Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof.

, BV YCLC Karad

SUBJECT NAME: ADMINISTRATIVE LAW

DSC- 403 – ADMINISTRATIVE LAW – (PAPER - III)
SYLLABUS
UNIT – I: EVOLUTION, NATURE AND SCOPE OF ADMINISTRATIVE
LAW:
1.1Evolution, Definitions and scope of Administrative Law
1.2 Role of Modern Welfare State – From Laissez faire to welfare State
1.3 Relationship between Constitutional Law and Administrative Law
1.4 Reasons for growth of Administrative Law
1.5 Doctrine of Separation of Powers
1.6 Doctrine of Rule of Law
UNIT – II: LEGISLATIVE POWERS OF ADMINISTRATION:
2.1 Meaning of and Necessity for Delegated Legislation
2.2 Functions which may be delegated (Permissible Delegation)
2.3 Functions which may not be delegated (Impermissible Delegation)
2.4 Legislative control of delegated legislation
2.5 Judicial control of delegated legislation
UNIT – III: JUDICIAL POWERS OF ADMINISTRATION
3.1 Need for devolution of adjudicatory authority on Administration
3.2 Tribunals – Meaning, Nature, Constitution, Jurisdiction and Procedure
3.3 Natural Justice –Meaning, Nature, content etc.
• Rule Against Bias – Types of Bias
• Right of Fair Hearing- Components of Fair Hearing
3.4 Exceptions to natural justice
3.5 Effect of violation of natural justice
UNIT – IV: JUDICIAL CONTROL OF ADMINISTRATIVE ACTION
4.1. Administrative actions- meaning and classification
4.2. Public law review- Prerogative writs – remedies
4.3. Grounds of Writ jurisdiction and judicial review
• Illegality
• Irrationality
• Procedural impropriety
• Unreasonableness
4.4. Conditions for exercising writ jurisdiction
 Exhaustion of administrative remedies
 Alternative remedy
 Laches
 Res Judicata
4.5 Private law review-remedies
• Injunction
• Declaration
• Suit for damages

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

• Specific performance and Civil Suits for compensation

• Statutory appeals
4.6. Public interest litigations for enforcement of public duty
UNIT – V: JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION
5.1 Meaning and Need for administrative discretion
5.2 Judicial Control of administrative discretion
 Failure to exercise discretion
 Abuse of discretion
5.3. Doctrine of Proportionality
5.4. Doctrine of Legitimate Expectation
5.5. Exclusion of Judicial Review
UNIT – VI: LIABILITY OF THE STATE
6.1 Sovereign and Non-Sovereign Function
6.2 Liability of government in Contracts
6.3 Liability of State in Torts
6.4 Doctrine of Estoppel and Waiver
6.5 Doctrine of Public Accountability
6.6 Government’s privileges in legal proceedings
UNIT – VII: SETTLEMENT OF DISPUTES AND GRIEVANCE REDRESSAL
PROCEDURES:
7.1 Informal methods of settlement of disputes- Conciliation and mediation etc
7.2 Commission of Enquiry- The Commissions of Inquiry Act, 1952
7.3 Ombudsman in India - The Lokpal And Lokayuktas Act, 2013
7.4 Central Vigilance Commission- Central Vigilance Commission Act 2003
7.5 The Whistle Blowers Protection Act, 2014
UNIT – VIII: RIGHT TO INFORMATION:
8.1 Official secrets Act- 1923
8.2 Right to Information Act, 2005-Salient features of the Act
8.3 Citizen charter - obligations of Public Authorities
8.4 Hurdles in the implementation of the Act

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

UNIT – I: EVOLUTION, NATURE AND SCOPE OF ADMINISTRATIVE

LAW:
1.1Evolution, Definitions and scope of Administrative Law
1.2 Role of Modern Welfare State – From Laissez faire to welfare State
1.3 Relationship between Constitutional Law and Administrative Law
1.4 Reasons for growth of Administrative Law
1.5 Doctrine of Separation of Powers
1.6 Doctrine of Rule of Law
Broad Questions
1. Explain the term ‘Rule of Law’ advocated by Prof. A.V. Dicey. How it is
applicable under Indian scenario?
2. Define ‘Administrative Law’. Describe the reasons for growth of
administrative law.
3. write detail note on evolution, definition and scope of Administrative Law.
4. Write note on – a) Rule of law b) Separation of Powers
Short Notes
1. Rule of law
2. Separation of Powers
3. Role of modern welfare state
4. Relationship between Administrative Law and Constitutional Law

