1. Explain Dicey's concept of 'Rule of Law' in the context of contemporary scenario.

2. Examine the 'Rule against Bias' and its significance with help of case laws.
3. Examine the significance of ‘removal of difficulties’ clause with reference to India.

Ans:

Need for Removal of Difficulty clauses

A 'removal of difficulty' clause empowers the government to make provisions to remove any
difficulty which may arise in putting the law into operation. Such a provision is usually inserted
in a statute that is being enacted for the first time since it may not be possible to anticipate all the
difficulties that may arise in the course of its implementation.

It is also referred to as the Henry VII clause who was then King of England in the 16thcentury
and used the provision as an instrument of a servile Parliament for the purpose of removing
difficulties. In RoD order, power is sometimes conferred on the government to modify the
provisions of the existing statutes for the purpose of removing difficulties. When the legislature
passes an Act, it cannot possibly foresee all the difficulties that may arise in implementing it. The
Executive, therefore, is empowered to make necessary changes to remove such difficulties.

The following passage from the case of Madeva Upendra Sinai v. Union of India throws light
on the inevitable need and importance of RoD provisions:

To keep pace with the rapidly increasing responsibilities of a Welfare State, the legislature has to
turn out a plethora of hurried legislation, the volume of which is often matched with its
complexity. It is nearly impossible to foresee all the circumstances to deal with which a statute is
enacted or to anticipate all the difficulties that might arise in its working due to peculiar local
conditions or even a local law.

This is particularly true for legislation which gives a new dimension to socio-economic activities
of the State or extends [existing laws] to new territories […]. In order to obviate the necessity of
approaching the legislature for removal of every difficulty, howsoever trivial, encountered in the
enforcement of a statute, by going through the time-consuming amendatory process, the
legislature sometimes thinks it expedient to invest the executive with a very limited power to
make minor adaptations and peripheral adjustments in the statute, [to make] implementation
effective, without touching its substance. That is why the “removal of difficulty clause” […]
finds acceptance as a practical necessity, in several Indian statutes of the post-independence era.

4. Elucidate the meaning, nature and growth of 'administrative discretion'. Critically

examine its significance
5. Elucidate 'Conditional Legislation' and compare it with 'Delegated Legislation'?

Ans:

Conditional Legislation

Conditional legislation may also be called contingent legislation. In this type of legislation, a
statute provides powers to the administrative authority to determine when a law should be
applied or when it comes into force. but adds some specifications along with them. These
specifiers are conditions, and when these conditions are fulfilled, the powers of the delegated
authority become activated. Hence, the authority is empowered to determine, based on its own
judgement, whether these conditions are fulfilled or not.

6. Examine, with help of case laws, the control mechanisms that exist for Delegated
Legislation

Reasons for the Growth of Administrative Law

The following factors are responsible for the growth of administrative law:

 There is a radical change in the philosophy of the role played by the state. The negative
policy of maintaining law and order and social welfare is changing. 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 11.
 The judicial system was proved to be an inadequate to decide and settle all types of
disputes. It was slow, costly, inept, complex and formalistic. It was already overburdened
and it was not possible to expect speedy disposal of even very important matters. The
important problems could not be solved by mere literally interpreting the provisions of
some statutes, 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.
 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 laid down by the legislature, they have found to be
defective and inadequate. Therefore, it was necessary to delegate some powers to the
administrative authorities.
 There is scope for experiments in administrative process. Here unlike, in legislation, it is
not necessary to continue a rule until commencement of the next session of the
legislature. Here a rule can be made, tired for some time and if it is defective, can be
altered or modified within a short period. Thus, legislation is rigid in character, while the
administrative process is flexible.
 The administrative authorities can avoid technicalities. Administrative law represents
functional rather than a theoretical and legislative approach. The traditional judiciary is
conservative, rigid and technical. It is impossible for courts to decide cases without
formality and technicality. Administrative tribunals are not bound by rules of evidence
and procedure and they can take a practical view of the matter to decide complex
problems.
 Administrative authorities can take preventive measures. Unlike regular courts of law,
they do not have 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 law.
  Administrative authorities can take effective steps for the enforcement of the aforesaid
preventive measures e.g. suspension, revocation and cancellation of license, destruction
of contaminated articles etc., which are not generally available through regular courts of
law 13.

