COURSE – IV; ADMINISTRATIVE LAW

Objectives:
One of the perennial problems of the civilized society is to control the exercise of public
power. Administrative Law is concerned with controlling the misuse of public power, by
laying down general norms of administrative behavior. This course will deal with the nature,
scope and functions of Administrative Law, the nature and control of delegated legislative
power, regulation of discretionary powers and general principles of Administrative
adjudication. This course further deals with the role played by courts in the development of
Administrative Law. The Focus is on their role in protecting the rights of individuals against
abuse of administration. In addition, adjudicatory powers of the administration and liability of
administrative authorities are also studied in this course.

Course contents:
UNIT – I
Definition of administrative law -Nature and Scope of Administrative Law –the impact and
implications of the doctrine of Separation of powers and Rule of law on administrative law –
Classification of Administration Action – the necessity.

UNIT – II
Legislative power of the administration-doctrine of vice of excessive delegation- Judicial and
parliamentary control over delegated Legislation – advantages and disadvantages of delegated
legislation – exclusion of judicial review of delegated legislation, administrative directions.

UNIT – III
Judicial power of Administration- testes to determines when an administrative authority
required to act judicially- doctrine of bias- doctrine of audi alterm partem- reasoned decision- Exception
to principles of Natural Justice- effect of non compliance with ruled of natural justice- grounds on which
decision of quasi judicial authority can be flaged before supreme court.

UNIT – IV
Administrative discretion – grant and exercise of discretion – judicial review of administrative
discretion, control of administrative action- Judicial control – Public Law Review and Private Law
Review of Administration action- distinction -Writs- theory, practice and procedure – ouster clauses-
Liability of State Torts, Contract- Promissory Estoppel-Government Privileges- Right of Information-
Doctrine of Legitimate expectation- Doctrine of Proportionality.

UNIT – V
Corporation and Public undertaking- control of statutory corporations and public undertakings
– administrative deviance- corruption and mal administration- control mechanism. Ombudsman in India
[Lokpal and Lokayuktha] – Central Vigilance Commission- Parliamentary Committees-commission of
enquiry.

Prescribed Books:
M.P.Jain & S.N.Jain – Principles of Administrative Law.
Reference Books:
Wade – Administrative Law
De Smith – Judicial Review of Administrative Action.
S.P. Sathe – Administrative Law.
I.P.Massey – Administrative Law.
 Second Semester of Three Years LL.B./Sixth Semester of Five Years
B.A., LL.B. /B.B.A., LL.B. Examination
ADMINISTRATIVE LAW

1. Define Administrative Law. What are the factors responsible for the growth of
Administrative Law? Differentiate between Administrative law and Constitutional
Law.
2. Explain the nature and scope of administrative law. Discuss the various sources of
Administrative Law.
3. Explain the concept of rule of law and examine how it is incorporated into the Indian
Constitution.
4. Critically examine the doctrine of separation of power.
5. Explain ‘Delegated Legislation’. What are the reasons for the growth of delegated
legislation?
6. ‘‘Essential Legislative Powers cannot be delegated by the legislature’’ – Explain. Refer
to decided cases.
7. Explain parliamentary control of delegated legislation.
8. Explain judicial control of delegated legislation.
9. State the rule against bias. Support your answer with relevant case laws. Or “Rule
against Bias” is one of the concepts of “Fair hearing”. Discuss with the help of decided
cases.
10. “Audi Alterm Partem” is sine Quo non of “Fair hearing”. Discuss with the help of
decided cases.
11. Discuss the exceptions to the principles of natural justice with decided cases.
12. What is public undertaking ? Explain the various controls over these public
undertakings.

Short note questions:

1. Administrative discretion.
2. Henry VIII clause.
3. Permissible delegation
4. Droit Administratiff.
5. Sub-delegation.
6. Explain ‘Reasoned Decision’.
7. Lokpal and Lok Ayukta.

Discuss the liabilities of the state for the tortious acts of its servants.
 Nature and Definition of administrative Law

Administrative Law is, in fact, the body of those which rules regulate and control the
administration. Administrative Law is that branch of law that is concerned with the
composition of power, duties, rights and liabilities of the various organs of the Government
that are engaged in public administration. Under it, we study all those rules laws and procedures
that are helpful in
Properly regulating and controlling the administrative machinery. There is a great
divergence of opinion regarding the definition/conception of administrative law. The reason
being that there has been tremendous increase in administrative process and it is impossible to
attempt any precise definition of administrative law, which can cover the entire range of
administrative process.

Let us consider some of the definitions as given by the learned jurists.

Austin has defined administrative Law. As the law, which determines the ends and modes
to which the sovereign power shall be exercised. In his view, the sovereign power shall be
exercised either directly by the monarch or directly by the subordinate political superiors to
whom portions of those are delegated or committed in trust.

Holland regards Administrative Law “one of six” divisions of public law. In his famous
book “Introduction to American Administrative Law 1958”,

Bernard Schawartz has defined Administrative Law as “the law applicable to those
administrative agencies which possess of delegated legislation and ad judicatory authority.”

Prof. Wade administrative law is concerned with the operation and control of the powers
of administrative authorities with emphasis on functions rather than on structure.

Prof. Hart. Broadly conceived administrative law includes law that controls the
administrative authorities of a government.

Jennings has defined Administrative Law as “the law relating to the administration. It
determines the organization, powers and duties of administrative authorities.”

Dicey in 19th century defines it as.

● Firstly, portion of a nation’s legal system which determines the legal statues and
liabilities of all State officials.
● Secondly, defines the right and liabilities of private individuals in their dealings
with public officials.
● Thirdly, specifies the procedure by which those rights and liabilities are enforced.
This definition suffers from certain imperfections. It does not cover several aspects of
administrative law, e.g. it excludes the study of several administrative authorities such as public
corporations which are not included within the expression “State officials,” it excludes the
study of various powers and functions of administrative authorities and their control. His
definition is mainly concerned with one aspect of administrative. Law, namely, judicial control
of public officials.

A famous jurist Hobbes has written that there was a time when the society was in such a
position that man did not feel secured in it. The main reason for this was that there were no
such things as administrative powers. Each person had to live in society on the basis of his own
might accordingly to Hobbes, “ In such condition, there was no place for industry, arts, letters
and society. Worst of all was the continual fear of danger, violent death and life of man solitary
poor, nasty and brutish and short.

The jurists are also of the view that might or force as a means for the enforcement of any
decision by man could continue only for some time. To put it is other words, the situation of
“might is right” was only temporary. It may be said to be a phase of development. This can be
possible only through the medium of law. Hence, law was made and in order to interpret it and
in order to determine the rights and duties on the basis of such interpretation, this work was
entrusted to a special organ that we now call judiciary. The organ, which was given the function
of enforcing the decision of judicial organ, is called executive. It has comparatively a very little
concern with the composition of the executive organ.

K.C. Davis has defined administrative law in the following words: “ Administrative Law
is the law concerning the powers and procedures of administrative agencies including specially
the law governing judicial review of administrative action.”

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

• The legislative powers of the administration both at common law and under a vast mass
of statutes.
• The administrative powers of the administration.
• Judicial and quasi-judicial powers of the administration, all of them statutory.
• The legal liability of public authorities.
• The powers of the ordinary courts to supervise the administrative authorities.

The Indian Institution of Law has defined Administrative Law in the following words;
“ Administrative Law deals with the structure, powers and functions of organs of
administration, the method and procedures followed by them in exercising their powers and
functions, the method by which they are controlled and the remedies which are available to a
person against them when his rights are infringed by their operation.”

A careful perusal of the above makes it clear that Administrative Law deals with the
following problems:
A. Who are administrative authorities?
B. What is the nature and powers exercised by administrative authorities?
C. What are the limitations, if any, imposed on these powers?
D. How the administration is kept restricted to its laminose?
E. What is the procedure followed by the administrative authorities?
F. What remedies are available to persons adversely affectedby administration?

Thus the concept of administrative law has assumed great importance and remarkable
advances in recent times. There are several principles of administrative law, which have been
evolved by the courts for the purpose of controlling the exercise of power. So that it does not
lead to arbitrariness or despotic use of power by the instrumentalities or agencies of the state.
During recent past judicial activism has become very aggressive. It was born out of desire on
the part of judiciary to usher in rule of law society by enforcing the norms of good governance
and thereby produced a rich wealth of legal norms and added a new dimension to the discipline
administrative law.
In view of above discussion we can derive at the following conclusions so far as nature
and scope of administrative law is concerned: -
Nature and scope of administrative law

1. It is not codified law

2. It is branch of public law and primarily deals with government and its instrumentalities
3. It is wider than the specific codified laws
4. Administrative law is essentially judge made law
5. Administrative law relates to individual rights, public needs and ensures transparent,
openness, and honest government.
6. Administrative law deals with the organization powers and functions of administrative
and guasi administrative agencies
7. Administrative law includes the control mechanism by which administrative authorities
are kept within their boundaries
8. Administrative law must be subordinate and consistent with constitutional law
9. The main object of administrative law is to maintain a balance between the power and
liberty
10. It also covers the remedies to public against administrative agencies in case of rights of
public are infringed.
11. It is flexible and functional rather than theoretical
12. It is a study of multifarious powers of administrative authorities.
13. Administrative law subordinate to supreme law
14. Administrative law provides for the control mechanism on multifarious powers of
administrative authorities

15. Administrative law primarily concerns with official action and the procedure by which
the official action is reached.
Scope of Administrative law

1. Establishment, organization and powers of various administrative bodies

2. Delegated legislation- rule make power of authorities
3. Quasi judicial functions of administrative authorities
4. Procedural guarantees i.e. natural principles of justice
5. Remedies available to victims against authorities in case of breach or rights
6. Liabilities of government and its instrumentalities in case of breach of contract and
commission of tort
7. Public corporations

The following factors are responsible for the rapid growth and development of
administrative law:
1. There is a radical change in the philosophy as to the role played by the State. The
negative policy of maintaining 'law and order' and of 'laissez faire' is given up. The State has
not confined its scope to the traditional and minimum functions of defence and administration
of justice, but has adopted the positive policy and as a welfare State has undertaken to perform
varied functions.

2. Urbanization - Due to the Industrial Revolution in England and other countries and due to
the emergence of the factory system in our country, people migrated from the countryside to
the urban areas in search of employment in factories and large scale industries. As a result of
which there arose a need for increase in providing housing, roads, parks, effective drainage
system etc. Legislations were enacted to provide all these basic facilities and accordingly
administrative authorities were required to make rules and regulations, frame schemes for
effective infrastructure and facilities which ultimately lead to the growth of administrative law.

3. To meet Emergency Situations – Enacting legislations, getting assent from the President
is all a lengthy process, whereas it is very easy and quick to frame schemes and rules for
meeting any emergency situations that arise in a locality. Due to the flexibility of making the
rules, obviously there is a constant growth of administrative law making in the country.

4. The judicial system proved inadequate to decide and settle all types of disputes. It was
slow, costly, inexpert, complex and formalistic. It was already overburdened, and it was not
possible to expect speedy disposal of even very important matters, e.g. disputes between
employers and employees, lockouts, strikes, etc. These burning problems could not be solved
merely by literally interpreting the provisions of any statute, but required consideration of
various other factors and it could not be done by the ordinary courts of law. Therefore,
industrial tribunals and labour courts were established, which possessed the techniques and
expertise to handle these complex problems.

5. The legislative process was also inadequate. It had no time and technique to deal with all
the details. It was impossible for it to lay down detailed rules and procedures, and even when
detailed provisions were made by the legislature, they were found to be defective and
inadequate, e.g., rate fixing. And, therefore, it was felt necessary to delegate some powers to
the administrative authorities.

6. There is scope for experiments in administrative process. Here, unlike legislation, it is

not necessary to continue a rule until commencement of the next session of the legislature.
Here a rule can be made, tried for some time and if it is found defective, it can be altered or
modified within a short period. Thus, legislation is rigid in character while the administrative
process is flexible.

7. The administrative authorities can avoid technicalities. Administrative law represents

functional rather than a theoretical and legalistic approach. The traditional judiciary is
conservative, rigid and technical. It is not possible for the courts to decide the cases without
formality and technicality. The administrative tribunals are not bound by the rules of evidence
and procedure and they can take a practical view of the matter to decide complex problems.
8. Administrative authorities can take preventive measures, e.g. licensing, rate fixing, etc.
Unlike regular courts of law, they have not to wait for parties to come before them with
disputes. In many cases, these preventive actions may prove to be more effective and useful
than punishing a person after he has committed a breach of any provision or law. As Freeman
says, "Inspection and grading of meat answers the consumer's need more adequately than does
a right to sue the seller after the consumer is injured."

9. Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures; e.g. suspension, revocation and cancellation of licenses, destruction of
contaminated articles, etc. which are not generally available through regular courts of law.

10. Constitutional goals, flexible, speedy, not technical, functional, not expensive, not time
consuming, no need to follow procedural aspects, not rigid, technical. Etc.

Constitutional Law Administrative Law

1. Constitutional law is genus. 1. Administrative law is a species of

constitutional law.
2. It deals with those organs as in motion.
2. Constitutional law deals with various
organs of the state.
3. It deals with the structure of the state. 3. It deals with the functions of the state.
4. It is the highest law. 4. It is subordinate to constitutional law.
5. It gives the guidelines with regard to the 5. It deals in details with the powers and
general principles relating to organization functions of administrative authorities.
and powers of organs of the state, and
their relations between citizens and
towards the state. It touches almost all
branches of laws in the country.
6. It also gives the guidelines about the 6. It does not deal with international law. It
international relations. deals exclusively the powers and
functions of administrative authorities.
 RULE OF LAW

Introduction: The Expression “ Rule of Law” plays an important role in the administrative
law. It provides protection to the people against the arbitrary action of the administrative
authorities. The expression ‘rule of law’ has been derived from the French phrase ‘la Principle
de legality’. i.e. a government based on the principles of law. In simple words, the term ‘rule
of law, indicates the state of affairs in a country where, in main, the law rules. Law may be
taken to mean mainly a rule or principle which governs the external actions of the human beings
and which is recognized and applied by the State in the administration of justice.
Dicey evolved the concept of Rule of Law while he was delivering lectures to the law
students in Oxford University, England. The concept of Rule of Law can be traced from the
time of the Romans, who called it ‘Just Law’, to the Medieval period where it was called the
‘Law of God.’ The social contractualists, such as Hobbes, Locke and Rousseau, called the Rule
of Law as the Natural Law.

Meaning
According to Dicey, the Rule of Law is one of the fundamental principles of the English
Legal System. In his book, ‘The Law of the Constitution’, he attributed the following three
meanings to the said doctrine:

(1) The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be
made to suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land. (The view of Dicey,
quoted by Garner in his Book on ‘Administrative Law’.)
(2) The Second Meaning of the Rule of Law is that no man is above law. Every man
whatever be his rank or condition. is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals (Ibid).
(3) The Third meaning of the rule of law is that the general principle of the constitution are
the result of judicial decisions determining the rights of private persons in particular
cases brought before the court.

Basic Principles of the Rule of Law

● Law is Supreme, above everything and every one. No body is the above law.
● All things should be done according to law and not according to whim
● No person should be made to suffer except for a distinct breach of law.
● Absence of arbitrary power being hot and sole of rule of law
● Equality before law and equal protection of law
● Discretionary should be exercised within reasonable limits set by law
● Adequate safeguard against executive abuse of powers
● Independent and impartial Judiciary
● Fair and Justice procedure
● Speedy Trial

Supremacy of law
Explaining the first principle, Dicey stated that rule of law means the absolute
supremacy or predominance of regular law as opposed to the influence of arbitrary power or
wide discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide
discretionary power on the part of the Government. According to him the Englishmen were
ruled by the law and law alone. A man may be punished for a breach of law, but can be punished
for nothing else. As Wade says the rule of law requires that the Government should be subject
to the law, rather than the law subject to the Government.
According to this doctrine, no man can be arrested, punished or be lawfully made to
suffer in body or goods except by due process of law and for a breach of law established in the
ordinary legal manner before the ordinary courts of the land. Dicey described this principle as
‘the central and most characteristic feature’ of Common Law.

Equality before law

Explaining the second principle of the rule of law, Dicey stated that there must be
equality before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts. According to him, in England, all persons were subject
to one and the same law, and there were no separate tribunals or special courts for officers of
the Government and other authorities.

He criticized the French legal system of droit administratif in which there were distinct
administrative tribunals for deciding cases between the officials of the State and the citizens.
According to him, exemption of the civil servants from the jurisdiction of the ordinary courts
of law and providing them with the special tribunals was the negation of equality. Of course,
Dicey himself saw that administrative authorities were exercising ‘judicial’ functions though
they were not ‘courts’. He, therefore, asserted: “Such transference of authority saps the
foundation of the rule of law which has been for generations a leading feature of the English
Constitution.”