UNIT – II: LEGISLATIVE POWERS OF ADMINISTRATION:

2.1 Meaning of and Necessity for Delegated Legislation
2.2 Functions which may be delegated (Permissible Delegation)
2.3 Functions which may not be delegated (Impermissible Delegation)
2.4 Legislative control of delegated legislation
2.5 Judicial control of delegated legislation

Broad Questions
1. Define ‘Delegated Legislation’. Explain the judicial control exercised on
delegated legislation.
2. Define ‘Delegated Legislation’. Describe the necessity of ‘Delegated
Legislation’
3. Define ‘Delegated Legislation’. Explain the legislative control exercised on
delegated legislation.
4. Define ‘Delegated Legislation’. And write detail note on functions which may
be delegated.
5. Define ‘Delegated Legislation’. And write detail note on functions which may
not be delegated.
6. Explain the concept of ‘Delegated Legislation’? Supply your answer with
reference to Judicial Control on Delegated Legislation?
Short Note

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

1. Delegated Legislation

UNIT – III: JUDICIAL POWERS OF ADMINISTRATION

3.1 Need for devolution of adjudicatory authority on Administration
3.2 Tribunals – Meaning, Nature, Constitution, Jurisdiction and Procedure
3.3 Natural Justice –Meaning, Nature, content etc.
• Rule Against Bias – Types of Bias
• Right of Fair Hearing- Components of Fair Hearing
3.4 Exceptions to natural justice
3.5 Effect of violation of natural justice

Broad Questions
1. Write a detailed note on significance of natural justice principles in judicial and
Quasi- Judicial proceedings in the light of landmark judicial decisions.
2. Describe in brief ‘Principle of Natural Justice’. Elaborate Effect of violation of
Natural Justice.
3. Discuss the importance of the principles and Exceptions of natural justice.
4. Explain the maxim, “no man should be condemned unheard”
5. Explain nature and scope of “Administrative Tribunals”.
6. Write in Detail-Rule Against Bias – Types of Bias.
7. What is the meaning of Administrative Discretion and what are the various
limitations on Administrative Discretion?
8. Right of Fair Hearing- Components of Fair Hearing
Short Notes
1. Bias
2. Speaking Order
3. Audi Alteram Partem
4. Reasoned Decision
5. No man shall be judge in his own cause
6. No man shall be condemned unheard

UNIT – IV: JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

4.1. Administrative actions- meaning and classification
4.2. Public law review- Prerogative writs – remedies
4.3. Grounds of Writ jurisdiction and judicial review
• Illegality
• Irrationality
• Procedural impropriety
• Unreasonableness
4.4. Conditions for exercising writ jurisdiction
 Exhaustion of administrative remedies
 Alternative remedy
 Laches
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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

 Res Judicata
4.5 Private law review-remedies
• Injunction
• Declaration
• Suit for damages
• Specific performance and Civil Suits for compensation
• Statutory appeals
4.6. Public interest litigations for enforcement of public duty

Broad Questions
1. Write an exhaustive note on grounds of Judicial control of administrative
Action.
2. What is ‘Administrative Action’? Explain various judicial controls exercised
on administrative Action.
3. Explain Various grounds of Writ jurisdiction with judicial review.
4. What are the Conditions for exercising writ jurisdiction under Judicial control
of Administrative Action?
5. Public interest litigation has become an easier media of judicial Redressal,
Critically Examine.
Short Notes
1. Writs and PIL
2. Laches
3. Res Judicata
4. Unreasonableness
5. Injunction
6. Public interest litigation

UNIT – V: JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

5.1 Meaning and Need for administrative discretion
5.2 Judicial Control of administrative discretion
 Failure to exercise discretion
 Abuse of discretion
5.3. Doctrine of Proportionality
5.4. Doctrine of Legitimate Expectation
5.5. Exclusion of Judicial Review

Broad Questions
1. Discuss the various grounds available for judicial review of Administrative
Discretion. Explain your answer with judicial decisions.
2. Doctrine of Proportionality in administrative law write in detail.
3. Explain the Doctrine of Legitimate Expectation in administrative law.
Short Notes
1. Need for administrative discretion
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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