Difference between Administrative law and Constitutional Law

Administrative Law is subordinate

to the constitutional Law.
Constitutional Law is the
supreme and highest law of the
country.
2. Administrative Law is the
species of Constitution Law. The
Constitutional Law is always
regarded as the genus.
3. Administrative Law deals with
the organs of the state as motion.
Constitutional Law mainly
deals with various organs of a
state.
4. Administrative Law mainly
deals with the various functions of
the state. Constitutional Law
mainly deals with the structure of
the state.
5. Administrative Law doesn't
deal with all branches of law,
rather it details with the powers
and functions of administrative
authorities. Constitutional Law
touches all the branches of
law and gives guidelines with
regard to the general principal
relating to organization and
powers of organs of the state, and
their relations between citizens and
towards the state.
6. Administrative Law does not
deal with the International Law. It
deals exclusively with the
powers and functions of
administrative authorities.
Constitutional Law also gives
guidelines about the intentional
relations.
7. Administrative Law deals with
the powers and functions of
administrative authorities,
including services, public
departments, local authorities and
other statutory bodies
exercising administrative powers,
quasi-judicial powers, etc.
Constitutional Law deals with
the general principal of state
pertaining to all branches.
8. Administrative Law is
concerned with the organization of
the services or the working of
the various government
departments. Constitutional Law
demarcates the constitutional
status of Ministers and public
servants.
9. The administrators have to
follow Constitutional Law first and
next the Administrative
Law. Constitutional Law imposes
certain negative duties on
administrators, if they are
found violating the fundamental
rights of the citizens and etc. It
also imposes certain
positive duties on administrators,
viz, implementation of social
welfare schemes.
10. The administrators should
perform their functions with
utmost obedience to
Constitutional Law.
Administrative Law is just a
subordinate to Constitutional Law.
Constitutional Law has complete
control on the administrative law
and administrators of
the country
Administrative Law is subordinate
to the constitutional Law.
Constitutional Law is the
supreme and highest law of the
country.
2. Administrative Law is the
species of Constitution Law. The
Constitutional Law is always
regarded as the genus.
3. Administrative Law deals with
the organs of the state as motion.
Constitutional Law mainly
deals with various organs of a
state.
4. Administrative Law mainly
deals with the various functions of
the state. Constitutional Law
mainly deals with the structure of
the state.
5. Administrative Law doesn't
deal with all branches of law,
rather it details with the powers
and functions of administrative
authorities. Constitutional Law
touches all the branches of
law and gives guidelines with
regard to the general principal
relating to organization and
powers of organs of the state, and
their relations between citizens and
towards the state.
6. Administrative Law does not
deal with the International Law. It
deals exclusively with the
powers and functions of
administrative authorities.
Constitutional Law also gives
guidelines about the intentional
relations.
7. Administrative Law deals with
the powers and functions of
administrative authorities,
including services, public
departments, local authorities and
other statutory bodies
exercising administrative powers,
quasi-judicial powers, etc.
Constitutional Law deals with
the general principal of state
pertaining to all branches.
8. Administrative Law is
concerned with the organization of
the services or the working of
the various government
departments. Constitutional Law
demarcates the constitutional
status of Ministers and public
servants.
9. The administrators have to
follow Constitutional Law first and
next the Administrative
Law. Constitutional Law imposes
certain negative duties on
administrators, if they are
found violating the fundamental
rights of the citizens and etc. It
also imposes certain
positive duties on administrators,
viz, implementation of social
welfare schemes.
10. The administrators should
perform their functions with
utmost obedience to
Constitutional Law.
Administrative Law is just a
subordinate to Constitutional Law.
Constitutional Law has complete
control on the administrative law
and administrators of
the country
Administrative law Constitutional Law
Is Subordinate to Constitutional Law Supreme law of the country
Species of Constitution Law It is always regarded as the Genus
Deals with organs of the State as motion Deals with various organs of the country
It details with the powers and functions of Touches all the branches of law and gives
administrative authorities guidelines with regard to the general principal
relating to organization and powers of organs
of the state, and their relations between citizens
and towards the state
Deals exclusively with the powers and Gives guidelines about the intentional relations.
functions of administrative authorities.
Should perform their functions with utmost Has complete control on the administrative law
obedience to Constitutional Law and administrators of the country.

Constitutional Law Administrative law

 The ultimate law of any nation-state is Administrative law is ancillary to the
Constitutional law. ultimate law.

Deals with the organs of the ….. and its Deals with the actual functioning of the
structure organs of the State.

