broad area of
governmental activities in which the repositories of power may exercise every class of statutory
function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of
power, whether legislative or administrative, will be set aside if there is manifest error in the
exercise of such power or the exercise of the power is manifestly arbitrary. ( State of U.P. and
others v. Renusagar Power Co. and others[1]).

At one time, the traditional view in England was that the executive was not answerable where its
action was attributable to the exercise of prerogative power. Professor De Smith in his classical
work "Judicial Review of Administrative Action" (4th Edition at pages 285-287) states that, the

28
legal position in his own terse language that the relevant principles formulated by the Courts may
be broadly summarised as follows. The authority in which a discretion is vested can be
compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a
discretion must be exercised only by the authority to which it is committed. That authority must
genuinely address itself to the matter before it; it must not act under the dictates of another body
or disable itself from exercising a discretion in each individual case. In the purported exercise of
its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been
authorised to do. It must act in good faith, must have regard to all relevant considerations and
must not be influenced by irrelevant considerations, must not seek to promote purposes alien to
the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or
capriciously.

From the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury
Corpn.[2]. It reads as follows:

". . . . . . . . .It is true that discretion must be exercised reasonably. Now what does that mean?
Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often
use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is
frequently used as a general description of the things that must not be done. For instance, a
person entrusted with a discretion must, so to speak, direct himself properly in law. He must call
his own attention to the matters which he is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he has to consider. If he does not obey those
rules, he may truly be said, and often is said to be acting 'unreasonably.' Similarly, there may be
something so absurd that no sensible person could even dream that it lay within the powers the
authority. . . . . . . In another, it is taking into consideration extraneous matters. It is unreasonable
that it might almost be described as being done in bad faith; and in fact, all these things run into
one another."

The principles of judicial review of administrative action were further summarised in 1985 by
Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more
grounds could in future become available, including the doctrine of proportionality which was a
principle followed by certain other members of the European Economic Community. Lord
Diplock observed in that case as follows:

". . . . . . . .Judicial review has I think, developed to a stage today when, without reiterating any
analysis of the steps by which the development has come about, one can conveniently classify
under three heads the grounds on which administrative action is subject to control by judicial
review. The first ground I would call 'illegality,' the second 'irrationality' and the third 'procedural
impropriety.' That is not to say that further development on a case-by-case basis may not in

29
course of time and further grounds. I have in mind particularly the possible adoption in the future
of the principle of 'proportionality' which is recognised in the administrative law of several of our
fellow members of the European Economic Community."

It was observed thus : P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar[3]:

"The Labour Court being the final Court of facts came to a conclusion that payment of 60%
wages would comply with the requirement of law. The finding of perversity or being erroneous
or not in accordance with law shall have to be recorded with reasons in order to assail the finding
of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of
the matter and there is an existing limitation on the High Court to that effect."

Therefore, again at paragraph 12 of this case, this Court observed:

"Payment of backwages having a discretionary element involved in it has to be dealt with, in the
facts and circumstances of each case and no strait-jacket formula can be evolved, though,
however, there is statutory sanction to direct payment of backwages in its entirety. ( Hindustan
Motors Ltd. v. Tapan Kumar Bhattacharya and another[4]):

In our considered opinion, a further payment of Rupees 12 lacs towards backwages and for
giving effect to the order of dismissal on the ground of loss of confidence would suffice. The
total amount of Rupees 15 lacs shall be in full and final settlement of all claims. The payment is
to be paid within eight weeks from today after making permissible deductions statutorily
provided and/or adjustments, if any, to be made. Thus, the appeal is accordingly disposed of in
the above terms.

Relevance of Judicial Review In Administrative Action

Judicial review of administration is, in a sense, the heart of administrative law. It is certainly the
most appropriate method of inquiring into the legal competence of a public authority. The
aspects of an official decision or an administrative act that may be scrutinized by the judicial
process are the competence of the public authority, the extent of a public authority's legal
powers, the adequacy and fairness of the procedure, the evidence considered in arriving at the
administrative decision and the motives underlying it, and the nature and scope of the
discretionary power. An administrative act or decision can be invalidated on any of these
grounds if the reviewing court or tribunal has a sufficiently wide jurisdiction. There is also the
question of responsibility for damage caused by the public authority in the performance of its
functions. Judicial review is less effective as a method of inquiring into the wisdom, expediency,

30
or reasonableness of administrative acts, and courts and tribunals are unwilling to substitute their
own decisions for that of the responsible authority.

Judicial review of administration varies internationally. Sweden and France, for instance, have
gone as far as subjecting the exercise of all discretionary powers, other than those relating to
foreign affairs and defense, to judicial review and potential limitation. Elsewhere, a
preoccupation with procedure results in judicial review deciding only whether the correct
procedure was observed rather than examining the substance of the decision.

It is of course impractical to subject every administrative act or decision to investigation, for this
would entail unacceptable delay. The complainant must, therefore, always make out a prima
facie case that maladministration has occurred.

In judicial review of administration at a national level, a country's history, politics, and

constitutional theory all play their part. There are, broadly, three major systems: the common-law
model; the French, or council of state, model; and the procurator model.

Conclusion And Suggestion

It is a fundamanetal principle of law that every power must be exercised within the four corners
of law and within the legal limits. Exercise of administrative power is not an exception to that
basic rule. The doctrines by which those limits are ascertained and enforced form the very
marrow of administrative law. Unfettered discretion cannot exist where the Rule of Law reigns.
Again, all power of capable of abuse, and that the power to prevent the abuse is the acid test of
effective judicial review[5].

Under the traditional theory, courts of law used to control existence and the extent of prerogative
power but not the manner of exercise thereof. That position was, however, considerably modified
after the decision in Council of Civil Service Union v. Minister for Civil Service[6], wherein it
was emphasized that the reviewability of descretionart power must depend upon the subject

31
matter and not upon its source. The extent and degree of Judicial review and justifiable area may
vary from case to case.

At the same time, however, the power of judicial review is not unqualified or unlimited. If the
courts were to assumejurisdiction to review administrative acts which are unfair in their opinion,
the courts would assume jurisdiction to do the very thing which is to be done by administration.
If judicial review were to tresspass on the merits of the exercise of administrative power, it
would put its own legitimacy at risk.

Bibliography

Books:

Takwani C. K. , Lectures on Administrative Law, Eastern Book Company, 3rd Edition

Articles:

Fox-Decent, P. E. (2006). Judicial review of Administrative Action.

Justice Fazal Karim, F. J. (n.d.). Judcial Review of Administrative Action.

Muhammad Bashir Jehangiri, F. C. (n.d.). Judicial Review of Administrative Action.

[1] AIR 1988 SC 1737

[2] KB at p. 229 : All ER p. 682, 1948 (1) KB 223 : (1947) 2 All ER 680

[3] AIR 2001 SC 479

[4] AIR 2002 SC 2676

[5] Wade: Administrative Law, (1994), pg. 39-41

[6] (1984) 3 All ER 935

The author can be reached at: mansitrivedi3@legalserviceindia.com / ph no: 09428835903 / Print

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