2. Failure to exercise discretion

UNIT – VI: LIABILITY OF THE STATE

6.1 Sovereign and Non-Sovereign Function
6.2 Liability of government in Contracts
6.3 Liability of State in Torts
6.4 Doctrine of Estoppel and Waiver
6.5 Doctrine of Public Accountability
6.6 Government’s privileges in legal proceedings

Broad Questions
1. Explain the Sovereign and Non- sovereign Functions of State.
2. Write a detailed note on Contractual liability of Government.
3. Explain the Doctrine of Estoppel and Waiver in detail.
4. Describe the Doctrine of Public Accountability in India
5. What are the Government’s Privileges in legal proceeding in India?
Short Notes
1. Liability of State in Torts
2. Doctrine of Public accountability of state

UNIT – VII: SETTLEMENT OF DISPUTES AND GRIEVANCE REDRESSAL

PROCEDURES:
7.1 Informal methods of settlement of disputes- Conciliation and mediation etc
7.2 Commission of Enquiry- The Commissions of Inquiry Act, 1952
7.3 Ombudsman in India - The Lokpal and Lokayuktas Act, 2013
7.4 Central Vigilance Commission- Central Vigilance Commission Act 2003
7.5 The Whistle Blowers Protection Act, 2014

Broad Questions
1. Write a detailed note on informal methods of settlement of disputes
2. Explain in detail the salient features of Commissions of Inquiry Act 1952
3. Explain in detail the salient features of Lokpal and Lokayuktas Act 2013
4. Explain in detail the salient features of Central Vigilance Commission Act
2003
5. Write an exhaustive note on Whistle Blowers Protection Act, 2014
Short Notes
1. Advantages of Conciliation and Mediation,
2. Powers of commission under Commissions of Inquiry Act 1952
3. Jurisdiction of Lokpal
4. Function and Powers of Central vigilance Commission

UNIT – VIII: RIGHT TO INFORMATION:

8.1 Official secrets Act- 1923

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

8.2 Right to Information Act, 2005-Salient features of the Act

8.3 Citizen charter - obligations of Public Authorities
8.4 Hurdles in the implementation of the Act

Broad Questions
1. Write down the Salient features of Right to Information Act, 2005.
2. Explain in detail request for obtaining information, disposal of request &
exemption from disclosure of information.
3. Issues and Constraints in the implementation of the Right to Information Act,
2005.
4. What is information? Explain the procedure to obtain information and disposal
of information under the Right to Information Act,2005.
5. Powers and functions of the information commissions, appeal and penalties

Short Notes
1. Provisions relating to protection of persons making disclosure
2. Salient features of the Official Secrets Act- 1923.
3. Prosecution and Penalties under Official secrets Act- 1923.
4. State Information Commission.
5. Designation of Public Information Officers.

UNIT – I: EVOLUTION, NATURE AND SCOPE OF ADMINISTRATIVE

LAW:
1.1 Evolution, Definitions and scope of Administrative Law
1.2 Role of Modern Welfare State – From Laissez faire to welfare State
1.3 Relationship between Constitutional Law and Administrative Law
1.4 Reasons for growth of Administrative Law
1.5 Doctrine of Separation of Powers
1.6 Doctrine of Rule of Law

Broad Questions
1. Explain the term ‘Rule of Law’ advocated by Prof. A.V. Dicey. How it is
applicable under Indian scenario?
2. Define ‘Administrative Law’. Describe the reasons for growth of
administrative law.
3. write detail note on evolution, definition and scope of Administrative Law.
4. Write note on – a) Rule of law b) Separation of Powers

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

Short Notes
1. Rule of law
2. Separation of Powers
3. Role of modern welfare state
4. Relationship between Administrative Law and Constitutional Law

Evolution, Definitions and scope of Administrative Law

Introduction
Administrative law is the body of law that governs the administration and regulation
of government agencies (both federal and state).
Administrative law is part of the branch of law commonly referred to as public law. It
is the law which regulates the relationship between the citizen and the state.

Meaning
Administrative law is the body of law that governs the activities of administrative
agencies of government. Government agency action can include rule making,
adjudication, or the enforcement of a specific regulatory agenda.

Administrative law is the law that governs the administrative actions. It determines the
organization and power structure of administrative and quasi-judicial authorities to
enforce the law.