It has a wide scope and deals with the powers

It has a narrow scope and only deals with
of the State, general principles of ……ance, and
the powers and functioning of the
the relationship between the citizens and the
………….. bodies.
State.

It is …….. into a single text in countries with a It is not ……... There might be hundreds
written constitution. of thousands of Administrative laws.

Administrative law defines its legal roles

Constitutional law ……….. an Administrative
and limitations. Therefore, it can be seen
body
as the action arm of Constitutional law.

Reasons for growth of Delegated Legislation;

Many aspects or issues are answerable for the extensive growth of the delegated legislation in
current times. This has happened because of the fundamental alterations or amendments,
including the governance of a country from a 'police state' to that of a 'welfare state', as a result
of this change, the purposes and the ambitions of delegated legislation have enlarged.

The following are the aspects or reasons for the development of delegated legislation in India:

 Reduces the Pressure on Parliament:

The area, scope, or horizon of state responsibilities are increasing every day and making it
difficult for the Parliament to make the laws on each and every matter as they are having a lot of
obligations to fulfil and they also have to make regulations on variety of matters. The Parliament
is so much engaged in matters concerning foreign policy and political issues, as a result of which
it is not able to focus well on other matters or issues. So, it only frames the extensive part of the
rule, summarizes the legislation and gives that to the executive or any of it subordinate
authorities to complete their roles and responsibilities efficiently.

 Technicality of the matters:

With the progress and development of the society, things have become more bitter, complex and
technical. So, to understand the technicality of each and every topic, legislature needs the expert
advice or suggestions on the specific matters and issues, who are well aware of even minute
details of that matter. In order to have a, control over such matters immense acquaintance and
understanding is essential. Therefore, legislative power maybe conferred on experts to deal with
technical problems.

 Provides Flexibility:

Modifications or amendments made by the Parliament are quite sluggish and it needs a procedure
that helps to make any kind of laws and this is possible by the concept of delegated legislation,
as the laws can be made with speed and efficiency with the help of the executives and other
subordinate bodies. Another challenge is that, the Parliament cannot predict the future
possibilities, while enacting a law. So, to make this possible the responsibilities are being given
to other subordinates as well. So, it is essential to divide the workload with lower authorities to
ensure the completion of work in a smooth and efficiency manner.

 As a part of an Experiment:

The exercise of delegated legislation empowers the Executive to do an experiment. As every

duty is new for the legislature as well and so, to ensure efficiency it has to come up with such
tactics, to know whether the made legislation is giving proper results or not. This technique or
approach allows for the application of such experience and for execution of bringing in important
changes in the legislations made by the Parliament.
  Emergency Situations:

In all kinds of emergency kind of situation, one should know how to deal with such problems,
rapidly without any place for obstructions and delays. The legislature does not have every skill,
for providing an urgent answer, in such crucial times, to deal with the situation of emergencies.
Delegated legislation one and only way to look after the emergency situations swiftly. Therefore,
at the times of emergency and war, an executive as an organ is provided with a wider scope to
exercise its powers to deal with such circumstances.

 Complex Modern Administration:

The contemporary administration have started dealing with added tasks and duties, when it
worked for ensuring improved and developed environment for the citizens such as ensuring their
employment, health, education, and other professional activities. Therefore, the complexity in the
modern administration and extension in number of states, functions towards the social and
economic spheres has permitted for the establishment of new kinds of legislations and hence, in
this way, it provides wide-ranging powers and controls to varied authorities on various instances
or events.

Case Laws:

D.S. Grewal v.The State of Punjab

Facts:

This case questions the constitutionality of All India Service Act, 1951. The appellant was
appointed to All India Service and posted to the State of Punjab. He held the charge of
Superintendent of Police in various districts but was reverted or returns to the post of Assistant
Superintendent of Police in August 1957 and was posted to Dharamsala in March in the year
1958.
In the same month, he was informed that an action has been taken against him under Rule 5 of
the All India Services (Discipline and Appeal) Rules, 1955. An enquiry committee was set up
against him under the leadership of Shri K. L. Bhudiraja. He then immediately made an
application under Article 226 of the Indian Constitution before the Punjab High Court
challenging the constitutionality of the Act and legality of the enquiry against him. Six
contentions were made by the appellant lawyer.