According to Dicey, any encroachment on the jurisdiction of the courts and any
restrictions on the subject's unimpeded access to them are bound to jeopardize his rights.

Judge – made Constitution

Explaining the third principle, Dicey stated that in many countries rights such as the
right to personal liberty, freedom from arrest, freedom to hold public meetings, etc. are
guaranteed by a written Constitution; in England, it is not so. Those rights are the result of
judicial decisions in concrete cases which have actually arisen between the parties. Thus, Dicey
emphasized therole of the courts of law as guarantors of liberty and suggested that the rights
would be secured more adequately if they were enforceable in the courts of law than by mere
declaration of those rights in a document, as in the latter case, they can be ignored, curtailedor
trampled upon. He stated: “The Law of the Constitution, the rules which in foreign countries
naturally form part of a constitutional Code, are not the source but the consequences of the
rights of individuals, as defined and enforced by the courts.”

Application of Doctrine

In England, the doctrine of the rule of law was applied in concrete cases. If a man is
wrongfully arrested by the police, he can file a suit for damages against them as if the police
were private individuals. In Wilkes v. Wood, it was held that an action for damages for trespass
was maintainable even if the action complained of was taken in pursuance of the order of the
Minister. In the leading case of Entick v. Carrington, a publisher's house was ransacked by the
King’s messengers sent by the Secretary of State. In an action for trespass, £300 were awarded
to the publisher as damages. In the same manner, if a man's land is compulsorily acquired under
an illegal order, he can bring an action for trespass against any person who tries to disturb his
possession or attempts to execute the said order.
Merits

Dicey's thesis has its own advantages and merits. The doctrine of Rule of Law proved
to be an effective and powerful weapon in keeping administrative authorities within their limits.
It served as a touchstone to test all administrative actions. The broad principle of rule of law
was accepted by almost all legal systems as a constitutional safeguard. The first principle
(supremacy of law) recognizes a cardinal rule of democracy that every Government must be
subject to law and not law subject to the Government. It rightly opposed arbitrary and
unfettered discretion governmental authorities, which has tendency to interfere with rights of
citizens.

The second principle (equality before law) is equally important in a system wedded to
democratic polity. It is based on the well-known maxim -"However high you may be, Law is
above you", and "All are equal before the law."

The third principle puts emphasis on the role of judiciary in enforcing individual rights
and personal freedoms irrespective of their inclusion in a written Constitution. Dicey feared
that mere declaration of such rights in any statute or in Constitution would be futile if they
could not be enforced. He was right when he said that a statute or even Constitution can be
amended and ‘Fundamental Rights’ can be abrogated. We have witnessed such a situation
during the emergency in 1975 and realized that in absence of strong and powerful judiciary, a
written Constitution is meaningless.

Rule of Law under Constitution of India

Dicey’s rule of law has been adopted and incorporated in the Constitution of India. The
Preamble itself enunciates the ideals of Justice, Liberty and Equality. In Part III of the
Constitution these concepts are enshrined as Fundamental Rights and are made enforceable.
The Constitution is supreme and all the three organs of the Government, viz. Legislature,
Executive and Judiciary are subordinate to and have to act in consonance with the Constitution.
The doctrine of judicial review is embodied in the Constitution and the subjects can approach
the High Courts and the Supreme Court for the enforcement of Fundamental Rights guaranteed
under the Constitution. If the executive or the Government abuses the power vested in it or if
the action is mala fide, the same can be quashed by the ordinary courts of law.

All rules, regulations, ordinances, bye-laws, notifications, customs and usages are
‘laws’ within the meaning of Article 13 of the Constitution and if they are inconsistent with or
contrary to any of the provisions thereof, they can be declared ultra vires by the Supreme Court
and by High Courts. The President and the Judges of the Supreme Court and High Courts are
required to take an oath to preserve, protect and defend the Constitution. No person shall be
deprived of his life or personal liberty except according to procedure established by law or of
his property save by authority of law. Executive and legislative powers of States and the Union
have to be exercised in accordance with the provisions of the Constitution. Government and
public officials are not above law. The maxim 'The King can do no wrong' does not apply in
India. There is equality before the law and equal protection of laws. Government and public
authorities are also subject to the jurisdiction of ordinary courts of law and for similar wrongs
are to be tried and punished similarly.
They are not immune from ordinary legal process nor is any provision made regarding
separate administrative courts and tribunals. In public service also the doctrine of equality is
accepted. Suits for breach of contract and torts committed by pubic authorities can be filed in
ordinary law courts and damages can be recovered from State Government or Union
Government for the acts of their employees. Thus, it appears that the doctrine of rule of law is
embodied in the Constitution of India, and is treated as the basic structure of the Constitution.

Rule of Law and Case law

In an early case S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC 1427)
the Supreme Court portrayed the essentials of rule of law in a very lucid manner. It observed:
“ The absence of arbitrary power is the first essential of the rule of law upon which our whole
constitutional system is based. In a system governed by rule of law, discretion when conferred
upon executive authorities must be continued within clearly defined limits. The rule of law
from this points of view means that decisions should be made by the application of known
principles and rules and, in general such decision should be predictable and the citizen should
know where he is. If a decision is taken without any principle or without any rule it is
unpredictable and such a decision is antithesis of a decision taken in accordance with the rule
of law”.
The Supreme Court in a case, namely, Supreme Court Advocates on Record
Association V. Union of India, (AIR 1994 SC 268 at p.298) reiterated that absence of
arbitrariness is one of the essentials of rule of law.

DROIT ADMINISTRATIF

Meaning of Droit administratif French administrative law is known as Droit Administratif

which means a body of rules which determine the organization, powers and duties of public
administration and regulate the relation of the administration with the citizen of the country.
Droit Administrative does not represent the rules and principles enacted by Parliament. It
contains the rules developed by administrative courts. Napoleon Bonaparte was the founder of
the Droit administrative. It was he who established the Conseil d’Etat. He passed an ordinance
depriving the law courts of their jurisdiction on administrative matters and another ordinance
that such matters could be determined only by the Conseil d’Etat. Waline, the French jurist,
propounds three basic principles of Droit administrative:
1. the power of administration to act suo motu and impose directly on the subject the duty
to obey its decision;
2. the power of the administration to take decisions and to execute them suo motu may be
exercised only within the ambit of law which protects individual liberties against
administrative arbitrariness;
3. the existence of a specialized administrative jurisdiction. One good result of this is that
an independent body reviews every administrative action The Conseil d’Etat is
composed of eminent civil servants, deals with a variety of matters like claim of
damages for wrongful acts of Government servants, income-tax, pensions, disputed
elections, personal claims of civil servants against the State for wrongful dismissal or
suspension and so on. It has interfered with administrative orders on the ground of error
of law, lack of jurisdiction, irregularity of procedure and detournement depouvior
(misapplication of power). It has exercised its jurisdiction liberally.
Main characteristic features of droit administratif. The following characteristic features are
of the Droit Administratif in France:-
1. Those matters concerning the State and administrative litigation falls within the
jurisdiction of administrative courts and cannot be decided by the land of the ordinary
courts.
2. Those deciding matters concerning the State and administrative litigation, rules as
developed by the administrative courts are applied.
3. If there is any conflict of jurisdiction between ordinary courts and administrative court,
it is decided by the tribunal des conflicts.
4. Conseil d’Etat is the highest administrative court. Prof. Brown and Prof. J.P. Garner
have attributed to a combination of following factors as responsible for its success
i. The composition and functions of the Conseil d’Etat itself;
ii. The flexibility of its case-law;
iii. The simplicity of the remedies available before the administrative courts;
iv. The special procedure evolved by those courts; and
v. The character of the substantive law, which they apply.
Despite the obvious merits of the French administrative law system, Prof. Dicey was of the
opinion that there was no rule of law in France nor was the system so satisfactory as it was in
England. He believed that the review of administrative action is better administered in England
than in France.

THEORY OF SEPARATION OF POWERS

Meaning of Separation of Powers:

In many countries the legislature is under the executive and in certain countries, the
legislature has the right to remove the executive. Similarly, in certain other countries the
judiciary has the power to declare the laws, made by the legislature, illegal. It indicates
that the three organs of the government have some relation or the other with one another.
But the writers who believe in the principle of the separation of powers are of the
opinion that all the powers of the government should not be concentrated in the hands of one
organ. Otherwise there will be no freedom.
They are of the view that the legislature should only make laws, the executive should
implement that law and run the administration according to those laws, and the judiciary should
decide the disputes according to those laws.
Montesquieu laid stress on the limitation of each organ and declared that there should
be no control of one organ over the other. One organ should neither interfere in the sphere of
the other, nor should it influence the other. Each organ should be completely free in its own
sphere.

History of the Theory:

Prior to Montesquieu certain writers gave indication of the separation of powers

indirectly, but they did not explain the theory in detail as has been done by Montesquieu. First
of all Aristotle described the three organs of the government.’ But he did not explain their
mutual relations in detail.
The Roman writer Cicero and Polybius praised the Roman Constitution very much. The
reason for the success of the Roman Constitution was the system of checks and balances. In
fourteenth century political philosopher Marsigilo of Padua also differentiated between the
legislative and executive organ of the government.

In the sixteenth century, the French writer jean Bodin laid emphasis on the freedom of
judiciary and said that the executive as well as judicial power should not be in the hands of one
person so that there should be no despotic rule.

The leaders of the Glorious Revolution were of the firm belief that the power to make
laws and to implement them should not rest in the hands of one person so that despotic rule
should not be established”. In his book “Civil Government” John Locke, a staunch supporter
of the Glorious Revolution, laid emphasis on the separation of executive and legislative powers.

Views of Montesquieu:

The best explanation of this theory has been given by French writer Montesquieu in his
book’ Spirit of Laws, 1748’. Montesquieu lived at the time of Louis XIV, the author of the
famous phrase “I am the state”. The monarch combined in his person all the three powers.
Montesquieu happened to visit England in 1726 and he was tremendously impressed by the
spirit of freedom prevailing there.

He analysed the freedom of the people and arrived at the conclusion that the freedom
of the people was made possible because in England all the three organs of State were working
separately and they were free of each other’s control. He was very much impressed by the
powers of the British Parliament and the freedom of the judiciary. Therefore, he said that it was
necessary for the protection of freedom in France that all the three organs should function
separately.

The concentration of all the three powers in the hands of one person was not
desirable at all, because it would destroy the freedom of the people. He laid special
emphasis on the freedom of judiciary and on the making of the legislature or the
Parliament of his country powerful.

Montesquieu writes, “When the legislative and executive powers are united in the
same person, or in the same body of magistrates, there can be no liberty because
apprehension may arise that the same monarch or senate should enact tyrannical laws
and execute the in a tyrannical manner. Again there is no liberty if the judicial power is
not separated from the legislative and executive. Were it joined with the legislative, the
life and liberty of the subject would be exposed to arbitrary control., for the judge would
then be the legislator. Were it joined to the executive power, the judge might behave with
violence and oppression”.

To explain briefly and in simple language, Montesquieu’s thesis, therefore, is that

concentration of Legislative, Executive and Judicial functions in one single person or in
a body of person’s results in the abuse of authority and such an organisation is tyrannical.
He, accordingly, pleaded that the three departments of government should perform
distinct functions within the spheres of powers assigned to them.

In India
Though, just like American constitution, in Indian constitution also, there is express mention
that the executive power of the Union and of a State is vested by the constitution in the President
and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding
provision vesting the legislative and judicial powers in any particular organ. It has accordingly
been held that there is no rigid separation of powers.

Although prima facie it appears that our constitution has based itself upon doctrine of
separation of powers. Judiciary is independent in its field and there can be no interference with
its judicial functions either by the executive or the legislature. Constitution restricts the
discussion of the conduct of any judge in the Parliament. The High Courts and the Supreme
Court has been given the power of judicial review and they can declare any law passed by
parliament as unconstitutional. The judges of the S.C. are appointed by the President in
consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for efficient
conduction of business.

It is noteworthy that A. 50 of the constitution puts an obligation over state to take steps to
separate the judiciary from the executive. But, since it is a DPSP, therefore it’s unenforceable.

In a similar fashion certain constitutional provisions also provide for Powers, Privileges and
Immunities to the MPs , Immunity from judicial scrutiny into the proceedings of the house ,
etc. Such provisions are thereby making legislature independent, in a way. The Constitution
provides for conferment of executive power on the President. His powers and functions are
enumerated in the constitution itself. The President and the Governor enjoy immunity from
civil and criminal liabilities.

But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted
in India in its strict sense. The executive is a part of the legislature. It is responsible to the
legislature for its actions and also it derives its authority from legislature. India, since it is a
parliamentary form of government, therefore it is based upon intimate contact and close co-
ordination among the legislative and executive wings. However, the executive power vests in
the President but, in reality he is only a formal head and that, the Real head is the Prime minister
along with his Council of Ministers. The reading of Art. 74(1) makes it clear that the executive
head has to act in accordance with the aid and advice given by the cabinet.

Generally the legislature is the repository of the legislative power but, under some specified
circumstances President is also empowered to exercise legislative functions. Like while issuing
an ordinance , framing rules and regulations relating to Public service matters , formulating
law while proclamation of emergency is in force . These were some instances of the executive
head becoming the repository of legislative functioning. President performs judicial functions
also .
On the other side, in certain matters Parliament exercises judicial functions too.

It can decide the question of breach of its privilege , and in case of impeaching the President;
both the houses take active participation and decide the charges Judiciary, in India, too can be
seen exercising administrative functions when it supervises all the subordinate courts below .
It has legislative power also which is reflected in formulation of rules regulating their own
procedure for the conduct and disposal of cases So, it’s quite evident from the constitutional
provisions themselves that India, being a parliamentary democracy, does not follow an absolute
separation and is, rather based upon fusion of powers, where a close co-ordination amongst the
principal organs is unavoidable and the constitutional scheme itself mentions it. The doctrine
has, thus, not been awarded a Constitutional status. Thus, every organ of the government is
required to perform all the three types of functions. Also, each organ is, in some form or the
other, dependant on the other organ which checks and balances it. The reason for the
interdependence can be accorded to the parliamentary form of governance followed in our
country. But, this doesn’t mean that this doctrine is not followed in India at all.

Except where the constitution has vested power in a body, the principle that one organ should
not perform functions which essentially belong to others is followed. This observation was
made by the Supreme Court in the re Delhi Laws Act case, wherein, it was held by a majority
of 5:2, that, the theory of separation of powers is not part and parcel of our Constitution. But,
it was also held that except for exceptional circumstances like in A. 123, A. 357, it is evident
that constitution intends that the powers of legislation shall be exercised exclusively by the
Legislature. As Kania, C.J., observed-

Although in the constitution of India there is no express separation of powers, it is clear that a
legislature is created by the constitution and detailed provisions are made for making that
legislature pass laws. Does it not imply that unless it can be gathered from other provisions of
the constitution, other bodies-executive or judicial-are not intended to discharge legislative
functions?
In essence they imported the modern doctrine of separation of powers. While dealing with the
application of this doctrine, it is quintessential to mention the relevant cases which clarify the
situation further.

Separation of Powers and Judicial Pronouncements in India

In India, we follow a separation of functions and not of powers. And hence, we don’t abide by
the principle in its rigidity. An example of it can be seen in the exercise of functions by the
Cabinet ministers, who exercise both legislative and executive functions. A. 74(1) wins them
an upper hand over the executive by making their aid and advice mandatory for the formal
head. The executive, thus, is derived from the legislature and is dependant on it, for its
legitimacy. This was the observation made by the Hon’ble S.C. in Ram Jawaya v. Punjab.

On the question that where the amending power of the Parliament does lies and whether A. 368
confers an unlimited amending power on Parliament, the S.C. in Kesavananda Bharati held
that amending power was now subject to the basic features of the constitution. And hence, any
amendment tampering these essential features will be struck down as unconstitutional. Beg, J.
added that separation of powers is a part of the basic structure of the constitution. None of the
three separate organs of the republic can take over the functions assigned to the other. This
scheme cannot be changed even by resorting to A. 368 of the constitution . There are attempts
made to dilute the principle, to the level of usurpation of judicial power by the legislature.

In a subsequent case law, S.C. had occasion to apply the Kesavananda ruling regarding the
non-amend ability of the basic features of the constitution and a strict adherence to doctrine of
separation of powers can be seen. In Indira Gandhi Nehru v. Raj Narain, where the dispute
regarding P.M. election was pending before the Supreme Court, it was held that adjudication
of a specific dispute is a judicial function which parliament, even under constitutional
amending power, cannot exercise . So, the main ground on which the amendment was held
ultravires was that when the constituent body declared that the election of P.M. won’t be void,
it discharged a judicial function which according to the principle of separation it shouldn’t have
done. The place of this doctrine in Indian context was made a bit clearer after this judgment.