Definition

According to K.C. Devis, Administrative law is a law which is related to powers and
procedures of administrative agencies, including specially the law related to judicial
review of administrative actions.

According to Ivor Jennings, Administrative law is relating to the administration

which helps in the determination of the organization, powers and duties of the
administrative authorities.

According to Austin, Administrative law is to determine the ends to and the modes in
which the sovereign powers shall be exercised. It shall be directly or by the
subordinates.

According to Prof. H.W.R. Wade, Administrative law is the law which controls the
powers of the government.

Nature of Administrative law

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

• Administrative law is the branch of public law which defines the relation
between individuals and state. But it is not a law in a true sense like other laws
such as property law or labor law.
• It is also not like private law which deals with relations of individual inter se.
• It is a law to administer the administrative authorities and check them from
making any arbitrary decisions.
• Administrative law deals with the organization, powers and duties of the
administrative authorities and also the procedure followed by the officials
while exercising the powers.
• Administrative law is limited to the law which limits the power of
administrative authorities while exercising the powers.
• It also provides remedies in the favor of the public when the rights of the
public encroached.

Scope of Administrative law

Scope means an area of study or the variety of subjects that are being discussed or
considered.
• As administrative law is almost judge-made law so it changes according to
societal needs but in the guidance of the basic principles so the scope of this
law is wider in comparison to other laws.
• Administrative law determines the powers and duties of the organization and
the administrative authorities.
• The scope of administrative law is wide enough because, with the requirement
of time, Administrative Law incorporates and culls out new rules and
regulations.
• The concept of administrative law is founded on the following:-
1. Principles of natural justice and for rulemaking
2. Notion of the Rule of law
3. Law conferred power to administration as per Article 13 of the
Indian Constitution
4. Accountability of powers, no power is absolute or uncontrolled
5. There should be a reasonable restriction on the regulations of such
powers
6. The power of the court to issues writs
7. Opinions of public and mass media.

Evolution and the Growth of Administrative Law-

ENGLAND
In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of administrative
law. Hence, the numerous statutory discretionary powers given to the executives and

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

administrative authorities and control exercised over them were all disregarded to be
able to form a separate branch of law by the legal thinkers.
Until the 20th Century, Administrative law was not accepted as a separate branch of
law. It was only later that the existence of administrative law came to be recognised.
The Lord Donoughmore Committee, in 1929, recommended for better publication and
control of subordinate legislation. The principle, King can do no wrong, was abolished
and the scope of administrative law expanded by virtue of the Crown Proceeding Act in
1947 which allowed initiating civil proceedings against the Crown as against any private
person.
In 1958, Tribunals and Inquiries Act was passed for better control and supervision of
Administrative Decisions.
Breen v Amalgamated Engineering Union [1971] 2 QB 175 was the first case wherein
the existence of administrative law in the United Kingdom was declared.

UNITED STATES OF AMERICA

In the United States of America, the existence of administrative law and its growth was
ignored until it grew up to become the fourth branch of the State. By then many legal
scholars like Frank Goodnow and Ernst Freund had already authored a few books on
administrative law.
It was in 1933 that a special committee was appointed to determine how judicial control
over administrative agencies could be exercised. Thereafter, in 1946 The Administrative
Procedure Act was passed which provided for judicial control over administrative
actions.

INDIA
The Mauryans and the Guptas of ancient India had a centralized administrative system.
King Shivaji was having his ‘Ashta-Pradhan Mandal’. He was the first known king who
had decentralized administrative system.
It was with the coming of the British that administrative law in India went through a few
changes. Legislations regulating administrative actions were passed in British India.
After independence, India adopted to become a welfare state, which henceforth
increased the state activities. As the activities and powers of the Government and
administrative authorities increased so did the need for ‘Rule of Law’ and ‘Judicial
Review of State actions.

Reasons for growth of administrative law.

• The concept of a welfare state

As the States changed their nature from laissez-faire to that of a welfare state,
government activities increased and thus the need to regulate the same. Thus, this branch
of law developed.

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

• The inadequacy of legislature

The legislature has no time to legislate upon the day-to-day ever-changing needs of the
society. Even if it does, the lengthy and time-taking legislating procedure would render
the rule so legislated of no use as the needs would have changed by the time the rule is
implemented.
Thus, the executive is given the power to legislate and use its discretionary powers.
Consequently, when powers are given there arises a need to regulate the same.