Judgment:

K.N. Wanchu, Justice of the Supreme Court at that time, dealing with the power of delegated
legislation under Article 312 of the Indian Constitution. As the case has been very serious the
appellant can be removed or compulsorily dismissed from the post by the Central Government
and therefore Central Government has instituted enquiry against him. There is nothing
mentioned in Article 312 of the Indian Constitution that takes away the power of delegation.

The delegation power of India and America is that the Congress doesn't have much power of
delegation but it is different from the English in which the parliament is supreme has an excess
of delegating power.

Henry VIII Clause

The Henry VIII Clause is an expression referring to executive authority. While delegating its
power of law-making to the executive, the legislature generally does not confer any powers on
the executive to amend or modify the Parent Act. However, if such a clause is inserted in the
statute, which vests power in the executive to amend or modify the original Act, it is referred to
as the Henry VIII clause. This clause implies a naked delegation of essential legislative power to
the executive by the legislature. The Statute of Sewers of 1531 contained the original Henry VIII
clause. It conferred on the Commissioner of Sewers powers to make rules which had legislative
powers, to impose taxation rates, and to impose penalties for non-compliance. Later, the Statute
of Proclamations of 1539 permitted the King to issue proclamations that had the force of Act of
Parliament. Both of these were passed during the period of Henry VIII.

India’s stance on the clause

In India, Henry VIII clause is sparingly adopted. It is an instance of excessive delegation and in
the absence of policy guidelines discernible from the Preamble, the Scheme and other provisions
of the Act make the Clause impermissible.

Article 372 of the Indian Constitution enacted the clause which authorised the President to make
such adaptations and modifications, whether by way of appeal or amendment of the laws so as to
bring them in accord with the provisions of the Constitution. However, this power lapsed on 26th
January 1953. The Seventh Amendment revived it under Article 372(A) for one year for
exceptional reasons associated with the implementation of the state’s reorganisation plan.

This clause was also enacted for similar reasons in the States Reorganisation Act, 1956, the
Bombay Reorganisation Act, 1960, and the Punjab Reorganisation Act, 1966 and certain other
laws passed for adjustment of the boundaries of certain states.

The Court has mostly been ambiguous on the application of the clause. For instance, refer to the
following cases:

 In the case of Registrar of Co-operative Societies v. K. Kunjambu (1979), Section 60

of Madras Co-operatives Act, 1932, delegates power to the government to exempt, by a
general or special order, any cooperative society from any of the provisions of this Act,
or may direct that such provisions shall apply to such society with such modifications as
may be specified in the order. It was held that the power given to the Government under
section 60 of the Act is to be exercised so as to advance the policy and objects of the Act,
according to the guidelines enunciated in the preamble and the other provisions of the
Act. Though a Henry VIII Clause, it’s not void on grounds of excessive delegation.
 In Jalan Trading Company v Mill Manzor Union of India, the Supreme Court held
that Henry VIII Clauses are not valid. The Court quashed such a section and this type of
delegation.

Jalan Trading v Mill Mazdoor Union (1966)

In this case, Section 37 of the Payment of Bonus Act was challenged on the grounds that it was a
Henry VIII clause and an example of excessive delegated legislation. The section vested powers
in the Central Government Executive to make amends, consistent with the essence of the Act, for
the removal of doubts and difficulties and such amends could not be subject to judicial scrutiny.

Since the section permitted the Executive to go to the lengths of amending the Parent Act, it was
considered to be a broad Henry VIII Clause.

The Court held the Section invalid on several grounds:

1. It stipulated that by providing that the amended legislation must not be inconsistent
with the Parent Act, does not save it from the vice of the delegation of legislative
authority.

2. Power to remove doubts and difficulties by their own discretion would amount to
exercise of legislative authority and that cannot be delegated to executive authority.

3. Section 37(2) makes the decision of the Executive the final call, making it the sole
judge of judging all the limitations stated above have been abided by or not.

Gammon India v. Union of India (1974)

In this case, Section 34 of the Indian Contract Labour (Regulation and Abolition) Act, 1970 was
challenged on the grounds that it amounted to the excessive delegation. It was an instance of a
narrow Henry VIII Clause because it did not vest in the Central Government the power to amend
the provision of the parent statute on the excuse of removing doubts and difficulties.