The theory has been criticised for the following reasons:

(1) Absolute Separation of Powers is not possible:

(2) The theory is not practicable; therefore even in U.S.A. it has been modified by a system
of checks and balances:
(3) The basis of the theory is confusing:
(4) The Organs of Government are mutually dependent:
(5) All the Organs of the Government are not co-ordinate:
(6) The theory will lead to inefficiency in Government:
(7) The Authoritarian Objection:
(8) The Democratic Objection:
(9) Individual liberty possible even without separation of powers:

CLASSIFICATION OF ADMINISTRATIVE ACTION

 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:
i) Rule-making action or quasi-legislative action.
ii) Rule-decision action or quasi-judicial action.
iii) Rule-application action or administrative action.
iv) Ministerial action

i) 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:
1. Disciplinary proceedings against students.
2. Disciplinary proceedings against an employee for misconduct.
3. Confiscation of goods under the sea Customs Act, 1878.
4. Cancellation, suspension, revocation or refusal to renew license or permit by licensing
authority.
5. Determination of citizenship.
6. Determination of statutory disputes.
 7. Power to continue the detention or seizure of goods beyond a particular period.
8. Refusal to grant ‘no objection certificate’ under the Bombay Cinemas (Regulations)
Act, 1953.
9. Forfeiture of pensions and gratuity.
10. Authority granting or refusing permission for retrenchment.
11. Grant of permit by Regional Transport Authority.
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.
2) 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.
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.

(iv) 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.

CONTROL OVER THE ADMINISTRATIVE ACTIONS

There are 3 controls over administrative actions

1. Parliamentary control
2. Judicial control
3. Other control
Parliamentary control; the administrative authorities are conferred wide administrative
powers which are required to be controlled otherwise they will become new despots. The
administrative law aims to find out the ways and means to control the powers of the
administrative authorities.
Parliament has been given several powers for controlling the executive. Several provisions
have been incorporated in the constitution so as to enable the legislature to control the
executive.
1. President may be impeached by parliament under article 124 of Indian Constitution.
2. The vice President may be removed from his office by Parliament
3. Parliament may by law determine the qualifications for appointment as members of the
finance commission.
4. The ordinance promulgated by the president unere article 123 is required to be laid
before both the houses of the parliament
5. Proclamation of emergency under article 352 and proclamation of state emergency
under article 356 is required to be laid before both houses of parliament.
6. The minister is responsible to parliament for the acts of the officers of its department
7. Parliament can ask questions regarding the action of the department of ministers.
Judicial control; judiciary has been given wide powers for controlling the administrative
actions. The judicial control may be discussed under the following headings.
1. Control under Constitutional Provisions
2. Control under Statutory Provisions
3. Control under Law of Equity

Control under constitutional provisions

1. Judicial review
a. Public law review ( 5 kins of writs only)
b. Private law review- 1). Injunctions, 2). declarations 3). suit for damages
4).Affirmative action for enforcement of public duties
2. Special leave to supreme court under article 136 of indian constitution
3. Supervisory jurisdiction of the high court under article 227
4. Remedies through writs
 a. Habeas corpus
b. Mandamus
c. Certiorari
d. Prohibition
e. Quo-warranto

Control under statutory provisions

1. Statutory appeals
2. Reference to the High Court or statement of case
Control under law of equity
1. Injunctions
2. Declarations
3. damages

DELEGATED LEGISLATION
One of the most significant developments of the present century is the growth in the
legislative powers of the executives. The development of the legislative powers of the
administrative authorities in the form of the delegated legislation occupies very important place
in the study of the administrative law. We know that there is no such general power granted to
the executive to make law it only supplements the law under the authority of legislature. This
type of activity namely, the power to supplement legislation been described as delegated
legislation or subordinate legislation.

Legislative power of the Administration means the power given to the administrative
authority by the Legislature to make rules, regulations, like provisions on certain matters. It
may be defined as the law-making power of the Executive or administrative authority. It is
briefly known as "delegated legislation". It has also been described as "outsourcing of law-
making power".

The word ‘delegate’ is distinguished from the term 'delegation'. While delegate' is
stated to mean a person who is appointed, authorized, delegated or commissioned to act in the
stead of another, the term "delegation" means instructing another with a general power to act
for the good of those who depute him or it means transfer of authority by one person to another.
In this sense, delegated legislation means he conferring authority of law-making upon someone
else, i.e., on administrative authorities.

Delegated legislation may be distinguished from Executive Legislation. The former

refers to the legislation made by the authorities other than the Legislature to whom the
Legislature delegates its legislative power, while the latter stands for the legislative power
conferred on the Executive by the Constitution itself.

It thus follows that the legislation made by the Executive in the exercise of power
confers on it expressly by the Constitution, is not delegated legislation, but strictly speaking, it
is original legislation.

For instance, Ordinances promulgated by the President under Article 123 or by the
Governor under Article 213 are expressly declared to have the same force and effect as a law
enacted by the respective Legislature

What are the reasons for growth of delegated legislation?

Many factors are responsible for the rapid growth of delegated legislation in every
modern democratic state. The traditional theory ‘laissez-faire’ has been given up by every state
and the old ‘police state’ has now become a ‘welfare state’. Because this radical change I the
philosophy as to the role to be played by the state, its functions have increased. Consequently,
delegated legislation has become essential and inventible. As American lawyer and statesman
Root remarks- “The old doctrine of prohibiting the delegation of legislative powers has
virtually retired from the field and given up the fight”.

According to the committee on ministers’ power the following factors are responsible for the
rapid growth of delegated legislation.

(a) Pressure upon parliamentary time: The horizons of state activities are expanding. The
bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to
discuss all the matters in detail. Therefore, legislature formulates the general policy – the
skeleton and empowers the executive to fill in the details – thus giving flesh and blood to the
skeleton so that it may live- by issuing necessary rules, regulation, bye-laws etc.

In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to relieve
the parent of the strain of overwork and capable of attending to minor matters, while the parent
manages the main business. The Committee on Ministers’ powers has rightly observed: “The
truth is, that if parliament were not willing to delegate law making power, parliament would be
unable to pass the kind and quality and legislation which modern public opinion requires.”

(b) Technicality: Sometimes, subject matter of legislation is technical in nature. So, assistance
of experts is required. Members of parliament may be the best politicians but they are not expert
to deal with highly technical matters. These matters are required to be handled by experts. Here,
the legislative power may be conferred on experts to deal with the technical problems. i.e. gas,
atomic energy, drugs, electricity etc.

(c) Flexibility: Parliament cannot foresee all the contingencies while passing on enactment. To
satisfy these demands of unforeseen situation some provisions are required to be made. A
legislative amendment is a slow and cumbersome process. But by the device of delegated
legislation the executive can meet the situation expeditiously, e.g. bank rate, police regulations,
export and import, foreign exchange etc. Therefore, in a number of statutes a ‘removal of
difficulty’ clause has been added empowering the administration to overcome such difficulties
by exercising delegated power. This Henry VIII clause confers very wide powers on the
Government.

(d) Experiment: The practice of delegated legislation enables the executive to experiment.
This method permits rapid utilization of experience and implementation of necessary changes
in application of the provisions in the light of such experience. As for example, in road traffic
matters, an experiment may be conducted and in the light of its application necessary changes
could be made. The advantage of such a course is that it enables the delegate authority to
consult interests likely to be affected by a particular law, make actual experiments when
necessary and utilize the result of his investigation and experiments in the best possible way.
If the rules and regulations are found to be satisfactory, they can be implemented successfully.
On the other hand, if they are found to be defective, the defects can be cured immediately.

(e) Emergency: In times of emergency, quick action is required to be taken. The legislative
process is not equipped to provide for urgent solution to meet the situation. Delegated
legislation is the only convenient- indeed the only possible remedy. Therefore, in times of war
and other national emergencies, the executive is vested with extremely wide powers to deal
with the situation. There was substantial growth of delegated legislation during the two world
wars similarly in cases of epidemics, floods, inflation, economic depression etc. immediate
remedial actions are necessary which may not be possible by lengthy legislative process and
delegated legislation is the only convenient remedy.

(f) Complexity of modern administration: The complexity of modern administration and the
expansion of the functions of the state to the economic and social sphere have rendered it is
necessary to resort to new forms of legislation and to give wide powers to various authorities
on suitable occasions. In a country like Bangladesh, where control and regulation over private
trade, business or property may be required to be imposed, it is necessary that the
administration should be given ample power to implement such policy so that immediate action
can be taken.

Therefore, there has been rapid growth of delegated legislation in all countries and it becomes
indispensable in modern administrative era.

ADVANTAGES OF DELEGATED LEGISLATION

Advantages

1. Delegated Legislation Saves Time of the Parliament:

The types of activities that are now falling under the government sphere are so complex and
voluminous that the Legislature has neither the time nor the capacity to make laws for their
regulation. Therefore, it delegates some of its powers to the executive, in order to avoid being
bogged down in the burden of details.

2. Delegated Legislation Makes for Flexibility:

Statutes create rigidity in administration, but administrative legislation is more adaptable to

changing circumstances. It is specially useful in those branches of administration which are
liable to occasional changes and where repid technical developments are taking place almost
daily.

3. Emergencies Met:

It is better to clothe the administrative agencies with the necessary discretion to deal with the
possible contingencies which may arise in the application of law since the legislature is unable
to foresee and provide for all them.

4. Delegated Legislation can be easily done in Consultation with the Interests Affected:

Prior consultation with the interests likely to be affected is necessary to make legislation
affective. The drafting of the rules may and often does permit conference between the
government and the vested interests affected and consequently results in a broad agreement
which tends towards voluntary compliance.

5. Average Legislator:

An average legislator is a layman. He is not acquainted with the complexities of modern

legislation. Hence he passes the bills in skeleton form and leaves the details to be filled up by
the executive.

6. Impact of Science and Technology:

Due to impact of science and technology the functions of the modem state have got multiplied.
Thus the powers of the legislature have also considerably enhanced. It can hardly cope with
powers which are even on the increase. Hence it has delegated power of law making to the
executive.

7. New Standards to be set up:

Growth of delegated legislation can also be attributed to the need of setting up of new standards
in the social interest. To ensure national minimum of health education, housing and sanitation
to everybody, the expert knowledge is required.

8. Administrative Legislation Provides for Expert Legislation:

The rules are drafted by experts in the appropriate departments who are familiar with the actual
conditions. The details can be much better worked by them than by the lay members of the
legislature.

Disadvantages of Delegated legislation

1) Undemocratic making law

- Since the delegated authorities are not elected by the people, therefore they are not
accountable to the regulation made by them.

- Hence, it abrogating the democratic responsibility of a government

2) Complexity of the law

- Some of the regulations are made were too complex and did not meet the need of the
community as well as causing alot of unneccesarry problems to the businessmen.

3) Accessibility and a lack of community awareness

- Since the regulations made always according the changes of circumstances, therefore it is
hardly for everyone to adapt to the changes of regulations

- And, people unwittingly, therefore, often break the law.

PERMISSIBLE DELEGATION

The following functions may be delegated by the Legislature to the Executive:

Commencement : Several statutes contain an ‘appointed day’ clause, which empowers the
Government to appoint a day for the Act to come into force. In such cases, the operation of the
Act depends on the decision of the Government e.g. Section 1(3) of the Consumer Protection
Act, 1986 provides that the Act ‘shall come into force on such date as the Central Government
may by notification appoint.’ The Legal Services Authorities Act, 1987 was brought into force
only in 1997. Here the Act comes into force when the notification ispublished in the Official
Gazette. Such a provision is valid for, as Sir Cecil Carr remarks. “the legislature provides the
gun and prescribes the target, but leaves to the executive the task of pressing the trigger".

Supplying Details : If the legislative policy is formulated by the legislature, the function of
supplying details may be delegated to the executive for giving effect to the policy. This is the
most usual form of delegation and is found in several statutes. In all such cases, a legislation
enacted by the Legislature is ‘skeleton legislation’ and the legislature lays down general
principles in the statute. What is delegated here is an ancillary function in aid of the exercise
of the legislative function e.g. Section 3 of the All India Services Act, 1951 authorizes the
Central Government to make rules to regulate conditions of service in the All India Services.

Inclusion : Sometimes, the legislature passes an Act and makes it applicable, in the first
instance, to some areas and classes of persons, but empowers the Government to extend the
provisions thereof to different territories, persons or commodities, etc., e.g., the Transfer of
Property Act, 1882 was made applicable to the whole of India except certain areas, but the
Government was authorized to apply the provisions of the Act to those areas also. Likewise,
the Essential Commodities Act, 1955 was made applicable to certain specified commodities
but empowered the Central Government to declare any other commodity as an ‘essential
commodity’ and to make the Act applicable to such commodity. In the same manner, the
Dourin Act, 1910 was made applicable to horses in the first instance but by Section 2(2), the
Government was authorized to extend the provisions of the Act to asses as well. By Section
146 of the Indian Railways Act, 1890, the Government was authorized to apply the provisions
to tramways. This device provides flexibility to law without interfering with legislative policy.

Exclusion : There are some statutes which empower the Government to exempt from their
operation certain persons, territories, commodities, etc. Section 36 of the Payment of Bonus
Act, 1965 empowers the Government to exempt any establishment or a class of establishments
from the operation of the Act. Such provision introduces flexibility in the scheme of the
legislation. The Legislature which is burdened with heavy legislative work is unable to find
time to consider in detail hardships and difficulties likely to result in enforcing the legislation.
Such power can be exercised by executive in public interest.

Suspension : Some statutes authorize the Government to suspend or relax the provisions
contained therein, e.g. under Section 48(1) of the Tea Act, 1953, the Central Government is
empowered under certain circumstances to suspend the operation of all or any of the provisions
of the said Act.

Application of existing laws : Some statutes confer the power on the executive to adopt and
apply statutes existing in other States without modifications (with incidental changes) to a new
area. There is no unconstitutional delegation in such cases, as the legislative policy is laid down
in the statute by the competent legislature.

Modification : Sometimes, provision is made in the statute authorizing the executive to modify
the existing statute before application. This is really a drastic power as it amounts to an
amendment of the Act, which is a legislative function, but sometimes, this flexibility is
necessary to deal with local conditions. Thus, under the powers conferred by the Delhi Laws
Act, 1912, the Central Government extended the application of the Bombay Agricultural
Debtors’ Relief Act, 1947 to Delhi. The Bombay Act was limited in application to the
agriculturists whose annual income was less than Rs 500 but that limitation was removed by
the Government.
While conferring a power on Executive to modify a statute, two factors ought to be considered:
1. the need and necessity of delegating such power, and
2. the danger or risk of misuse of such power by the executive,
It is, therefore, necessary for the legislature to formulate policy in clear and unambiguous
terms before such power is delegated to the administration.

Prescribing Punishments :In some cases the legislature delegates to the executive the power
to take punitive action, e.g. under Section 37 of the Electricity Act, 1910, the Electricity Board
is empowered to prescribe punishment for breach of the provisions of the Act subject to the
maximum punishment laid down in the Act. By Section 59(7) of the Damodar Valley Act,
1948, the power to prescribe punishment is delegated to a statutory authority without any
maximum limit fixed by the parent Act.

Framing of Rules : A delegation of power to frame rules, bye-laws, regulations, etc. is not
unconstitutional, provided that the rules, bye-laws and regulations are required to be laid before
the legislature before they come into force and provided further that the legislature has power
to amend, modify or repeal them.

Henry VIII clause (Removal of difficulties)

Power is sometimes conferred on the Government to modify the provisions of the existing
statutes for the purpose of removing difficulties. When the legislative passes an Act, it cannot
foresee all the difficulties which may arise in implementing it. The executive is, therefore,
empowered to make necessary changes to remove such difficulties. Such provision is also
necessary when the legislature extends a law to a new area or to an area where the socio-
economic conditions are different.

Generally, two types of ‘removal of difficulties’ clauses are found in statutes. A narrow one,
which empowers the executive to exercise the power of removal of difficulties consistent with
the provisions of the parent Act; e.g. Section 34(1) of the Administrative Tribunals Act, 1985
reads thus: “If any difficulty arises in giving effect to the provisions of this Act, the Central
Government may, by an order published in the Official Gazette, make such provisions not
inconsistent with the provisions of this Act as appear to it to be necessary or expedient for
removing the difficulty.

IMPERMISSIBLE DELEGATION/ ESSENTIAL LEGISLATIVE FUNCTIONS

The following functions, on the other hand, cannot be delegated by the Legislature to
the Executive. 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. In other
words, 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.

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.
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.

Exemption :The aforesaid principle applies in case of exemption also, and the legislature
cannot delegate the power of exemption to the executive without laying down the norms and
policy for the guidance of the latter.