• The inefficiency of Judiciary

The judicial procedure of adjudicating matters is very slow, costly complex and formal.
Furthermore, there are so many cases already lined up that speedy disposal of suites is
not possible. Hence, the need for tribunals arose.

• Scope for the experiment

As administrative law is not a codified law there is a scope of modifying it as per the
requirement of the State machinery. Hence, it is more flexible. The rigid legislating
procedures need not be followed again and again.

Role of Modern Welfare State – From Laissez faire to welfare State

Role of Modern Welfare State

A state is a political division of a body of people that occupies a territory defined by
frontiers. The state is sovereign in its territory (also referred to as jurisdiction) and has
the authority to enforce a system of rules over the people living inside it.
Role of the State is the concept associated with the functions of the ‘State’ to be
discharged being the political institution of prominence. These changing roles of the
state is the outcome of ‘social contract theory’.
The evolution of administrative law goes in a parallel with the progressive stage and
transformation from the ‘police state’ to the ‘welfare state.’ Term ‘State’ is an evolution
of natural law theory and analytical positivism and of recent origin.

Police state
When the state assumes its functions are limited only to the protection of life and
property of people from external aggression and war.
Police state is the country in which the government has the strict controls. State resorts
to the repressive social and economic measures to control the life and political rights of
the population.
A police state typically exhibits elements of totalitarianism and social control, and law
and the exercise of political power by the executive is usually little or no distinction.
A police state experience restrictions on their mobility inhabitants, and their
independence or expressing political or other views, which are subject to police
monitoring or enforcement contacts.

Laissez faire State

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

The term laissez-faire means, in French, “allow to do.”

Laissez-faire is a policy of minimum governmental interference in the economic affairs
of individuals and society. It is the attitude where a person or State letting things happen
without getting involved.
The doctrine of laissez-faire is usually associated with the economists known as
Physiocrats, who flourished in France from about 1756 to 1778.

Welfare state
Owing to the demerits and defects of laissez-faire state, it become inevitable for the state
to assume its role towards the development and welfare of the people. It was considered
that the role of the state shall not be limited to the protection of life and property nor it
shall only ignore the social realities.
Due to the laissez-faire notion, the rich become richer and poor become poorer. This
increased the social discrimination at significant level. It resulted in to Socialism led by
Marx. It compelled the State to devote their machinery towards social justice.

Role of Welfare State

The aim of a modern welfare state is to protect and promote the social and economic
welfare of the people.

Principles of equality of opportunity and equitable distribution of wealth, etc., are

considered to be some of the most important roles of a modern welfare government.

A welfare state is a government “of the State to protect and promote the economic and
social welfare of its citizens is a core role. It is equality of opportunity, equitable
distribution of wealth, and those who are unable to avail themselves of a better life for
at least based on the principle of the responsibility for the public.
Welfare state is financed through tax redistribution and often “mixed economy” is
known as a type such as taxation for people with higher incomes typically includes a
large income tax, called a progressive tax.

Characteristics of a modern ‘welfare state’

There are some characteristics which led to build a ‘welfare state’ such as:
• A vast increase in the range and detail of government regulation of privately
owned economic enterprise,
• The direct furnishing of services by government to individual members of the
community, and
• Increased government ownership and operation of industries and businesses.

The traditional theory of ‘laissez faire’ has been change in the role of government and
thereby the transformation of the ‘police state’ to the ‘welfare state’ has necessitated the
need for conferring more power on the administration and simultaneously the need for
controlling this power.

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

The welfare state in effectively carrying out these vast functions to attain socio-
economic justice, inevitability will come in direct relationship and encounter with the
private citizens.

Relationship between Constitutional Law and Administrative Law

Difference between Administrative law and Constitutional law.

There are significant differences between Administrative law and Constitutional law.

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

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

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

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

Doctrine of Separation of Powers

Meaning- Democratic government is characterised by the separation of powers. This
system divides the state into three branches – the legislative, executive and judicial
branch – and gives each the power to discharge their functions and duties.
Concept- The term “separation of powers” or “trias –politica “ was initiated by Charles
de Montesquieu. For the very first time, it was accepted by Greece and then it was
widespread use by the Roman Republic as the Constitution of the Roman Republic

Significance of doctrine of SoP

The separation of powers is important because it provides a vital system of ‘checks and
balances’:
Firstly, it ensures that the different branches control each other. This is intended to make
them accountable to each other – these are the ‘checks’.
Secondly, it divides power between the different branches of government. This balance
aims to ensure that no individual or group of people in government is ‘all powerful’.