The Court, while upholding the validity of Section 34, made a differentiation between the facts
of the case from the case of Jalan Trading, stating that unlike in the former case, Section 34, in
this case, did not:

1. Contain the finality clause.

2. Allow the alterations to be made to the provisions of the Parent Act.

Analysis

The Court in Gammon India partially misread the Jalan Trading judgment when it applied the
ratio of the Jalan Trading case and distinguished it on the basis of it. The Court in Gammon India
Meant that as per the ratio of Jalan Trading Case, the mere existence of the broad Henry VIII
clause does not make the clause invalid, rather, it is only when such clause is coupled with other
aggravating factors such as the condition of finality attached to the broad Henry VIII Clause that
the clause becomes invalid because of being an instance of excessive delegated legislation.

However, a thorough reading of the Jalan Trading verdict would reveal that any delegation to
remove doubts and difficulties or making any alterations is in itself impermissible, and the
presence of the finality clause was merely ‘accentuating’ the invalidity of the section rather being
‘causation’ of such decision. Therefore, it can be concluded from the verdict that the broad
Henry VIII Clause is void.

Bengal Iron Corporation v. Commercial Tax Officer (1993)

In this case, Section 42 of the Andhra Pradesh Act was challenged on the grounds of excessive
delegated legislation. This section provided that when the transition is being made from an old
Act to a new one if difficulty arises, the Executive is given the power to make rules on the basis
of the issue and amends can be made to the Parent Act. However, rules inconsistent with the
Parent Act cannot be made. This implies Section 42 is an example of both broad and narrow
Henry VIII clauses.

The Court upheld the section by making a contrast with the Gammon India and Jalan Trading
judgments. The Court interpreted that since the current section does not have a finality clause
that will make Bengal Iron the sole judge of its actions and since the absence characterisation
was used to uphold Gammon India, Section 42 will be upheld on the basis of not containing such
language.

Analysis
This judgment showcases that the Court read the Gammon India case as if it sought to imply that
it was solely the finality clause that influenced the decision of the court in the Jalan Trading case,
which, as has been stated above, was not the case. Therefore, the court misread the interpretation
and is a fallacious legal interpretation.

Given the interpretation adopted by the court in the Gammon India case and the Bengal Iron case
of the reasoning in the Jalan Trading case, two conclusions can be reached regarding the validity
of the broad Henry VIII clause:

1. Till the time the Supreme Court correctly reinterprets the reasoning in the Jalan
Trading case to hold the broad Henry VIII Clause invalid in India, the decisions in
Gammon India and Bengal Iron prevail because of it being legal.

2. It can be stated that the interpretations of Jalan Trading judgment in Gammon India
and Bengal Trading are merely obiter. In the latter cases, the legality of the broad
Henry VIII Clause was not the issue, but the narrow one.
Adopting the second conclusion, the inference would follow that the broad Henry VIII Clause is
illegal in India.

Judicial Control on Delegated Legislation

Chintaman Rao’s Case (Chintaman Rao v State of Madhya Pradesh): This case dealt with
the prohibition of making bidis (hand-rolled cigarettes) during the agriculture season by a
Deputy Commissioner. The court held that this prohibition was in violation of Article 19(1)(g) of
the Indian Constitution, which guarantees the right to practice any profession, occupation, or
trade. The court’s decision showcases its role in reviewing executive actions and striking them
down if they infringe upon fundamental rights enshrined in the constitution.

Indian Council of Legal Aid & advice v. BCI

A rule was framed by the Bar Council barring the enrolment as advocates of persons who had
completed 45 years of age. The parent Act enables the Bar Council to Law 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.

Air India V. Nergesh Meerza

Rule Against Bias

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act
which leads to unfair activity whether in a conscious or unconscious stage in relation to the party
or a particular case. Therefore, the necessity of this rule is to make the judge impartial and given
judgement on the basis of evidence recorded as per the case.

Type of Bias

 Personal Bias.
 Pecuniary Bias.
 Subject matter Bias.
 Departmental Bias.
 Policy notion Bias.
 Bias on the account of obstinacy.

Personal bias
Personal bias arises from a relation between the party and deciding authority. Which lead the
deciding authority in a doubtful situation to make an unfair activity and give judgement in favour
of his person. Such equations arise due to various forms of personal and professional relations.

In order to challenge the administrative action successfully on the ground of personal bias, it is
necessary to give a reasonable reason for bias.

Supreme Court held that one of the members of the panel of selection committee his brother was
a candidate in the competition but due to this, the whole procedure of selection cannot be
quashed.

Here, to avoid the act of biases at the turn of his brother respective panel member connected with
the candidate can be requested to go out from the panel of the selection committee. So, a fair and
reasonable decision can be made in Ramanand Prasad Singh vs. UOI.