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.

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.

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.

Imposition of Taxes :The power to impose a tax is essentially a legislative function. Under
Article 265 of the Constitution no tax can be levied or collected save by authority of law, and
here ‘law’ means law enacted by the competent legislature and not made by the executive.
Therefore, the legislature cannot delegate the essential legislative function of imposition of tax
to executive authority.

Ouster of jurisdiction of courts :The legislature cannot empower the executive by which the
jurisdiction of courts may be ousted. This is a pure legislative function.

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 in defining an offence and provides the limits of penalties, such
delegation is permissible.

Controls over the delegated legislation may be divided into three categories:
1. Judicial control;
2. Legislative control, and
3. Other controls.

Judicial Control

Delegated legislation does not fall beyond the scope of judicial review and in almost all
democratic countries it is accepted that courts can decide the validity or otherwise of delegated
legislation mainly applying two tests:
1. Substantive ultra vires; and
2. 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.

‘Ultra vires’ relates to capacity, authority or power of a person to do an act. It is not necessary
that an act to be ultra vires must be illegal. The act may or may not be illegal. The essence of
the doctrine of ultra vires is that an act has been done in excess of power possessed by a person.

SUBSTANTIVE ULTRA VIRES

Definition

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 subordinate legislation goes beyond what the delegate is authorized to enact (and
exceeds its power conferred on it by the Legislature), it acts ultra vires. This is known as
substantive ultra vires.

Principle explained
Substantive ultra vires means that the delegated legislation goes beyond the scope of the
authority conferred on it by the 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, and it has
been rightly described as the ‘central principle’ and ‘foundation of large part of administrative
law.’ An act which, for a reason, is in excess of power is ultra vires.

Circumstances
A delegated legislation may be held invalid on the ground of substantive ultra vires in the
following circumstances:
1. Where parent Act is unconstitutional;
2. Where parent Act delegates 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;

Where Parent Act is Unconstitutional

For delegation to be valid, the first requirement is that the parent Act or enabling statute by
which legislative power is conferred on the executive authority must be valid and
constitutional. If the delegating statute itself is ultra vires the Constitution and is bad, delegated
legislation is necessarily bad.

Under the Defence of India Act, 1939, the Central Government was empowered to make rules
for requisition of immovable property. But the subject of requisition of immovable property
was not within the field of the Federal Legislature. On that ground, the rule was held invalid.
In Chintamanrao v. State of M.P, the parent Act authorized the Deputy Commissioner to
prohibit manufacturing of bidis in some areas during certain periods. The order passed by the
Deputy Commissioner under the Act was held ultra vires inasmuch as the Act under which it
was made violated the Fundamental Right to carry on any occupation, trade or business,
guaranteed by Article 19(1)(g) of the Constitution. A rule framed under the Bombay Provincial
Municipal Corporation Act, 1949, imposing tax on machinery was held invalid on the ground
that the State legislature had power to levy a tax only on lands and buildings and not on
machinery.

Where parent Act delegates essential legislative functions

It is a well settled principle of Administrative Law that primary and essential legislative
functions must be performed by the Legislature itself and they cannot be delegated to any other
organ of the State. To put it differently, under the scheme of our Constitution, a Legislature
cannot create, constitute or establish a parallel Legislature.

Where delegated legislation is inconsistent with parent Act

The validity of delegated legislation can be challenged on the ground that it is ultra vires the
parent Act or enabling statute. It is an accepted principle that delegated authority must be
exercised strictly within the authority of law. Delegated legislation can be held valid only if it
conforms exactly to the power granted.

In Indian Council of Legal Aid & Advice & Bar Council of India, a rule was framed by the Bar
Council barring enrolment as advocates of persons who had completed 45 years of age. The
parent Act enabled the Bar Council to lay down conditions subject to which an advocate ‘shall
have right to practice.’ Declaring the rule ultra vires, the Supreme Court held that the Bar
Council can make the rule only after a person is enrolled as an advocate, i.e. at post enrolment
stage. It cannot frame a rule barring persons from enrollment. The rule was thus inconsistent
with the parent Act.

Where delegated legislation is inconsistent with general law

A subordinate legislation, apart from being intra vires the Constitution and consistent with the
parent Act, must also be in consonance with general law, i.e. any other law enacted by the
Legislature. This is based on the principle that a subordinate or delegated legislation made by
the executive cannot be contrary to the law of the land.

In Hindustan Times v. State of U.P., Parliament, by an Act provided pension to working

journalists. The State Government, by executive instructions imposed levy on government
advertisements on newspapers and deducted such levy from pension fund of working
journalists. The directive of the State Government was held beyond legislative competence and
ultra vires the Constitution.

Where delegated legislation is unconstitutional

Sometimes a parent Act or delegating statute may be constitutional and valid and delegated
legislation may be consistent 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 is consistent with the parent Act, how can the
delegated legislation be ultra vires the Constitution? It was precisely this argument which the
Supreme Court was called upon to consider in Narendra Kumar v. Union of India. The Supreme
Court held that even though a parent Act might not be unconstitutional, an order made
thereunder (delegated legislation) can still be unconstitutional and can be challenged as
violative of the provisions of the Constitution.

Unreasonableness

In Indian Express Newspapers v. Union of India, the Apex Court ruled that subordinate
legislation does not enjoy the same degree of immunity as substantive legislation enjoys.
‘Unreasonableness’ is one of the grounds of judicial review available to test validity of
delegated legislation. If a delegate intends to impose a condition, which is unreasonable, it
cannot be held legal or valid.

Mala Fide

Indian Administrative Law is based on the principle that every statutory power must be
exercised in good faith. Power to make delegated legislation cannot claim immunity from
judicial review if the power has been exercised by the rule-making authority mala fide or with
dishonest intention. It may, however, be stated that the decisions of the Supreme Court, are not
consistent on the point and there is cleavage of opinion.

Exclusion of judicial review

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

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

Retrospective operation
It is well-settled that delegated legislation cannot have any retrospective effect unless such a
power is conferred on the rule-making authority by the parent Act. The legislature can always
legislate prospectively as well as retrospectively subject to the provisions of the Constitution.
But the said rule will not apply to administrative authorities exercising delegated legislative
power. Some statutes specifically confer power to the rule-making authority to frame rules with
retrospective effect.

PROCEDURAL ULTRA VIRES

Definition
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.
Principle explained
While framing rules, bye-laws, regulations, etc., the parent Act or enabling statute may require
the delegate to observe a prescribed procedure, such as, holding of consultations with particular
bodies or interests, publication of draft rules or bye-laws, laying them before Parliament, etc.
It is incumbent on the delegate to comply with these procedural requirements and to exercise
the power in the manner indicated by the Legislature. Failure to comply with the requirement
may invalidate the rules so framed.

At the same time, however, it is also to be noted that failure to observe the procedural
requirements does not necessarily and always invalidate the rules. This arises out of a
distinction between mandatory requirements and directory requirements. In this work, though
we are not concerned with the distinction between the two, we may say that generally, non-
compliance with a directory provision does not invalidate subordinate legislation, but failure
to observe a mandatory and imperative requirement does. “It is a well-settled rule that an
absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory
enactment be obeyed or fulfilled substantially.”

Requirements

The following two procedural requirements may now be discussed:

1. Publication
2. Consultation

Publication

Object
It is a fundamental principle of law that ‘ignorance of law is no excuse’ (ignorantia juris non
excusat). But there is also another equally established principle of law that the public must have
access to the law and they should be given an opportunity to know the law. The very
justification for that basic maxim is that the whole of our law, written or unwritten, is accessible
to the public – in the sense, of course, at any rate, its legal advisers have access to it, at any
moment, as of right.

In case of an Act made by Parliament this poses little difficulty as it receives sufficient publicity
during the introduction of a Bill, printing, reference to a Select Committee and its report
thereon, reading before the House or Houses, discussion, voting, final approval of the Bill,
radio and newspaper reports thereon, etc. But this is not true in the case of delegated legislation.

Directory or mandatory

In Harla v. State of Rajasthan, the legislation in question passed by Council was neither
published nor was it made known to the general public through any other means. The Supreme
Court, by applying principles of natural justice, held that its publication was necessary.
Again, in Narendra Kumar v. Union of India, Section 3 of the Essential Commodities Act, 1955
required all the rules to be made under the Act to be notified in the Official Gazette. The
principles applied by the licensing authority for issuing permits for the acquisition of non-
ferrous metal were not notified. The Supreme Court held the rules ineffective.

Mode of publication
A question may also arise about the mode, manner and method of publication. As a rule, a
distinction must be drawn between publication of delegated legislation and the mode, manner
or method of publication. Even if a requirement of publication is held to be mandatory, the
mode or manner of publication may be held to be directory and strict compliance thereof may
not be insisted upon.

Effect of publication
Once the delegated legislation is promulgated or published, it takes effect from the date of such
promulgation or publication.

Defect in publication
As already noticed, there is difference between publication of delegated legislation and the
mode of such publication. If delegated legislation is not published at all, the defect goes to the
root and makes the instrument non est, ineffective and of no consequence. But, if it is not
published in a particular manner, it would not necessarily make the instrument void. Effect to
publish in the manner provided by law would be considered by the court.

Consultation

One of the techniques adopted by courts to control exercise of power by executive against
abuse of power is the process of consultation with affected interests before delegated legislation
or statutory instrument is prepared. It is indeed a visible safeguard against possible misuse of
power by the rule-making authority.

Meaning
The term ‘consult’ implies a conference of two or more persons or an impact of two or more
minds in respect of a topic in order to enable them to evolve a correct or, at least satisfactory
solution of a problem. It is a process which requires meeting of minds between the parties to
consultation on material facts to come to a right conclusion.

Object
An important measure to check and control the exercise of legislative powers by the executive
is the technique of consultation through which affected interests may participate in the rule-
making process. This modus operandi is regarded as a valuable safeguard against misuse of
legislative power by the executive authorities. As Wade and Philips remark, “One way of
avoiding a clash between department exercising legislative powers and the interest most likely
to be affected is to provide for some form of consultation.”
This process of exchange of ideas is beneficial to both: to the affected interests itself
insofar as they have an opportunity to impress on the authority their point of view; and to the
rule-making authority insofar as it can gather necessary information regarding the issues
involved and thus be in a better position to appreciate a particular situation. The Administration
is not always the repository of ultimate wisdom; it learns from the suggestions made by
outsiders and often benefits from that advice. A consultative technique is useful in balancing
individual interests and administrative exigencies. The purpose is to allow interested parties to
make useful comment and not to allow them to assert their right to insist that the rule to take a
particular form. It acts as an important brake on administrative absolutism.

Nature and Scope

 Consultation does not mean consent or concurrence. It, however, postulates full and
effective deliberation, exchange of mutual viewpoints, meeting or minds and examination of
relative merits of the other point of view. Consultation is not complete unless the parties thereto
make their respective viewpoints known to others and examine relative merits of their views.
Even when consultation is not a legal requirement, such a step generates greater confidence of
the persons who may be affected by an action that may be taken by the authority.

Mandatory or directory
No hard and fast rule of universal application can be laid down as to when a provision
relating to consultation should be held as mandatory and when it should be regarded as
directory.

As held by the Supreme Court, in absence of the legislation making it plain what the
consequences of failure to observe the statutory requirement are, the court should decide the
question keeping in view the scope and purpose of the enactment, object sought to be secured
by such consultation, intention of making such provision, effect of the exercise of power upon
the rights of persons to be consulted, etc.

LEGISLATIVE CONTROL

General
It is of course open to Parliament to confer legislative power upon anyone it likes,
including the captain of the Indian cricket team, or to the author of administrative law. But if
Parliament delegates legislative powers to any other authority, e.g. to the executive, it must
also ensure that those powers are properly exercised by the administration and there is no
misuse of authority by the executive.

Justice Krishna Iyer rightly stated that Parliamentary control over delegated legislation
should be a living continuity as a constitutional necessity.

Object

The underlying object of parliamentary control is to keep watch over the rule-making
authorities and also to provide an opportunity to criticize them if there is abuse of power on
their part. This mechanism is described as ‘legislative veto.’ Since the risk of abuse of power
by the executive is inherent in the process of delegated legislation, it is necessary for the
legislature to keep ‘close watch’ on the delegate. This is much more important in view of the
fact that judicial control over delegated legislation is not sufficient enough to keep
administrative agencies within the bounds of delegation and there is need and necessity
‘political’ control in terms of policy, which Parliament may be able to exercise efficiently.

Modes

Legislative control can be effectively exercised by:

11. Laying on Table; and
12. Scrutiny Committees.

Laying on Table

Object
In almost all the Commonwealth countries, the procedure of 'Laying on the Table’ of the
legislature is followed. It serves two purposes;
• First, it informs the legislature as to what rules have been made by the executive
authorities in exercise of delegated legislative power; and
• second, it provides an opportunity to the legislators to question or challenge the rules
already made or proposed to be made. Through this ‘safety-valve’ the legislature
exercises supervision, check and control over executive rule-making power. ‘Laying
technique’ brings legislature into close and constant contact with the administration.

Types
There are several types of ‘laying’. The extent of legislative control necessarily differs in
these cases. The Select Committee on Delegated Legislation summarized the procedure under
seven heads.
1. Laying without further provision for control - Here the parent Act merely provides
that the rules shall be laid before Parliament. They become operative from the date they
are laid before the Houses and in exceptional cases, even before they are so laid. This
procedure is only to inform Parliament as to what rules were made by the executive
authorities.
2. Laying with deferred operation - The requirement of laying is linked with
postponement of operation of the rules and thus Parliament gets more control.
3. Laying with immediate effect but subject to annulment - Here the rules come into
force when laid before Parliament, but cease to be in operation if disapproved by it
within a specified period. As May comments, “this is the most common form of
Parliamentary control” and is known as the ‘negative resolution’ procedure.
4. Laying in draft but subject to resolution that no further proceedings be taken -
This is also a ‘negative resolution’ procedure. Here draft of statutory rules are required
to be laid before Parliament but the parent Act provides that the rules should not be
made effective until a particular period has expired.
5. Laying in draft and requiring affirmative resolution - This belongs to the realm of
‘positive resolution’ and provides a stringent parliamentary supervision over delegated
legislation unlike the ‘negative resolution’ procedure. The draft rules do not become
effective until an affirmative resolution approving the same has been passed by
Parliament. An opportunity is provided to the members to discuss and react to the rules
before they can finally be given effect to by the executive.
6. Laying with operation deferred until approval given by affirmative resolution -
Here the rules are actually made but they do not come into operation until approved by
Parliament.
7. Laying with immediate effect but requiring affirmative resolution as a condition
for continuance - This form of laying is used where prompt operation of delegated
legislation is essential but strict parliamentary supervision is also necessary. The
confirmatory resolution keeps the delegated legislation alive, which would otherwise
die. It is often applied in cases of taxation or to rules made during Emergency.

In India, there is no statutory provision requiring ‘laying’ of all delegated legislation.

According to the Committee on Delegated Legislation, the statutes contain four methods of
laying:
• Requirement of mere publication of rules in the Official Gazette;
• Requirement of such publication and laying on the Table;
 • Over and above the aforesaid two conditions, some statutes allowed modification by
Parliament; and
• Requirement of laying of rules for a specified period before they are published in the
Official Gazette.

Mandatory or Directory
A provision as to ‘laying’ may be directory or mandatory. It will depend on the scheme of the
Act, the language used, consequences enumerated in the relevant law and other considerations.
In Atlas Cycle Industries Ltd. v. State of Haryana, the Supreme Court considered this aspect in
detail and observed that the use of the word ‘shall’ is not conclusive or decisive of the matter
and the court has to ascertain the intent of the Legislature which is the determinating factor.

Two considerations, according to the court, are relevant;

• absence of a provision for contingency of a particular provision not being complied
with; and
• serious general inconvenience and prejudice likely to result to general public if the act
is declared invalid for non-compliance with the provision.

Suggestions
As there was no uniform practice in the laying procedure, the Scrutiny Committee made the
following suggestions:
(i) All Acts of Parliament should uniformly require that the rules shall be laid on the
Table of the House ‘as soon as possible’;
(ii) This period should be uniform and should be a total period of thirty days from the
date of their final publication; and
(iii) The rules will be subject to such modification as the Houses may like to make.

Laying: Effect

Where the parent Act requires mere laying of rules before Parliament, they come into
force as soon as they are made and no further action is necessary. If the parent Act provides for
annulment of rules by Parliament, the rules come into force immediately but cease to be
operative if disapproved by Parliament. But if the Act provides draft rules to be placed before
Parliament requiring affirmative action by the latter, ‘positive’ action is a condition precedent
and rules come into force only after they are approved by the House.