Purposes of the doctrine of SoP

Power is shared and not concentrated in one branch. The main purpose of the separation
of powers is therefore to prevent the abuse of power.

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

Doctrine of Separation of Power in Indian Constitution

The doctrine of separation of powers is a part of the basic structure of the Constitution,
although not specifically mentioned. The legislature cannot pass a law violating this
principle. The functions of the three organs are specifically mentioned in the
Constitution.
Let us take a look at some of the articles of the Constitution which suggest separation
of powers.
Article 50: This article puts an obligation over the State to separate the judiciary from
the executive. But, since this falls under the Directive Principles of State Policy, it is not
enforceable.
Article 123: The President, being the executive head of the country, is empowered to
exercise legislative powers (Promulgate ordinances) in certain conditions.
Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of
a judge of the Supreme Court or High Court. They can do so only in case of
impeachment.
Article 361: The President and Governors enjoy immunity from court proceedings.

The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that the
Indian Constitution has not indeed recognised the doctrine of separation of powers in its
absolute rigidity.

In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian Constitution
there is a separation of powers in a broad sense only. A rigid separation of powers as
under the American Constitution or under the Australian Constitution does not apply to
India.

Doctrine of Rule of Law

Meaning- The doctrine of rule of law has been described as supremacy of the law. This
means that where there is rule of law no person can be said to be above the law, even
the functions and actions of the executive organ of the state shall be within the ambit of
the law.
History - The Rule of Law was first originated by Sir Edward Coke, the Chief Justice
in England at the time of King James I. Coke was the first person to criticise the maxims
of Divine Concept. He strongly believed that the King should also be under the Rule of
Law. The Rule of Law doctrine was later developed by A.V. Dicey.
In 1885, Professor A.V Dicey developed this concept of Coke and propounded three
principles or postulates of the rule of law in his classic book ‘Law and the
Constitution.’
According to Professor A.V Dicey, for achieving supremacy of law three principles of
postulates must be followed which are as follows:

1. Supremacy of law,
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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

2. Equality before law and

3. Predominance of Legal Spirit

1. Supremacy of law
As per the first postulate, rule of law refers to the lacking of arbitrariness or wide
discretionary power. In order to understand it simply, every man should be governed
by law.
2. Equality before law
According to the second principle of Dicey, equality before law and equal subjection
of all classes to the ordinary law of land to be administered by the ordinary law courts
3. Predominance of Legal Spirit
Rule of law as established by Dicey requires that every action of the administration must
be backed and done in accordance with law. In modern age, the concept of rule of law
opposes the practice of conferring discretionary powers upon the government and also
ensures that every man is bound by the ordinary laws of the land.
Absence of arbitrary power is the first essential of Rule of Law upon which our whole
constitutional system is based.
Governance must be by rule, and not arbitrary, vague and fanciful.
Rule of Law in India
Indian Constitution has very well adopted the doctrine of rule of law. Article 14 to 18
guarantees equality and non-discrimination.
Under our Constitution, the Rule of Law pervades over the entire field of administration
and every organ of the state is regulated by Rule of Law. However strict adherence to
the doctrine of Rule of Law as envisaged by the dicey is impractical. Administration is
the need of the day, it cannot be sidelined.
In the case of Indira Nehru Gandhi v. Raj Narayan, the Apex Court held that Rule of
Law embodied in Article 14 of the Constitution is the “basic feature” of the Indian
Constitution and hence it cannot be destroyed even by an amendment of the Constitution
under Article 368 of the Constitution.
In the case of Maneka Gandhi v. Union of India, the Hon’ble Supreme Court established
the Rule of Law that no person can be deprived of his life and personal liberty except
procedure establish by law under Article 21 of the Constitution.
Dicey’s concept of Rule of Law had its advantages and disadvantages.
Advantages of Rule of Law-
• It supports the equality of all citizens before the law,
• secures a nonarbitrary form of government, and
• more generally prevents the arbitrary use of power.

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• Research shows that rule of law correlates to higher economic growth, greater
peace, less inequality, improved health outcomes, and more education.
• The laws are clear, publicized, stable and just; and are applied evenly;
and protect fundamental rights including the security of the persons and
property.
• The rule of law will also promote stability in government, as all the organs of
government will act according to the stated laws.