Pecuniary bias

If any of the judicial body has any kind of financial benefit, how so ever small it may be will
lead to administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject matter of a particular
case. Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal
on the ground that the chairman’s wife was a member of Congress party whom the petitioner
defeated.

Departmental bias

The problem or issue of departmental bias is very common in every administrative process and it
is not checked effectively and on every small interval period it will lead to negative concept of
fairness will get vanished in the proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The audience sitting
over there does not expect judges to sit with a blank sheet of paper and give a fair trial and
decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable condition. This
new category emerged from a case where a judge of Calcutta High Court upheld his own
judgement in appeal. A direct violation of the rules of bias is done because no judge can sit in
appeal against in his own case.

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can be condemned or
punished by the court without having a fair opportunity of being heard.

In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of
being heard.

The literal meaning of this rule is that both parties should be given a fair chance to present
themselves with their relevant points and a fair trial should be conducted.

This is an important rule of natural justice and its pure form is not to penalize anyone without
any valid and reasonable ground. Prior notice should be given to a person so he can prepare to
know what all charges are framed against him. It is also known as a rule of fair hearing. The
components of fair hearing are not fixed or rigid in nature. It varies from case to case and
authority to authority.

Red, green and amber light theories of administrative law

When determining the role of judicial control over public administration with an intent to prevent
power abuse and limit administrative discretion, there are various schools of thoughts which
question as to whether the executive actions should be brought under strict judicial control or
executive actions should be independent of judicial control or a mid-way should be adopted
between the two. Therefore, this article aims to explore the three theories of administrative law
which help in understanding all these discourses i.e. the red, green and amber light theories.

Conceptual understanding

 Red light theory

The red light theory is believed to have originated from the laissez-faire political tradition of the
19th century. This tradition held deep-rooted suspicion towards executive power and sought to
minimize the encroachment of the state on the rights (especially property rights) of
individuals. The concept of “legal sovereignty” explained by Dicey well portrays the idea of red
light theory as he maintains that the government must function in accordance with the legal rules
laid down by the Parliament. Thus, under circumstances wherein the government does not act
according to these determined rules, the courts have a power to control it and ensure that it acts
lawfully. The red light theory is closely associated with the principle of ‘self-correcting
democracy’ in which the rule of law remains a prime concept. The law is regarded as an
autonomous and coherent discipline which performs an important control function (‘checks and
balances’).

A major assumption of this theory is that when public bodies or executive authorities exceed
their powers, judicial intervention works as a sanction. This is because bureaucratic and
executive power of the state and its institutions, if unchecked, will threaten the liberty of all
individuals. Thus, judicial control is required in the political framework of a state. The red light
theorists also believe that the judiciary possesses its own standards of independence and fairness
and can be relied upon, in examining the legality of executive action. Hence, it can be used as an
effective mechanism for check and balance in a state system.

These are the various tenets of this theory:

 1. Courts are the primary weapon for protection of the citizen and control of the
executive.

2. The supremacy of law must prevail over politics.

3. The administrative authorities must be kept under judicial control.

4. For judicial control, the general system of adjudication is appropriate.

5. Public law must be oriented towards strengthening individual liberties.

6. The world of law is apolitical, neutral and independent of the world of government,
politics and administration.

7. Administrative law should aim to curb or control the state.

Therefore, the red light theory emphasizes on law as an instrument for the control of power and
protection of individual liberty. It advocates for an interventionist standpoint by the courts to the
review of administrative decisions. As expounded by Dicey, this theory looks to the model of the
‘balanced constitution’ accommodating the judicial control of executive power [14] as subject to
political control by the Parliament through legislation of strict rules and to legal control through
judicial monitoring by the courts.

 Green light theory

As there spread multiple critiques and challenges to the red light theory, an alternative tradition
emanated between the two world wars. This tradition constituted a counter theory to the red light
theory termed as the “green light theory.” This theory maintains that the use of executive power
to provide services for the benefit of the community is entirely legitimate. Thus, the function of
the courts in checking executive action is a questionable activity. However, it does not favor
unrestricted or arbitrary action of the state.

The Green light theory, also perceived as functionalist theory, holds a positive outlook towards
the state. It believes that the government is congenial and it cannot be suspected of committing
unlawful actions. The green light theory thus emphasizes on how it is important for the
administrative law to facilitate government action rather than intervening in it through judicial or
political control. It suggests how law can be used as an enabling mechanism so that it acts as a
weapon to the administrative bodies.