Laying and Judicial Review

The ‘laying’ procedure is relevant to the applicability and enforceability of rules. It,
however, neither confers validity on such rules nor it grants on rules status equal to the Act
and a court of law is not precluded from deciding vires of the rules.

Failure to lay: Effect

In Express Newspaper (P) Ltd v. Union of India, the Supreme Court observed by way
of obiter dicta that the provisions regarding laying was mandatory. But in Kerala Education
Bill,Re, the Supreme Court most emphatically and lucidly observed: “After the rules are laid
before the Legislative Assembly, they may be altered or amended and it is then that the rules
as amended become effective.”
 SCRUTINY COMMITTEES

Object
As discussed above, laying on the table has not always been held to be mandatory. Even
if that requirement is complied with, mere laying of rules before Parliament would not be of
much use, unless the rules were properly studied and scrutinized. And, therefore, with a view
to strengthening Parliamentary control over delegated legislation, Scrutiny Committees are
established. In India, there are two Scrutiny Committees:
1) the Lok Sabha Committee on Subordinate Legislation
2) the Rajya Sabha Committee on Subordinate Legislation.

Functions
The function of these Committees is ‘to scrutinize and report to the respective Houses
whether the powers to make regulations, rules, sub-rules, bye-laws, etc., conferred by the
Constitution or delegated by Parliament or are being properly exercised within such
delegation.’ “They act as watch-dogs which bark and arouse their master from slumber when
they find that an invasion on the premises has taken place.”

Suggestions
The Indian Committee on Subordinate Legislation has made inter alia the following
recommendations and suggestions:
● Power of judicial review should not be taken away or curtailed by rules.
● A financial levy or tax should not be imposed by rules.
● Language of rules should be simple and clear and not complicated or ambiguous.
● Rules should not be given retrospective operation, unless such a power has been
expressly conferred by the parent Act, as they may prejudicially affect the vested rights
of a person.
● Legislative policy must be formulated by the legislature and laid down in the statute
and the power to supply details may be left to the executive, and can be worked out
through the rules made by the administration.
● Sub-delegation in very wide language is improper and some safeguards must be
provided before a delegate is allowed to sub-delegate his authority to another
functionary.
● Discriminatory rules should not be framed by administration.
● Rules should not travel beyond the rule-making power conferred by the parent Act.
● There should not be inordinate delay in making of rules by the administration.
● The defects in rules pointed out to the administration should be cured as soon as
possible.
● The rules framed by the administration and required to be laid before the House by the
parent Act should be laid before Parliament as soon as possible, and whenever there is
inordinate delay, an explanatory note giving the reasons for such delay should be
'appended to the rules so laid.
● The final authority of interpretation of rules should not be with the administration.
● Rules should contain short titles, explanatory notes, reference to earlier amendments
for convenience of location, ready reference and proper understanding.
● Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has proved to be fairly
effective body in properly examining and effectively improving upon delegated legislation in
India. Sir Cecil Carr aptly remarks: “It is evidently a vigorous and independent body.”
 ADMINISTRATIVE DISCRETION

India is not a police state but it is welfare state. Welfare state or government cannot
function without the exercise of some discretion by the officials. The administrative authorities
have been confirmed two kinds of powers those are
1. Ministerial powers,
2. Discretion powers.
Ministerial powers to be exercised as per the strict ruled and regulations prescribed or
provided under the statute.
On the other hand discretionary powers for the exercise of which no guidelines have
been provided. Discretionary powers means choosing from amongst the various available
alternatives but with reference to the rules of reason and justice and not according to private
opinion. The supreme court in a case U.P. state road transport corporation v/s mohd. Ismail.
Exercise of discretion does not mean according to the private openion but it should according
to the rules of reason and justice.
In general courts should not interfere in the discretionary powers of administrators.
Administrative authority may use this discretionary powers for the welfare of the public/state
or it may use for self needs it leads to a misuse of powers. In order to prevent or curtail the
misuse of discretionary powers of administrators at two stages.
1. At the stage of delegation of discretionary powers
 2. At the stage of exercise of discretionary powers.
Control at the stage of delegation of discretion; generally statute/ law enacted by legislature
confirms the discretionary powers to administrative authorities. If the statute / law confirms
vague and wide discretionary powers on administrative authority it may be declared ultra virus
under article 14 and 19 of Indian constitution.
If any law conifers or authorizes administrative authorities to make rules in accordance with
their discretion affecting the rights of citizens. Court can also control by declaring those rules
as null and void.

Control at the stage of exercise of discretion; court can control the discretionary powers of
administrators at the stage of exercise of discretion in 3 circumstances.
1. Failure to exercise discretion
2. Excess or abuse of discretion
3. Violation of fundamental rights
Failure to exercise of discretion arises
1. Sub- delegation
2. Acting under dictation
3. Non application of mind
4. Imposing fetters on discretion by self imposed rules of policy
Excess or abuse of discretion
1. Leaving out relevant consideration
2. Irrelevant consideration
3. Violation of natural principles of justice
4. Exceeding the jurisdiction
5. Mixed consideration
6. Improper purpose
7. Unreasonable
8. Malafide
9. Colourable exercise

NATURAL PRINCIPLES OF JUSTICE

Natural principles of justice

● Rule against bias
● Rule for fair hearing
● Speaking order

1. Rule against bias. It is first principle of natural justice. It is based on 3 maxims 1. No man
shall be a judge in his own cause. 2. Justice should not only be done but manifestly and
undoubtedly be seen to be done. 3. Judge like caesars wife should be above suspicious.
Rule against bias means the decision should be made free from bias or impartiality. It is the
first and soundest principle of natural justice. The rule against bias is explained in 3 important
headings with their sub headings they are or types of bias.
1. Pecuniary bias
2. Personal bias
3. Bias as to subject matter
4. Judicial obstinacy
Pecuniary bias;- a person cannot be judge in a cause. Wherein he has pecuniary interest even
the least pecuniary interest in the subject matter of the litigation will disqualify any person from
acting as a judge it is generally accepted that a justice who is interested in a matter before him
shall not take any part in the proceedings unless all parties expressly consented.
Dimes v. Grant Junction Canal is considered to be the classic example of the
application of the rule against pecuniary interest. In this case, the suits were decreed by the
Vice- Chancellor and the appeals against those decrees were filed in the Court of Lord
Chancellor Cottenham. The appeals were dismissed by him and decrees were confirmed in
favor of a canal company in which he was a substantial shareholder. The House of Lords agreed
with the Vice-Chancellor and affirmed the decrees on merits. In fact, Lord Cottenham's
decision was not in any way affected by his interest as a shareholder; and yet the House of
Lords quashed the decision of Lord Cottenham.
Dr. Bonhams case(1610). Dr. Bonham a doctor in london. Law of london established
a college of physicians to enrole the doctors and to collect the license fee. Bonham refused to
pay the license fee on his refusal college imposed fine on him. Half of the fine goes to crown
and half fine goes to college he challenged before the house of lords it quashed the decision.
Visakha patanam co operative motors transport ltd.v/s bangaruraju; the D.C. of
visakha patanam was president of above said motor transport ltd co-operative society and
chairman of the Road transport authority. He issued permits to co-operative society. Bangaru
raju challenged the action of D.C. before S.C. it quashed the D.C. Permit.

Personal bias
it is second type of bias according to this the deciding authority should not have any personal
interest in the disputed matter or parties. A number of circumstances may give rise to personal
bias. This personal bias may disqualify any person from acting as a judge. This personal bias
may occur under the following circumstances.
1. Personal friendship; where there exist any personal friendship b/w the decision maker
and any one of the party to the dispute may badly affect on the opposite party. So it is
a disqualification to act as a decision maker any decision is held to be void where it has
decided with personal friendship.
In the leading case of A.K. Kraipak v. Union of India, one N was a candidate for selection
to the Indian Foreign Service and was also a member of the Selection Board. N did not sit on
the Board when his own name was considered. Name of N was recommended by the Board
and he was selected by the Public Service Commission. The candidates who were not selected
filed a writ petition for quashing the selection of N on the ground that the principles of natural
justice were violated.
In State of U.P. v. Mohd. Nooh, a departmental inquiry was held against A by B. As one
of the witnesses against A turned hostile, B left the inquiry, gave evidence against A, resumed
to complete the inquiry and passed an order of dismissal. The Supreme Court held that ‘the
rules of natural justice were completely discarded and all canons of fair play were grievously
violated by B.’

Cottle v/s cottle. Mr. Cottle and mrs. Cottle were couples due to some disputes they filed
suits for the matrimonial relief. Judge was a family friend of mrs. Cottle and passed
judgment infavour of mrs. Cottle . mr. Cottle challenged the decision it was held to be void.
2. Family relationship; where there exist any family relationship b/w the decision maker
and any one of the party to the dispute may badly affect on the opposite party. So it is
a disqualification to act as a decision maker . any decision is held to be void where it
has decided on the ground of family relationship.
 Dr. Khanna v/s U.O.I ; A public corporation recruited managing director through selection
committee. A person who selected as managing director is a son-in-law of a member of
selection committee. Therefore the decision is void held by S.C.
3. Personal Hostility. Personal hostility b/w the decision maker and any one of the party
to a dispute may badly affect on the party. Therefore personal hostility is also treated
as disqualification.
R.V/S Handly; a case was instituted against accused and produced before magistrate. In
fact the magistrate had beaten the accused on another occasion. It was a disqualification to
decide the matter.

4. Professional relationship
5. Employer and employee relationship

Bias as to subject matter; this kind of bias also known as official bias/ departmental bias/
ministerial bias. This may arise when the judge has a general interest in the subject matter. A
general interest must be some direct connection with the litigation then only judge became dis
qualify to act as judge in that case.
Jain and jain treated departmental bias as against the natural principals of justice.
Further they classified into 4 kinds they are.
a. Partiality
b. Departmental bias
c. Prior utterance and pre judgment of issues
d. Acting under dictation

Partiality; partiality of the decission making authority disqualifies him to give the judgment.
State v/s mohd. Nooh; an enquiry officer conducted an enquiry against A. But one witness he
became hostile. Therefore enquiry officer himself gave evidence and it was recorded on that
basis A was dismissed from service. The court S.C. held that it was a clear violation of natural
principals of justice hence it is not valid.

Departmental bias;

Lavanya v/s Osmania university(1999) Lavanya wrote BSc exam in osmania

university and failed. She applied for revaluation and she passed in it. Later she wrote M.B.A
entrance and qualified for admission. Osmania university refused to admit and rejected her
application on the ground that she passed in revaluation. Court ordered infavour of her.

In Gullapalli Nageswara Rao v. A.P.S.R.T.C., the petitioners were carrying on a

motor transport business. The Andhra State Transport Undertaking published a scheme for
nationalization of motor transport in the State and invited objections. The objections filed by
the petitioners were received and heard by the Secretary and thereafter the scheme was
approved by the Chief Minister. The Supreme Court upheld the contention of the petitioners
that the official who heard the objections was ‘in substance’ one of the parties to the dispute
and hence the principles of natural justice were violated.

Prior utterance and pre judgment of issues;

Acting under dictation; the decision making authority should act independently. He should
not act under the directions of any other person. If any decision making authority makes the
decision under influence of 3rd person. It is liable to be set aside.
Mahadayal premachandra v/s C.T.O (commercial tax officer); commercial tax
officer sought instructions from superior officer, who instructed to impose certain tax. CTO
acted according to the instructions. S.C. held that he acted under the dictation of another person
so it is void.

Judicial Obstinacy
There may also be a judicial bias, i.e. bias on account of judicial obstinacy In State of
W.E. v. Shivananda Pathak, a writ of mandamus was sought by the petitioner directing the
Government to promote him. A Single Judge allowed the petition ordering the authorities to
promote the petitioner ‘forthwith.’ But the order was set aside by the Division Bench. After
two years, a fresh petition was filed for payment of salary and other benefits in the terms of the
judgment of the Single Judge (which was reserved in appeal). It was dismissed by the Single
Judge. The order was challenged in appeal which was heard by a Division Bench to which one
Member was a Judge who had allowed the earlier petition. The appeal was allowed and certain
reliefs were granted. The State approached the Supreme Court. Allowing the appeal and setting
aside the order, the Apex Court described the case of a new form of bias judicial obstinacy. It
said that if a judgment of a Judge is set aside by a superior court, the Judge must submit to that
judgment. He cannot rewrite overruled judgment in the same or in collateral proceedings. The
judgment of the higher court binds not only to the parties to the proceedings but also to the
Judge who had rendered it.

RULE FOR FAIR HEARING; NOTICE AND HEARING

Introduction: There are certain basic values which a man has always cherished. They can be
described as natural law or divine law. As a reasonable being, a man must apply this part of
law to human affairs. The underlying object of rules of natural justice is to ensure fundamental
liberties and rights of subjects. They thus serve public interest. The golden rule which stands
firmly established is that the doctrine of natural justice is not only to secure justice but to
prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more
– but nothing less.

Meaning
Audi alteram partem means ‘hear the other side’, or ‘no man should be condemned
unheard’ or ‘both the sides must be heard before passing any order.’

Doctrine Explained
The second fundamental principle of natural justice is audi alteram partem, i.e. no man
should be condemned unheard, or both the sides must be heard before passing any order. This
is the basic requirement of rule of law. It has been described as ‘foundational and fundamental’
concept. It lays down a norm which should be implemented by all courts and tribunals at
national as also at the international level. In short, before an order is passed against any person,
reasonable opportunity of being heard must be given to him. Generally, this maxim includes
two elements:
• notice; and
• hearing

Notice
Before any action is taken, the affected party must be given a notice to show cause
against the proposed action and seek his explanation. It is a sine qua non of the right of fair
hearing. Any order passed without giving notice is against the principles of natural justice and
is void ab initio.

In R. v. University of Cambridge, Dr Bentley was deprived of his degrees by the

Cambridge University on account of his alleged misconduct without giving any notice or
opportunity of hearing. The Court of King’s Bench declared the decision as null and void.

The object of a notice is to give an opportunity to the individual concerned to present

his case and, therefore, if the party is aware of the charges or allegations, a formal defect would
not invalidate the notice, unless prejudice is caused to the individual. If the government servant
is placed under suspension and the inquiry is held at a different place from the place of his
residence and he is not able to attend the inquiry due to non- payment of subsistence allowance,
the inquiry is vitiated.
Whether prejudice is caused or not is a question of fact and it depends upon the facts
and circumstances of the case. Moreover, the notice must give a reasonable opportunity to
comply with the requirements mentioned therein. Thus, to give 24 hours’ time to dismantle a
structure alleged to be in a dilapidated condition is not proper and the notice is not valid. If the
inquiry is under Article 311 of the Constitution of India, two notices (first for charges or
allegations and second for proposed punishment) should be given. Where a notice regarding
one charge has been given, the person cannot be punished for a different charge for which no
notice or opportunity of being heard was given to him.
Hearing
The second requirement of audi alteram partem maxim is that the person concerned
must be given an opportunity of being heard before any adverse action is taken against him.

In the historic case of Cooper v. Wandsworth Board of Works, the defendant Board had
power to demolish any building without giving any opportunity of hearing if it was
erectedwithout prior permission. The Board demolished the house of the plaintiff under this
provision. The action of the Board was not in violation of the statutory provision. The court
held that the Board's power was subject to the qualification that no man can be deprived of his
property without having an opportunity of being heard.

The extent of opportunity of hearing to be given is neither dependent upon the quantum
of loss to the aggrieved person nor referable to the fatness of the stake but is essentially related
to the demands of a given situation. Therefore, if a show cause notice is issued and the
explanation is considered before taking action under the statutory provisions, the rules of
natural justice cannot be said to have been violated on the ground that more opportunity should
have been afforded as a huge amount was at stake.

Essentials ingredients of rule against bias

1. Reasonable notice
2. Time
 3. Unambigucious
4. Specific
5. Evidence must receive from two sides
6. Free from influence
7. Impartiality
8. One who hears must decide
9. Hearing may be oral or writing
10. Recognize the right to be represented by council
11. Cross examination

Cases
1. James Bagg v/s Mayor; mayor passed an order to remove the james bagg due to some
quaral between them without giving any notice court held that removal is null and void.
2. R.V/S University of Cambridge; this university awarded a MBBS decree to one mr.
Bentley. Without giving notice cancelled his degree on the ground of misbehaved and
did some fraud with the university.
3. Cooper v/s Wandsworth Board of Workers; it is statutory muncipal authority it
demolishes house of the cooper without giving notice even then he constructed without
consult with the authority. It is againest the natural principals of justice.
4. Spackman v/s Plumstead Board of Workers; it is statutory body, petitioner
constructed his house encroaching some little area of roadside margin area by over
sight. The board demolished the building and prosecuted without notice. It is void.
5. Ridge V/S Baldwin; informed him of the charges against him and give him a proper
appartunity to be heard.
6. Gullapalli Nageshwar Rao v/s A.P.S.R.T.C.