Being driven by the utilitarian theory associated with Jeremy Bentham and John Stuart Mill, this
theory asserts that the greatest good for the greatest number in a state can be attained by
encouraging state contribution with lesser control or intervention. It holds that collective goals of
the society can be achieved through the democratic framework. Hence, this theory does not aim
to derogate individual rights or refute the core values and norms of a democratic society. This
alludes towards a proposition that the collective (public) goals can be met by granting wide
powers to the Executive and making it independent of judicial restrictions.

These are the various tenets of this theory:

1. Law is merely a matter of political discussion. Thus, law is not superior to

administration or cannot prevail over administration.

2. Public administration is not a necessary evil but a good element of the state.

3. Administrative law should not only focus towards prohibiting negative practices of the
government. It should also work on facilitating the administration and sound
administrative practices.

4. For encouraging the administration, adjudication based on legal rules is not the sole
appropriate idea.

5. There can be other alternatives to courts.

Therefore, the main concern of green light theory is to reduce the influence of courts over
administration because the courts with their legal values are considered as a hurdle to
administrative progress. The green light prefers democratic form of accountability. Based on
these assumptions, green light theorists assent in facilitating the administration through
prevention of any judicial or legal control over executive actions.

 Amber light theory

While the red and green light theories hold two different standpoints in administrative law, the
amber light theory tends to bring a point of consensus between the two. The amber light theory
maintains that administrative law should apply the positive elements of both the theories. This
theory identifies the essence of both “fire-watching” as well as “fire-fighting.” The
administrative law can perform “fire-watching” by setting good standards of administrative
conduct and “fire-fighting” by nullifying erroneous administrative actions through court
pronouncements. The amber light theorists believe that there must be a balance between both
external as well as internal controlling mechanisms for effective public administration. The
amber element between the two theories has somewhere been realized by green light theorists
too. As recognized by Harlow and Rawlings, green light theory does not wish to suggest that it
favors unrestricted or arbitrary action by the state. In fact, it doesn’t rebut the rigidity of red light
theory to some extent.

These are the various tenets of this theory:

1. Law is both discrete from and superior to politics.

2. The state can successfully be limited by law although that law should properly allow
for the administration to enjoy a degree albeit controlled degree of discretionary
authority.

3. The best way of controlling the state is through the judicial articulation and
enforcement of broad principles of legality.

4. The goal of this theory is to safeguard a particular vision of human rights.

In this way, the amber light theory is a synthesis which combines the necessity for some control
over administrative decisions with concern for setting good standards of administrative conduct,
effective decision-taking, accountability, and human rights. It has a close association with both
theories however it does not support the existence of any one theory in isolation. It acknowledges
the tenets of both the theories and tries to reconcile between the two.

Rule against Bias

Nemo judex in causa sua: This Latin principle means that no person should be a judge in his own
case, and no one should be allowed to judge any matter while having personal bias.

In Mineral Development Corporation Ltd. Vs State of Bihar, the petitioner held a mining
lease for 99 years which was quashed by the government because of the violations committed by
the petitioner under sections 10, 12 and 14 of Mines Act. The petitioner here convinced the court
that there was personal bias by the minister who had quashed the license as he was opposed by
the petitioner in general elections a few years before. The Supreme Court found the allegation to
be true and the order was revoked.

A. K. Kraipak vs Union Of India

Fact

 A petition was brought by some gazetted officers serving in the Forest department of
J&K to the Indian Forest. Regulation 5 deals with the preparation of the list of suitable
candidates for the post of ex-officio chairman of the selection board. The petition was
dismissed on the grounds that two persons senior to him were superseded.
 The UPSC has ordered an investigation into the publication of an impugned list of
selected officers, with Naquishbund’s name at the top of the list. He was also one of the
candidates vying for a position in the All India Forest Service.
 The petitioners argued that the process violated the rules of natural justice. The
petitioners argued that the selection board’s power was not quasi-judicial, but rather
administrative.
  UPSC found that the board’s sole responsibility was to select officers who, in their
opinion, were suitable for the Forest Service. The petitioners’ grievances are without
merit.
 The petitioners claimed that one member of the board was biased against some of the
petitioners and should not have been selected.

Issues

Whether principles of natural justice applied to the proceedings in the present case ?