SPEAKING ORDER

Introduction: A ‘speaking order’ means an order speaking for itself. To put it simply, every
order must contain reasons in support of it.

Importance
Giving of reasons in support of an order is considered to be the third principle of natural
justice. According to this, a party has a right to know not only the result of the inquiry but also
the reasons in support of the decision.

Object
There is no general rule of English law that reasons must be given for administrative or
even judicial decisions. In India also, till very recently it was not accepted that the requirement
to pass speaking orders is one of the principles of natural justice. But as Lord Denning says,
“the giving of reasons is one of the fundamentals of good administration.” The condition to
record reasons introduces clarity and excludes arbitrariness and satisfies the party concerned
against whom the order is passed.
Today, the old ‘police State’ has become a ‘welfare State.’ The governmental functions
have increased, administrative tribunals and other executive authorities have come to stay and
they are armed with wide discretionary powers and there are all possibilities of abuse of power
by them. To provide a safeguard against the arbitrary exercise of powers by these authorities,
the condition of recording reasons is imposed on them. It is true that even the ordinary law
courts do not always give reasons in support of the orders passed by them when they dismiss
appeals and revisions summarily. But regular courts of law and administrative tribunals cannot
be put at par.

General Propositions

The law relating to ‘speaking orders’ may be summed up thus:

1. Where a statute requires recording of reasons in support of the order, it imposes an

obligation on the adjudicating authority and the reasons must be recorded by the
authority.
2. Even when the statute does not lay down expressly the requirement of recording
reasons, the same can be inferred from the facts and circumstances of the case.
3. Mere fact that the proceedings were treated as confidential does not dispense with
the requirement of recording reasons.
4. If the order is subject to appeal or revision (including Special Leave Petition under
Article 136 of the Constitution), the necessity of recording reasons is greater as
without reasons the appellate or revisional authority cannot exercise its power
effectively inasmuch as it has no material on which it may determine whether the
facts were correctly ascertained, law was properly applied and the decision was just
and based on legal, relevant and existent grounds. Failure to disclose reasons
amounts to depriving the party of the right of appeal or revision.
5. Even ‘fair play in action’ requires that an adjudicating authority should record
reasons in support of order passed by it.
6. There is no prescribed form and the reasons recorded by the adjudicating authority
need not be detailed or elaborate and the requirement of recording reasons will be
satisfied if only relevant reasons are recorded.
7. A writ court cannot interfere with an order passed by an adjudicating authority only
on the ground that the reasons recorded by such authority are inadequate or
insufficient.
8. If, however, the reasons recorded by such authority are factually incorrect, legally
untenable or totally foreign or irrelevant to the issue involved in the lis, the power of
judicial review can be exercised.
9. It is not necessary for the appellate authority to record reasons when it affirms the
order passed by the lower authority.
10. Where the lower authority does not record reasons for making an order and the
appellate authority merely affirms the order without recording reasons, the order
passed by the appellate authority is bad.
11. Where the appellate authority reverses the order passed by the lower authority,
reasons must be recorded, as there is a vital difference between an order of reversal
and an order of affirmation.
12. The validity of the order passed by the statutory authority must be judged by the
reasons recorded therein and cannot be construed in the light of subsequent
explanation given by the authority concerned or by filing an affidavit.
13. If the reasons are not recorded in support of the order it does not always vitiate the
action.
14. The duty to record reasons is a responsibility and cannot be discharged by the use of
vague general words.
15. If the reasons are not recorded, the court cannot probe into reasoning of the order.
 16. The doctrine of recording reasons should be restricted to public law only and should
not be applied to private law e.g. arbitration proceedings.
17. The rule requiring reasons to be recorded in support of the order is one of the
principles of natural justice.
18. Normally, the reasons recorded by the authority should be communicated to the
aggrieved party.
19. Even when the reasons are not communicated to the aggrieved party in public
interest, they must be in existence.
20. The reasons recorded by the statutory authority are always subject to judicial
scrutiny.

EXCEPTIONS TO THE NATURAL PRINCIPLES OF JUSTICE

Application of the principles of natural justice can be excluded either expressly or by

necessary implication, subject to the provisions of Art. 14 and 21 of the Constitution.
Therefore, if the statute, expressly or by necessary implication, precludes the rules of natural
justice it will not suffer invalidation on the ground of arbitrariness. Other exclusionary
situations may include:

(1) Exclusion in emergency: In such 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 paralyse the process, law will exclude it. In a situation
of emergency where precious rights of people are involved, post-decisional hearing has
relevance to administrative and judicial gentlemanliness. In Swadeshi Cotton Mills V. Union
of India, the court held that even in emergent situations the competing claims of ‘hurry and
hearing’ are to be reconciled, no matter the application of the audi alteram paratem rule at the
pre-decisional stage may be ‘a short measure of fair hearing adjusted, attuned and tailored to
the exigency of the situation.’

(2) Exclusion in cases of confidentiality: In Malak Singh V. State of Punjab, the Supreme
Court held that the maintenance of surveillance register by the police is a confidential
document. Neither the person whose name is entered in the register nor any other member of
the public can have access to it. Furthermore, the Court observed that the 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.

(3) Exclusion in cases of interim preventive action: If the action of the administrative
authority is 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.

(4) Exclusion in cases of legislative action: Legislative action, plenary or subordinate, is not
subject to the rules of natural justice because these rules lay down a policy without reference
to a particular individual. On the same logic principles of natural justice can also be excluded
by a provision of the Constitution also.
(5) Where no right of the person is infringed: Where no right has been conferred on a person
by any statute nor any such right arises from common law the principles of natural justice are
not applicable.

(6) Exclusion in cases of Statutory Exception or Necessity: Disqualification on the ground

of bias against a person will not be applicable if he is the only person competent or authorized
to decide that matter or take that action.

Charan Lal Sahu V. Union of India (Bhopal Gas Disaster Case) is a classical
example of the application of this exception. In this case the constitutional validity of the
Bhopal Gas Disaster Act which had authorized the Central Government to represent all the
victims in matters of compensation award, had been challenged on the ground that because the
Central Government owned 22 percent share in the Union Carbide Company and as such it was
a joint tortfeasor and thus there was a conflict between the interests of the government and the
victims. Negativating the contention the court observed that even if the argument was correct
the doctrine of necessity would be applicable to the situation because if the government did not
represent the whole class of gas victims no other sovereign body could so represent and thus
the principles of natural justice were not attracted.

(7) Exclusion in case of contractual arrangement: In State of Gujarat V. M.P. Shah

Charitable Trust, the Supreme Court held the principles of natural justice are not attracted in
case of termination of an arrangement in any contractual field. Termination of an
arrangement/agreement is neither a quasi-judicial nor an administrative act so that the duty to
act judicially is not attracted.

(8) Exclusion in case of government policy decision: In taking of a policy decision in

economic matters at length, the principles of natural justice have no role to play. If in exercise
of executive powers the government takes any policy decision, principles of natural justice can
be excluded because it will be impossible and impracticable to give formal hearing to all those
who may be affected whenever a policy decision is taken and at times it will be against public
interest to do so.

(9) ‘Useless formality’ theory: 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.
Therefore, where the result would not be different, and it is demonstrable beyond doubt, order
of compliance with the principles of natural justice will not be justified.

(10) Exclusion in case of purely administrative matters

(11) Exclusion based on impracticability.

Effects of Breach of the Rules of Natural Justice: Action Void or Voidable:

 Courts are unanimous that a decision rendered in violation of the rule against bias is
merely voidable and not void. The aggrieved party may thus waive his right to avoid the
decision; as where timely objection is not made even though there is full knowledge of the bias
and the right to object to it.

There is fundamental disagreement amongst courts and jurists as to the effect of a

breach of the rule of fair hearing on any decision. Professor Wade is of the view that breaches
of the rules of natural justice must have the effect of producing void decisions.

The Supreme court in Nawab Khan V. State of Gujarat categorically held that an
order which infringes a fundamental freedom passed in violation of the audi alteram partem
rule is a nullity. The appellant in this case had been prosecuted and convicted fro disobeying
an externment order passed in violation of the rules of natural justice is of no effect and its
violation is no offence because such a determination is jurisdictional error going to the very
roots of a determination.

However, the decision of the Supreme Court in Maneka Gandhi V. Union of India
created doubts about the efficacy of this proposition. The cout however concluded that the
impounding of the passport attracts rules of natural justice and their violation is a fatal flaw
which could make the order void. But, taking note of the assurance of the government that the
appellant would be provided with a post-decisional hearing, declined to interfere with the
impoundment order. The effect of this decision is that an order passed in violation of the rules
of natural justice is not void hence can be validated by post-decisional hearing. The same was
the conclusion of the Supreme Court in Swadeshi Cotton Mills V. Union of India. The court
held that a quasi-judicial or administrative decision rendered in violation of the audi alteram
partem rule, whenever it can be read as an implied requirement of the law, is null and void, yet
it refrained from striking down the impugned order on the assurance of the Solicitor-General
that a post-decisional hearing would be given.

However, a decision of the Supreme Court in A. R. Antulay V. R.S. Nayak, favoured

the proposition that any action in violation of the principles of natural justice is a nullity.
Nevertheless, it may be pointed out that whenever an order is struck down as invalid, being
violative of principles of natural justice, there is no final decision of the case and, therefore,
proceedings are left open.

Those who suggest that a decision in breach of the audi alteram partem is merely
voidable simply try to emphasise the fluctuating contents of the rule and the administrative
inconvenience which would be caused if the decision is considered as void. The courts should
not worry about administrative inconvenience because the administration can well look after
its own convenience. In situations of denial of fair hearing at pre-decisional stage, a post-
decisional hearing cannot serve any purpose because in all probability it will be nothing more
than a shallow public relations exercise.
 ADMINISTRATIVE DISCRETION

Introduction: The traditional theory of 'laissez faire’ has been given up by the State, and the
old ‘police State’ has now become a ‘welfare State.’ Because of this philosophy, governmental
functions have increased. The administrative authorities have acquired vast discretionary
powers and generally, exercise of those powers is left to the subjective satisfaction of the
administration without laying down the statutory guidelines or imposing conditions. The
administration administers law enacted by the legislature and thus performs executive
functions; it also enacts legislation when the legislative powers are delegated to it by the
legislature and it also interprets law through administrative tribunals. Thus, practically there is
concentration of all powers in the hands of the administration – legislative, executive and
judicial.

Meaning
‘Discretion’, proclaimed Coke, “is a science or understanding to discern between falsity
and truth, between right and wrong, between shadows and substance, between equity and
colourable glosses and pretences, and not to do according to their wills and private affections.”
 Thus, in short, here the decision is taken by the authority not only on the basis of the
evidence but in accordance with policy or expediency and in exercise of discretionary powers
conferred on that authority.

Control over administrative discretion

General rule is judiciary should not interfere in the discretionary powers of
administrative authorities. Unless there is no control over the discretionary powers of
administrative authorities they will become dictator, monarch hence judiciary interfere in the
discretionary powers of administrative authorities under 3 circumstances.
(1) Failure to exercise discretion
(2) Excess or abuse of discretion
(3) Violation of fundamental rights

Failure to Exercise Discretion

The main object of conferring discretionary power on an administrative authority is that

the authority itself must exercise the said power. If there is failure to exercise discretion on the
part of that authority the action will be bad. Such type of flaw may arise in inter alia the
following circumstances:
• Sub-delegation;
• Imposing fetters on discretion;
• Acting under dictation;
• Non-application of mind; and
• Power coupled with duty.

Sub-delegation
de Smith says, “a discretionary power must, in general, be exercised only by the
authority to which it has been committed. It is a. well-known principle of law that when a
power has been confided to a person in circumstances indicating that trust is being placed in
his individual judgment and discretion, he must exercise that power personally unless he has
been expressly empowered to delegate it to another.” The very object of conferring a power on
a particular administrative authority is that the power must be exercised by that authority and
cannot be sub-delegated to any other authority or official. “Delegation may be the result of
honest misapprehension by the authority concerned of the legal position. It sometimes arises
out of a desire to expedite official business. But still it will be invalid if it is not legally
permitted.”

Thus, in Allingham v. Minister of Agriculture and Fisheries and Ganpati Singhji

v. State of Ajmer, the sub-delegation of power was held to be bad. Likewise, in Sahni Silk
Mills (P) Ltd. v. ESI Corpn., the parent Act enabled the corporation to delegate its power to
recover damages to the Director General, who, however, in turn sub-delegated the said power
to Regional-Directors. Since there was no such provision permitting the Director General to
sub-delegate his power, the action was held to be bad.

Again, where the Act provided that no suit shall be filed for eviction of a tenant without
permission of a District Magistrate or any officer authorized by him, an order granting
permission by Additional Magistrate to whom powers were delegated was held legal and valid.
Proper test whether sub-delegation is legal or not is to decide whether the final decision
rests with the authority on whom power is conferred by the Act. If such decision is taken by
that authority, the decision is valid. If the decision is taken by any other authority, it would be
invalid and unlawful.

As to the effect of the decision, it can be said that if it is in conformity with law, it is
legal, valid and enforceable. But, if it contrary to law or inconsistent with statutory provision,
the action is no action in the eye of law.

Imposing fetters on discretion

An authority entrusted with discretionary power must exercise the same after
considering individual cases. Instead of doing that if the authority imposes fetters on its
discretion by adopting fixed rules of policy to be applied in all cases coming before it, there is
failure to exercise discretion on the part of that authority.
What is expected of the authority is that it must consider the facts of each case, apply its mind
and decide the same. If any general rule is pronounced, which will be applied to all cases, there
is no question of considering the facts of an individual case at all and exercising discretion by
the authority. By ‘shutting ears’, the authority cannot foreclose decision making process.

In R. v. Metropolitan Police Commr., a chief constable adopted a rigid rule not to

institute any prosecution at all for an anti-social class of criminal offence. The action was held
to be bad.

Acting under Dictation

Sometimes, an authority entrusted with a power does not exercise that power but acts
under the dictation of a superior authority. Here, the authority invested with the power purports
to act on its own but ‘in substance’ the power is exercised by someone else. The authority
concerned does not apply its mind take action on its own judgment, even though it was not so
intended by statute. In law, this amounts to non-exercise of power by the authority and action
is bad.

It is well-settled that if the authority permits its decision to be influenced by the

dictation of others, it would amount to abdication and surrender of discretion. If the authority
‘hands over its discretion to another body it acts ultra vires.’

Thus, in Orient Paper Mills v. Union of India, under the relevant statute, the Deputy
Superintendent was empowered to levy excise. Instead of deciding it independently, the Deputy
Superintendent ordered levy of excise in accordance with the directions issued by the Collector.
The Supreme Court set aside the order passed by the Deputy Superintendent.

In Barium Chemicals Ltd. v. Company Law Board, investigation or affairs was

ordered by the Chairman. That action was challenged inter alia the ground that it was taken at
the behest of the Finance Minister. Holding the order legal and valid, the Court observed that
the circumstances might create suspicion, but suspicion, however grave, cannot take the place
of proof.

Non-application of mind
When a discretionary power is conferred on an authority, the said authority must
exercise that power after applying its mind to the facts and circumstances of the case in hand.
If this condition is not satisfied, there is clear non-application of mind on the part of the
authority concerned. The authority might be acting mechanically, without due care and caution
or without a sense of responsibility in the exercise of its discretion. Here also, there is failure
to exercise discretion and the action is bad.

In the well-known case of Barium Chemicals Ltd. v. Company Law Board, an order
of investigation against the petitioner company was passed by the Central Government. Under
the Companies Act, 1956, the Government was empowered to issue such order if, there are
circumstances suggesting fraud on the part of the management. It was held by the Supreme
Court that it was necessary for the Central Government to state the circumstances which led to
the impugned action so that the same could be examined by the Court.

Power coupled with duty

Several statutes confer powers on administrative authorities and officers to be exercised
by them in their discretion. The power is in permissive language such as ‘it may be lawful’, ‘it
shall be lawful,’ ‘it may be permissible,’ etc. The question is whether it is open to the authorities
to exercise or not to exercise the power at their sweet wills.

Excess or abuse of discretion may be inferred from the following circumstances:

a. Acting without jurisdiction;
b. Exceeding jurisdiction;
c. Arbitrary action;
d. Irrelevant considerations;
e. Leaving out relevant considerations;
f. Mixed considerations;
g. Mala fide;
h. Collateral purpose; Improper object;
i. Colourable exercise of power;
j. Colourable legislation: Fraud on Constitution
k. Non-observance of natural justice;
l. Unreasonableness.

Acting without jurisdiction

It is well-settled that there can be no exercise of power unless such power exists in law.
If the power does not exist, the purported exercise of power would be non-existent and void.
Likewise, where the source of power exists, exercise of it is referable only to that source and
not to some other source. But if a source of power exists, mention of wrong provision or even
omission to mention the provision containing such power will not invalidate such order.