 Whether there is a line between quasi-judicial and administrative actions, as well as the
applicability of natural justice rules to administrative actions or not.
 Assuming that the current proceedings are administrative in nature, are the principles of
natural justice applicable to administrative proceedings?
 Is there a violation of such natural justice principles?
 Is there any justification for deferring the selection of all officers?
 Whether there was any basis for the petitioners’ grievances or not ?

Legal Reasoning

Natural justice rules apply in areas not covered by any validly enacted law, i.e. they supplement
rather than replace the law of the land. An unjust decision in an administrative inquiry may have
a more far-reaching effect than a decision in a quasi-judicial inquiry.

Inquiries must be conducted in good faith and without bias, and not arbitrarily or unreasonably.
When a court receives a complaint alleging that a natural justice principle has been violated, the
court must determine whether the violation was required for a just decision on the facts of the
case.

The Acting Chief Conservator was biased in his decision to appoint a successor to the original
conservatory. The other members of the Board were unaware that the superseded conservator’s
appeal was pending before the State Government at the time of selection, so had no reason to
doubt his judgment.
Judgment

The court ruled that the Selection Committee’s decisions violated natural justice principles
because there was a real possibility of bias because the mere presence of the candidate on the
Selection Board could influence the judgment of other members.

The court determined that the Selection Board’s power was administrative in nature and tested
the selection’s validity on that basis.

Judicial Obstinacy

In the case of A.U. Kureshi v. High Court of Gujarat (2009) 11 SCC 84, a judicial officer (the
appellant) was dismissed from service after being found guilty in a disciplinary inquiry. The
appellant had previously acquitted an accused under the Gambling Act and returned the seized
money. A complaint was later filed against the appellant, leading to a disciplinary inquiry. The
High Court recommended the appellant’s dismissal based on the suggestion of the Disciplinary
Committee.

The Supreme Court held that a judge who was part of the Disciplinary Committee should not
have decided the matter on the judicial side. It was improper for a member of the Disciplinary
Committee to adjudicate on a challenge against the same dismissal order while acting in a purely
judicial capacity.

The word „Obstinacy‟ is derived from Latin obstinātus, which means to set one‟s mind firmly
upon something. It basically denotes irrational and uncompromising stubbornness, and the
deciding officer would not accept “no” as a response. This new type of prejudice was uncovered
in the State of West Bengal v. Shivananda Pathak case. It may seem an absurd connotation to
declare a judge flawless, but the expected level of fairness at that position should never be
conceded. When a person seeks remedy from one hierarchy, he expects a changed state of
judicial minds in the subsequent phase. The following aspects of judicial obstinacy enshrined
under the instant case are:

i. Understanding Judicial Obstinacy as a form of Bias

A pre-conceived view, pre-disposition, or pre-determination to decide a case
or an issue in a specific way, to the point that such pre-disposition does not
leave the mind open to conviction, can be classified as bias.9 It is, in reality, a
mental state that sways decisions and renders the judge incapable of
exercising impartiality in a particular case. Thus, we know there are different
types of bias like pecuniary, professional, departmental etc. but our major
concern is with judicial obstinacy as a form of bias.
ii. How to determine Judicial Obstinacy?
“That Judge may have his occasion to reiterate his dogmatic views on a
particular question of common law or constitutional law in some other case
but not in the same case. If it is done, it would be exhibitive of his bias in his
own favour to satisfy his egoistic judicial obstinacy.”10 If a decision is
overruled by a higher court, judicial discipline requires that the Judge submit
to the adverse ruling in its entirety. He cannot rewrite the overruled decision
in the same procedures or in collateral actions involving the same parties.
Even if it was a decision on a pure question of

In the case of State of West Bengal v. Shivanand Pathak, a writ of Mandamus was filed by the
petitioner directing the Government to Promote Him. A single judge allowed the petition
orfering 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 term of judgement of the single judge. It was dismissed by the sigle judge. The
order was challenged in appeal which was heard by division Bench to which one member was a
judge who had allowed the earlier petition. The appeal was allowed and certain feliefs were
granted. The state approached the Supreme Court. Allowing the appeal and setting aside the
order the Supreme Court described the case of a new form of Bias (Judicial Obstinancy). It said
that if judgment of a judge is set aside by the superior court, the Judge must submit to the
judgment. He cannot rewrite overruled judgment in the same or in collateral proceedings. The
Judgment of the higher court binds not only the parties to the proceedings but also to the Judge
who rendered it.