In R. v. Minister of Transport, even though the Minister had no power to revoke the
licence, he passed an order of revocation. The action was held ultra vires and without
jurisdiction. Similarly, if the appropriate government has power to refer an "industrial dispute"
to a tribunal for adjudication, it cannot refer a dispute which is not an industrial dispute. Again,
if a taxing authority imposes tax on a commodity exempted under the Act, the action is without
authority of law.

Exceeding Jurisdiction
An administrative authority must exercise the power within the limits of the statue and
if it exceeds those limits, the action will be held ultra vires. A question whether the authority
acted within the limits of its power or exceeded it can always be decided by a court.
For example, if an officer is empowered to grant a loan of Rs 10,000 in his discretion for a
particular purpose and if he grants a loan of Rs 20,000, he exceeds his power (jurisdiction) and
the entire order is ultra vires and void on that ground.

Arbitrary Action
If the action complained of is arbitrary, discriminatory, irrational, unreasonable or
perverse, it can be set aside in exercise of power of judicial review. In Barium Chemicals Ltd.
v. Company Law Board, formation of opinion by the Central Government was held arbitrary
and unreasonable.
Irrelevant Considerations
A power conferred on an administrative authority by a statute must be exercised on the
considerations relevant to the purpose for which it is conferred. Instead, if the authority takes
into account wholly irrelevant or extraneous considerations the exercise of power by the
authority will be ultra vires and the action bad.

It is settled law that where a statute requires an authority to exercise power, such
authority must be satisfied about existence of the grounds mentioned in the statute. The courts
are entitled to examine whether those grounds existed when the action was taken. A person
aggrieved by such action can question the legality of satisfaction by showing that it was based
on irrelevant grounds. Thus, the existence of the circumstances is open to judicial review.

This may, however, be distinguished from mala fide or improper motive inasmuch as
here ‘the irrelevant considerations dominate not because of any deliberate choice of the
authority but as a result of the honest mistake it makes about the object or scope of its powers.’

Thus, when the red-haired teacher was dismissed because she had red-hair, Of because
the teacher took an afternoon off in poignant circumstances, or that the teacher refused to
collect money for pupils' meals, the action is bad in law.

Leaving out Relevant Considerations

As discussed above, the administrative authority cannot take into account irrelevant or
extraneous considerations. Similarly, if the authority fails to take into account relevant
considerations, then also the exercise of power would be bad.

In Ashadevi v. Shivraj, an order of detention was passed against the detenu under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(COFEPOSA). The order was based on the detenu's confessional statements made before the
Customs authorities. But the said confessional statements were subsequently retracted by the
detenu before the order of detention. The Supreme Court held that the question whether the
earlier statements recorded were voluntary or not was a ‘vital’ fact which ought to have been
considered by the detaining authority before passing the order of detention. But if such
retraction is an afterthought, it will not vitiate subjective satisfaction.

Mixed Considerations
Sometimes, a peculiar situation arises. Here the order is not wholly based on extraneous
or irrelevant considerations. It is based partly on relevant and existent considerations and partly
on irrelevant or non-existent considerations. There is no uniformity in judicial pronouncements
on this point. In some cases, it was held that the proceedings were vitiated, while in other cases,
it was held that the proceedings were not held to be bad. It is submitted that the proper approach
is to consider it in two different situations:
• Conclusions based on subjective satisfaction; and
• Conclusions based on objective facts.

Mala fide
Every power must be exercised by the authority reasonably and lawfully. However, it
is rightly said, ‘every power tends to corrupt and absolute power corrupts absolutely.’ It is,
therefore, not only the power but the duty of the court to see that all authorities exercise their
powers properly, lawfully and in good faith. If the power is not exercised bona fide, the exercise
of power is bad and the action illegal. Though precise and scientific definition of the expression
‘mala fide’ is not possible, it means ill-will, dishonest intention or corrupt motive. A power
may be exercised maliciously, out of personal animosity, ill-will or vengeance or fraudulently
and with intent to achieve an object foreign to the statute.
From the above definition, it can be said that malice is of two types:
• Express malice or ‘malice in fact’, and
• Implied or legal malice or ‘malice in law’

Mala fides violating proceedings may be factual or legal.

Former is actuated by extraneous considerations whereas the latter arises where a public
authority acts deliberately in defiance of law, may be, without malicious intention or improper
motive. In other words, a plea of mala fide involves two questions;
(i) whether there is a personal bias or oblique motive; and
(ii) whether the administrative action is contrary to the objects, requirements and
conditions of a valid exercise of power.

Collateral purpose: Improper object

A statutory power conferred on the authority must be exercised for that purpose alone
and if it is exercised for a different purpose, there is abuse or power by the authority and the
action may be quashed. Improper purpose must be distinguished from 'mala fide' exercise of
power. In the latter, personal ill-will, malice or oblique motive is present, while in the former
it may not be so, and the action of the authority may be bona fide and honest and yet, if it is
not contemplated by the relevant statute, it may be set aside. In other words, “a power used
under the misapprehension that it was needed for effectuating a purpose, which was really
outside the law or the proper scope of the power, could be said to be an exercise for an
extraneous or collateral purpose.”

In Nalini Mohan v. Distt. Magistrate, the relevant statute empowered the authority to
rehabilitate the persons displaced from Pakistan as a result or communal violence. That power
was exercised to accommodate a person who had come from Pakistan on medical leave. The
order was set aside.

Colourable Exercise of Power

Where a power is exercised by the authority ostensibly for the purpose for which it was
conferred, but in reality for some other purpose, it is called colourable exercise of power. Here,
though the statute does not empower the authority to exercise the power in a particular manner,
the authority exercises the power under the 'colour' or guise of legality.
 This is also known as fraudulent exercise of power. The doctrine is based on the
principle that an administrative authority cannot exercise power for a purpose not warranted
by law.

Non-observance of Natural Justice

By now, it is well-settled law that even if the exercise of power is purely administrative
in nature, if it adversely affects any person, the principles of natural justice must be observed
and the person concerned must be heard. Violation of the principles of natural justice makes
the exercise of power ultra vires and void.

Unreasonableness
A discretionary power conferred on an administrative authority must be exercised by
that authority reasonably. If the power is exercised unreasonably, there is an abuse of power
and the action of the authority will be ultra vires.
The term 'unreasonable' is ambiguous and may include many things, e.g. irrelevant or
extraneous considerations might have been taken into account by the authority or there was
improper or collateral purpose or mala fide exercise of power by it or there was colourable
exercise of power by the authority and the action may be set aside by courts. The concept of
reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden
thread which runs through the whole of the fabric of the Constitution. Judicial review of
administrative action is a basic feature of the Constitution.
In Air India v. Nergesh Meerza, a regulation framed by Air India empowering
termination of services of an Air Hostess on her first pregnancy was held to be extremely
arbitrary, unreasonable, abhorrent to the notions of civilized society and interfereing with the
ordinary course of human nature.

PUBLIC CORPORATIONS

Introduction: No statute or court has ever attempted or been asked to define the expression
‘public corporation.’ It has no regular form and no specialized function. It is employed
wherever it is convenient to confer corporate personality.

In Dartmouth College v. Woodward, John Marshall stated: “A corporation is an

artificial being, invisible, intangible, and existing only in the contemplation of the law. Being
the mere creature of the law, it possesses only those properties which the Charter of its creation
confers on it, either expressly, or as incidental to its very existence. Those are such as are
supposed best calculated to effect the object for which it was created. Among the most
important are immortality, and, if the expression be allowed, individuality; properties by which
a perpetual succession of many persons are considered the same, and may act as a single
individual.”
The main purpose of establishing public corporations is to promote economic activity
through autonomous bodies. With that object, these corporations have been granted very wide
powers and there is no interference by any authority in exercise of these powers by the
corporations. But it is also necessary that some control over these corporations should be there
so that the powers conferred on such corporations may not be arbitrarily exercised or abused,
and it may not become the ‘headless fourth organ’ of the Government.
JUDICIAL CONTROL

General
Since a public corporation is a legal entity it can sue and be sued. It is a body corporate
having perpetual succession and a common seal. Legal proceedings may be taken by or against
a corporation in its corporate name. It is a distinct and separate entity from the Crown or the
Government. Jurisdiction of courts over a public corporation is the same as it is over any private
or public company except that the powers of the former depend on the provisions of a special
statute while the powers of a company are derived from the terms of its Memorandum of
Association. In some statutes an express provision is made enabling a corporation to be sued.
But even in the absence of such a provision, a corporation can be sued like any other person.
In fact, when any statute refers to a ‘person’, it includes a corporation also. Accordingly, a
public corporation is liable for a breach of contract and also in tort for tortious acts of its
servants like any other person. It is liable to pay tax unless expressly exempted and cannot
invoke the exemption granted to the State under Article 289 of the Constitution of India. It is
bound by a statute. It cannot claim ‘Crown privilege.’

GOVERNMENTAL CONTROL

General
As the judicial control over public corporations is not effective, it needs to be
supplemented by other controls. Government also exercises some control and supervision over
such corporations as the custodian of public interest in different ways.

Appointment and removal of members

Generally, the power of appointment and removal of the Chairman and the members of
a public corporation is vested in the Government. This is the key provision and the most
effective means of control over a public corporation. In some cases, the term of office of a
member is also left to be determined by the Government. In some statutes, a provision is made
for removal of a member on the ground that the member is absent from meetings for a specified
period, he is adjudged a bankrupt or is 'otherwise unsuitable' to continue as a member.

Finance
The Government exercises effective control over a public corporation when such
Corporation is dependent on the Government for finance. A statute may require previous
approval of the Government for undertaking any capital expenditure exceeding a particular
amount. It may also provide to submit to the Government its programme and budget for the
next year and to submit the same in advance. It may also impose a condition on the corporation
to take consent of the Government before borrowing money or may insist for issuance of bonds
and debentures to secure payment made by the Government to the corporation. The
Comptroller and Auditor General exercises control in the matter of audit or accounts submitted
by public corporations.

Dissolution or supersession of Corporation

A constituent statute may also empower the Government to abolish, dissolve or
supersede a corporation if the corporation exceeds its authority or abuses its powers. Even if
such 'drastic' power is not exercised, it works as a cheque on the functioning of the corporation.

Cancellation, suspension or modification of acts

 An Act creating a corporation may as well provide that all acts and proceedings of the
corporation may be subject to the control of the Government which may cancel, suspend or
modify as it may think fit any action taken by the Corporation.

Institution of enquiries
A statute may also enable the Government to order enquiries into the working of the
corporation in certain circumstances. Such power may work as a check against any deviation
from the norms of functioning of the corporation.

Directives
An important technique involved to reconcile governmental control with the autonomy
of the undertaking is to authorize the Government to issue directives to public undertakings on
matters of 'policy' without interfering with the matters of day-to-day administration. A statute
may empower the Government to issue such directives as it may think necessary on questions
of policy affecting the manner in which a corporation may perform its functions. The
corporation will give effect to such directives issued by the Government. A statute may also
provide that in case 'any question arises whether a direction relates to matter of policy involving
public interest, the decision of the (Central) Government thereon shall be final.’

It is no doubt true that such directions should relate to questions of policy and should
not be routine administrative instructions in the day-to-day working of the corporation. But it
is very difficult to draw a dividing line between matters of 'policy' and 'day-to-day' working of
a public corporation and by this method, the Government can exercise effective control over
public corporations. But unfortunately, in practice, the Government hardly exercises its power
to issue policy directives.

Rules and Regulations

Usually a constituent statute creating a corporation contains provisions to make rules
and regulations. The provision empowers the Central Government to make rules ‘to give effect
to the provisions of the Act.’ The other provisions authorize the corporation 'with the prior
approval of the Central Government' to make regulations 'not inconsistent with the Act and the
Rules made thereunder' for enabling it to discharge its functions under the Act. Thus, even in
case of 'filming rules and regulations, the Government is having the upper hand. Regulations
promulgated without previous approval of the Government cannot be said to be valid. Again,
in case of inconsistency between the rules and the regulations, the rules would prevail and the
regulations will have to give way to the extent of inconsistency with the rules made by the
Central Government.

PARLIAMENTARY CONTROL

General
Public corporations are created and owned by the State, financed from public funds and
many a time they enjoy full or partial monopoly in the industry, trade or business concerned.
They are expected to exercise their powers in the public interest. It is, therefore, necessary for
Parliament to exercise some degree and mode of control and supervision over these
corporations. The methods adopted to exercise such control are numerically four.

Statutory provisions
All public corporations are established by or under statutes enacted by Parliament or
State Legislatures. The powers to be exercised by such corporations can be defined by them. If
any corporation exceeds or abuses its powers, Parliament or the State Legislature can dissolve,
supersede or even abolish the said corporation. Even though this type of control is not
frequently employed, it is a salutary check on the arbitrary exercise of power by the
corporation. Parliament also exercises effective control through technique of ‘laying.’

Questions
Through this traditional method, the members of Parliament put questions relating to
the functions performed by public corporations to the Minister concerned. But this method has
not proved to be very effective because of the authority of public corporations in their fields.

Accordingly, broad principles subject to which questions relating to these undertakings

can be asked, have been laid down, namely, questions relating to policy, an act or omission on
the part of a Minister, or a matter of public interest (even though seemingly pertaining to a
matter of day-to-day administration or an individual case), are ordinarily admissible. Questions
which clearly relate to day-to-day administration of the undertakings are normally not
admissible.

Debates
A more significant and effective method of parliamentary control is debate on the
affairs of a public corporation. Usually, this method is followed when annual accounts and
reports regarding the corporation are placed before Parliament for discussion in accordance
with the provisions of the statute concerned. There is no general obligation on the part of all
corporations to present their budget estimates to Parliament. Estimates Committee, therefore,
recommended that corporations should prepare a performance and programme statement for
the budget year together with the previous year's statement and it should be made available to
Parliament at the time of the annual budget.

Parliamentary Committees
This is the most effective form of parliamentary control and supervision over the affairs
conducted by public corporations. Parliament is a busy body and it is not possible for it to go
into details about the working of these corporations. Parliament has, therefore, constituted the
Committee on Public Undertakings in 1964. The functions of the Committee are to examine
the reports and accounts of the public undertakings, to examine the reports, if any, of the
Comptroller and Auditor-General on the public corporations, to examine in the context of the
autonomy and efficiency of the public corporations, whether their affairs are being managed in
accordance with sound business principles and prudent commercial practices.
The recommendations of the Committee are advisory and, therefore, not binding on the
Government. Yet, by convention, they are regarded as the recommendations by Parliament
itself, and the Government accepts those recommendations; and in case of non-acceptance of
the recommendations of the Committee, the ministry concerned has to give reasons therefor.

CONTROL BY PUBLIC

General
In the ultimate analysis, public corporations are established for the public and they are
required to conduct their affairs in the public interest. In the ultimate analysis, public
enterprises are owned by the people and those who run them are accountable to the people. It
is, therefore, necessary that in addition to judicial, parliamentary and governmental control,
these corporations must take into account public opinion. There are different means of
representation of the 'consumer' or public interest.
Consumer Councils
These are bodies established under the authority of the statute constituting the
corporations concerned with the object of enabling "consumers" to ventilate their grievances,
or make their views known to the corporations. The outstanding examples of consumer
councils are to be found in the electricity and gas industries. The difficulty about these councils
is that the members of the general public have neither the technical knowledge nor a keen
interest in the affair of certain consumer councils; e.g. Gas or Electricity Consumer Councils.
These councils may make recommendations to their area boards, but there have been very few
occasions when alterations of policy decisions have resulted.

Membership
In some cases, Parliament has arranged for members of certain public corporations to
be nominated by local authorities and other bodies interested in the functions of the particular
corporation. Thus, members of Hospital Management Committees are appointed by the
Regional Hospital Board after consultation with local health authorities, executive councils and
other officials, as required by the statute. Sometimes, such consultation is made mandatory.
Some statutes also provide that certain members of a council must possess particular
qualifications.

Consumers and Courts

Due to rapid development of Administrative Law and consciousness of rights by
vigilant citizens, there is a clear tendency ort the part of the Consumers to approach courts for
the purpose of ventilating their grievances. More and more cases are coming before the courts
by consumers in their individual capacity or through some organization by way of Public
Interest Litigation (PIL).

Consumer Protection Act

With a view to provide for better protection of the interests of consumers and for that
purpose to make a provision for the establishment of Consumer Councils and other authorities
for the settlement of consumers disputes and for matters connected therewith, Parliament
enacted the Consumer Protection Act, 1986. The Act provides for establishment of consumer
protection councils, and also sets up machinery for settlement of consumer disputes.
 OMBUDSMAN

There has been tremendous increase in the powers and functions of the administrative
authorities. They discharge not only the administrative functions but also quasi-judicial, quasi
legislative andMinisterialfunctions. The administrative authorities enjoy wide discretionary
powers. Welfare state cannot be successful without exercising the discretionary powers by its
officials. The vast discretionary powers of administrative authorities create several problems
in the modern administration and affect the life of individuals in various spheres. The increase
of discretionary powers of the administrative authorities has also increased the opportunities of
misuse or abuse of powers, corruption, maladministration inaction, delay in action, and
administrative in efficiency. As a general rule even courts should not interfere in the
discretionary powers of the administrators. All these consequences lead to search new remedies
like Ombudsman.

The office of the ombudsman originated in Sweden in 1809.A.D. Ombudsman is a

Scandinavian word stands for “an officer appointed by legislature to handle complaints against
administrative and judicial action or for the purpose of investigate or supervise the
maladministration of executive and protect the citizens from the abuse or misuse of executive
powers”.

The role of ombudsman was appreciable and prosperous in Sweden so that many
nations adopted as a bulwark of democratic government against the tyranny of executive.

OMBUDSMAN IN INDIA

The Indian Lokpal, Lokayukta and Upalokayukta are the synonymous to the institution
of Ombudsman existing in the Scandinavian Countries. The early 1960s mounting corruption
in public administration set the winds blowing in favour of Ombudsman in India too. The
Administrative Reforms Commission set up in 1966 headed by Murarji Desai, recommended
for the constitution of two tier machinery such as Lokpalat Centre and Lokayuktas in the States.

The Lokpal Bill was for the first time presented during the fourth Lok Sabha in 1968
and it was passed there in 1969, however while it was pending in the Rajya Sabha the LokSabha
was dissolved, resulting the first death of the Bill. The Bill was revived in 1971, 1977, 1985,
1989, 1996, 1998, 2001, 2005, 2008, 2011, 2012 each time after the Bill was introduced in the
house, it was referred to some Committee for improvements, a Joint Committee of Parliament.

There are as many as 18 States where the institution of Lokayukta has been constituted,
beginning with Orissa in 1971. Karnataka government also gives effect by way of enacting the
Lokayukta Act. However the powers, function and jurisdiction of Lokayuktas are not uniform
in the Country.

NEED OF OMBUDSMAN: There are several factors which have led to the introduction of
ombudsman in India. Those are

a. Deep rooted corruption in all public departments

b. Lack of Independence
c. Lack of Transparency and internal accountability
d. Existing devices to combat corruption and checks on officials have not been effective
e. Subject to certain exceptions discretionary powers of administrators fall outside the
judicial purview:
f. Need of proper control over discretionary powers of administrators
g. Judicial control over administrative action is not perfect
h. Failure of legislature to set up a mechanism to redress individual grievances
i. Rigidity and complexity in procedure to resolve complaints and deliver justice
j. Low degree of success in the existing system

DEFECTS INTHEGOVERNMENT LOKPAL BILL

No suo-motu action: Lokpal will have no power to initiate suo-motu action or receive
complaints of corruption from the general public.

No power to receive complaints directly from public:Lokpalwill have no power to receive

complaints of corruption from the general public. It can only probe complaints forwarded by
the Speaker of the LokSabha or the Chairman of the RajyaSabha.

Act only as an advisory body:Lokpal has been proposed to be an advisory body. Lokpal, after
enquiry in any case, will forward its report to the competent authority.

No police powers: Lokpal is restricted to preliminary enquiry. It is not endorsed with any
powers to file a case against the culprit.
CBI and Lokpal will have no connection with each other: Lokpal will have jurisdiction only
on MP’s, ministers and PM. It will not have jurisdiction over the government officers.

Selecting committee consists of political dignitaries: The selection committee consists of

Vice President, PM, Leaders of both houses, Leaders of opposition in Houses, Law Minister
and Home minister. Barring Vice President, all of them are politicians whose corruption,
Lokpal is supposed to investigate

Many public servants exempted from lokpaljurisdiction; Only Group A officers will be
covered under the jurisdiction of lokpal, defence officers and other lower grade officers are
exempted from the jurisdiction of lokpal.

Less punishment:punishment for corruption will be minimum of 6 months and a maximum of

up to 7 years.

No time limitation for completion of investigation:under the government Lokpal Bill there
is no time limitation for completion of investigation and proceedings.

JAN LOKPAL

In order to overcome the defects existing in the lopal bill prepared by the government, some
prominent civil society activists such as ‘ Justice SantoshHegde (former Supreme Court Judge
and former Lokayukta of Karnataka), PrashantBhushan (Supreme Court Lawyer) and
ArvindKejriwal (RTI activist), drafted Janlokpalbill upon the suggestion of many other social
activists such as Retired IPS officer KiranBedi and other known people like Swami Agnivesh,
Sri Sri Ravi Shankar, Anna Hazare and Mallika Sarabhai.

Salient Features of Jan Lokpal Bill

Constitution of two tier machinery:JanLokpal Bill proposes the constitution of one

institution called Lokpalat the central level and Lokayuktain each state to investigate the
corruption complaints against the public officers/servants including politicians.

Special procedure for appointment of Lokpal: the Chair person and members of this
institution shall be appointed by President of India on the recommendation of a selection
committee. Among the total members of the selection committee, at least four members should
have legal background.Furtherthe selection committee would have two senior most Judges of
Supreme Court, two senior most Chief Justice of High Courts, all NobelLaureatesof Indian
origin, last three Magsaysay award winners, Comptroller and Auditor General of India ,Chief
Election Commissioner.

Independent: Like Supreme Court and Election Commission, they will be completely
independent of the governments. No minister or bureaucrat will be able to influence their
investigations.
Confirmation of vast powers: the institution has the powers of search, seizure and
investigation as per Cr.P.C. 1973 and also having all the powers of a civil court while trying
the suit under the C.P.C. 1908.

Speedy disposal of complaints:Investigations in any case will have to be completed in one

year. Trial should be completed in next one year so that the corrupt politician, officer or judge
is sent to jail within two years.

Time bounded duties:the bill proposes the concept of time bound duties for each public work
so that the assigned work can be completed within the scheduled time. Further, if any public
officer negligently does not complete the assigned work within the stipulated time limit he /she
will be penalized.

Transparency and integrity:The entire functioning of Lokpal/ Lokayukta will be completely

transparent. Any complaint against any officer of Lokpal shall be investigated and the officer
dismissed within two months.

Merge all existing anti-corruption agencies: departmental vigilance and anti-corruption

branch of CBI will be merged into Lokpal. Lokpal will have complete powers and machinery
to independently investigate and prosecute any officer, judge or politician.

Protect the whistleblower:It will be the duty of the Lokpal to provide protection to those who
are being victimized for raising their voice against corruption.

Recovers ill wealth from the corrupt person: The loss that a corrupt person caused to the
government will be recovered from corrupt person at the time of conviction.

Protection and execution of lokpal orders: the bill protects the Chairperson and other
members of Lokpalfrom the proceedings if they do any harm while discharging their official
duties. The institution has vast powers of execution. This bill proposes to equip the lokpal with
powers of contempt just as the high courts have under The Contempt of Courts Act 1971.

Severe punishment: the bill proposes in addition to the recovery of ill-wealth, corrupt person
shall be punished with imprisonment not less than 5 years which may be extended up to life
imprisonment.

Wealth of public servants on website: another unique feature of the janlokpalis before the
30thJune of every year submit to the head of that public authority in the form prescribed by
lokpal, a statement of his assets and liabilities and those of the members of his family.

Repeal of CVC Act:The bill further proposes to repeal the Central Vigilance Commission Act
and to transfer all enquiries and investigations and other disciplinary proceedings, pending
before the central vigilance commission to the lokpal.

Extension of jurisdiction:All public servants would be included under the jurisdiction of

lokpal.
 WRITS

Habeas Corpus
Habeas Corpus literally means ‘to have the body of’. Via this writ, the court can cause any
person who has been detained or imprisoned to be physically brought before the court. The
court then examines the reason of his detention and if there is no legal justification of his
detention, he can be set free. Such a writ can be issued in following example cases:
1. When the person is detained and not produced before the magistrate within 24 hours
2. When the person is arrested without any violation of a law.
3. When a person is arrested under a law which is unconstitutional
4. When detention is done to harm the person or is malafide.

The writ of habeas corpus is, however, not issued in the following cases:
(i) Where the person against whom the writ is issued or the person who is detained is
not within the jurisdiction of the Court,
(ii) To secure the release of a person who has been imprisoned by a court of law on a
criminal charge,
(iii) To interfere with a proceeding for contempt by a court of record or by the
Parliament.
Thus, Habeas corpus writ is called bulwark of individual liberty against arbitrary detention. A
general rule of filing the petition is that a person whose right has been infringed must file a
petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a
petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued
against both public authorities as well as individuals.

Mandamus
Mandamus means “we command”. This writ is a command issued by court to a public official,
public body, corporation, inferior court, tribunal or government asking them to perform their
duties which they have refused to perform. Due to this, Mandamus is called a “wakening call”
and it awakes the sleeping authorities to perform their duty. Mandamus thus demands an
activity and sets the authority in action. Mandamus cannot be issued against the following:
● a private individual or private body.
● if the duty in question is discretionary and not mandatory.
● against president or governors of state
● against a working chief justice
● to enforce some kind of private contract.
A petition for writ of mandamus can be filed by any person who seeks a legal duty to be
performed by a person or a body. Such a filing person must have real or special interest in the
subject matter and must have legal right to do so.

Prohibition
The writ of prohibition means that the Supreme Court and High Courts may prohibit the lower
courts such as special tribunals, magistrates, commissions, and other judiciary officers who are
doing something which exceeds to their jurisdiction or acting contrary to the rule of natural
justice. For example if a judicial officer has personal interest in a case, it may hamper the
decision and the course of natural justice. Difference between Mandamus and Prohibition
While Mandamus directs activity, Prohibition directs inactivity. While Mandamus can be
issued against any public official, public body, corporation, inferior court, tribunal or
government; prohibition can be issued only against judicial and quasi-judicial authorities and
NOT against administrative authorities, legislative bodies

Certiorari
Certiorari means to “certify”. It’s a writ that orders to move a suit from an inferior court to
superior court. It is issued by a higher court to a lower court or tribunal either to transfer a case
pending with that to itself or squash its order. This is generally done because superior court
believes that either the inferior court had no jurisdiction or committed an error of law. Thus,
certiorari is a kind of curative writ.

Quo warranto
Quo warranto means “by what warrant”? This writ is issued to enquire into legality of the claim
of a person or public office. It restrains the person or authority to act in an office which he /
she is not entitled to; and thus stops usurpation of public office by anyone. This writ is
applicable to the public offices only and not to private offices.
The conditions necessary for the issue of a writ of quo warranto are as follows:
(i) The office must be public and it must be created by statute or by the Constitution itself;
(ii) The office must be a substantive one and not merely the function or employment of a
servant at the will and during the pleasure of another.
(iii) There has been a contravention of the Constitution or a statute or statutory instrument,
in appointing such a person to that office.
 THE COMMISSION OF INQUIRY ACT, 1952

Before the enactment of Commissions of Inquiry, Act, 1952, the government ordered public
inquiry either by executive notice under the Public Service Inquiries Act, 1850 or by making
add hoc legislation. To meet the ever-growing need for ever-increasing demand for public
inquiries by independent and impartial authority the procedure adopted by the government was
found to be cumbersome and inadequate. Hence the need was felt that a suitable legislation be
brought out on the subject, resulting in the introduction of the Commissions of Inquiry Bill,
1952 in the Parliament. The commissions of Inquiry Bill, 1952 was passed by both the Houses
of Parliament and after being assented by the President of India it became the Commissions of
Inquiry Act, 1952 (60 of 1952)

Object: An act to provide for the appointment of Commissions of Inquiry and for vesting such
Commissions with certain powers.

Extension: It extends to the whole of India, Provided that it shall apply to the State of Jammu
and Kashmir only in so far as it relates to inquiries pertaining to matters relatable to any of
the entries enumerated in List I or List III in the Seventh Schedule to the Constitution as
applicable to that State.

“Appropriate Government” means – (i) The Central Government, in relation to a

Commission appointed by it to make an inquiry into any matter relatable to any of the entries
enumerated in List 1 or List III in the Seventh Schedule to the Constitution , and

(ii) The State Government, in relation to a Commission appointed by it to make an inquiry into
any matter relatable to any of the entries enumerated in List II or List III in the Seventh
Schedule to the Constitution.

Appointment of Commission: The appropriate Government may, if it is of opinion that it is

necessary so to do, and shall, if resolution in this behalf is passed by each House of Parliament
or, as the case may be, the Legislature of the State, by notification in the Official Gazette,
appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter
of public importance and performing such functions and with such time as may be specified in
the notification, and the Commission so appointed shall make the inquiry and perform the
functions accordingly.

Composition: The Commission may consist of one or more members appointed by the
appropriate Government, and where the Commission consists of more than one members, one
of them may be appointed as the Chairman thereof. The appropriate Government may, at any
stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of
a member of the Commission.

Powers of Commission: The Commission shall have the powers of a civil court, while trying
a suit under the Code of Civil Procedure, 1908 in respect of the following matters, namely –
 (a) Summoning and enforcing the attendance of any person from any part of India and
examining him on oath.
(b) Requiring the discovery and production of any document.
(c) Receiving evidence on affidavits
(d) Requisitioning any public record or copy thereof form any court or office
(e) Issuing commissions for the examination of witnesses or documents
(f) Any other matter which may be prescribed

Additional powers of Commission:

(a) The Commission shall have power to require any person, to furnish information on such
points or matters as, in the opinion of the Commission, may be useful for, or relevant
to, the subject-matter of the inquiry.
(b) the Commission may enter any building or place where the Commission has reason to
believe that any books of account or other documents relating to the subject-matter of
the inquiry may be found, and may seize any books of account or documents or take
extracts or copies there from.
(c) The Commission shall be deemed to be a civil court. Any proceeding before the
Commission shall be deemed to be a judicial proceeding.
(d) The Commission may, for the purpose of conducting any investigation pertaining to the
inquiry, utilise the service of any officer or investigation agency of the Central
Government or any State Government.
(e) he Commission may, for the purpose of conducting any inquiry, appoint persons having
special knowledge of any matter connected with the inquiry as assessors, to assist and
advise the Commission in the inquiry.

Commission to cease to exist: If in the opinion of the Government the Commission had
collected sufficient necessary material for an effective and expeditious examination by an
expert officer for making necessary decision(s) and thus, further continuance of the said inquiry
was wholly unnecessary, there was no malice or influence of collateral considerations in the
exercise of its discretionary power by the Government to discontinue the said inquiry; State of
Gujarat v. Consumer & Education Research Centre, AIR 1984.

Procedure to be followed by the Commission: The commission shall, have power to regulate
its own procedure including the fixing of places and times of its sittings and deciding whether
to sit in public or in private.

Protection of action taken in good faith: No suit or other legal proceeding shall lie against
the appropriate Government, the Commission or any member thereof, or any person acting
under the direction either of the appropriate Government or of the Commission in respect of
anything which is in good faith done or intended to be done in pursuance of this Act.

Members, etc., to be public servants: Every member of the Commission and every officer
appointed or authorised by the Commissioner in exercise of functions under this Act shall be
deemed to be a public servant within the meaning of section 21 of the Indian Penal code,
Penalty for acts calculated to bring the Commission: if any person, by words either spoken
or intended to be read, makes or publishes any statement which is calculated to bring the
Commissioner or any member thereof into disrepute, he shall be punishable with simple
imprisonment for a term which may extend to six months, or with fine, or with both.

The High Court may take cognizance of offence under this act for commission of any offence.
No High Court shall take cognizance of an offence under this Act unless the complaint is made
within six months form the date of which the offence is alleged to have been committed.

An appeal shall lie as a matter of right from any judgement of the High Court to the Supreme
Court, both on facts and on law. within a period of thirty days from the date of judgement
appealed from.

The appropriate Government may, by notification in the Official Gazette, make rules to carry
out the purpose of this Act. such rules may provide for all or any of the following matters,
namely:-

(a) The term of office and the conditions of service of the members of the Commission
(b) The manner is which inquires may be held under this Act and the procedure to be
followed by the Commission in respect of the proceedings before it.
(c) The powers of civil court which may be vested in the Commission
(d) The traveling and other expenses payable to assessors appointed under section 5B, and
to person summoned by the Commission to give evidence or to produce documents
before it.
(e) Any other matter which has to be, or may be, prescribed.
Every rule made by the Central Government under this section shall be laid, as soon as may be
after it is made, before each House of Parliament. Every rule made by the State Government
under this section shall be laid, as soon as may be after it is made, before the Legislature.