Disadvantages of Rule of Law-

• Dicey has ignored the importance of the Codification of laws.
• Dicey has misunderstood the concept of Droit administratif.
• He ignored the need of administrative law and administrative discretion.
• He opposed the place of Tribunals and other quasi-judicial disputes settlement
authorities.

UNIT – II: LEGISLATIVE POWERS OF ADMINISTRATION:

2.1 Meaning of and Necessity for Delegated Legislation
2.2 Functions which may be delegated (Permissible Delegation)
2.3 Functions which may not be delegated (Impermissible Delegation)
2.4 Legislative control of delegated legislation
2.5 Judicial control of delegated legislation

Broad Questions
1. Define ‘Delegated Legislation’. Explain the judicial control exercised on
delegated legislation.
2. Define ‘Delegated Legislation’. Describe the necessity of ‘Delegated
Legislation’
3. Define ‘Delegated Legislation’. Explain the legislative control exercised on
delegated legislation.
4. Define ‘Delegated Legislation’. And write detail note on functions which may
be delegated.
5. Define ‘Delegated Legislation’. And write detail note on functions which may
not be delegated.
6. Explain the concept of ‘Delegated Legislation’? Supply your answer with
reference to Judicial Control on Delegated Legislation?
Short Note
2. Delegated Legislation

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Administrative Law in India

Administrative law in India attempts to regulate administrative actions by controlling
delegated legislation and subjecting administrative discretionary actions to judicial
review. It also provides for the constitution of tribunals and their composition.

Delegated Legislation
‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a
person with the power or empowering him to act on behalf of that person who has given
him that power or to act as his agent or representative.
When the functions of Legislature is entrusted to organs other than the legislature by the
legislature itself, the legislation made up by such organ is called Delegated Legislation.
Such a power is delegated to the executives/administrators to resolve the practical issues
which they face on a day-to-day basis.
The practice of delegated legislation is not bad however the risk of abuse of power is
incidental and hence safeguards are necessary.

Meaning -
‘Delegated legislation’ means exercising of legislative power by an agent who is lower
in rank to the Legislature, or who is subordinate to the Legislature.
By delegating the legislation by Parliament to the Executive or any subordinate, it
empowers different people or bodies to integrate more details to an Act of Parliament.
Definition –
According to Sir John Salmond, “Subordinate legislation is that which proceeds from
any authority other than the sovereign power.”

Reasons for growth of Delegated Legislation

Many factors are responsible for the rapid growth of delegated legislation in today’s
time. Because of the radical change in the governance of a country from ‘police state’
to the ‘welfare state’ the function and the need of delegated legislation have increased.
These factors and reasons for growth of delegated legislation can be seen as follows:

i. Pressure upon time of Parliament: The area, scope, or horizon of state

activities are expanding day by day and it is difficult for the Parliament to make laws on
each and every matter as they are having a lot of work to do and they also have to make
legislation on various matters.
The Parliament is so much occupied with matters concerning foreign policy and political
issues that it has not much time to enact the laws in detail. So it only frames the broad
part of the rule and outline of the legislation and gives that legislation to the executive
or some of its subordinates to fill the full detail following the necessary rules and
regulations. It is like they have given the only skeleton and the subordinate have to fill
flesh and blood to the skeleton to make it alive.
ii. Technicality in the matters: after framing policies by the parliament on any
topic, that topic is given to the government department or any particular person who

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knows about the technicalities of that particular topic and given the power to lay down
the details.
iii. Flexibility: Parliamentary amendment is very slow and it requires a process to
make any type of law. Parliament cannot foresee the contingency while enacting a law.
e.g., police regulation, bank rate, import and export, foreign exchange, etc.
iv. Emergency: In any type of emergency one should know how to deal with it
quickly without any delay. Delegated legislation is the only way to meet that situation.
Therefore, in times of emergency and war, an executive is given wide power to deal
with that situation.
v. Similarly, in the case of inflation, flood, epidemic, economic depression, etc
immediate remedial actions are necessary.
vi. Experiment: The practise of delegated legislation enables the Executive to
experiment. For example, in traffic matters of the road an experiment method can be
conducted.
vii. Complexity of modern administration: Modern administration used to take
added responsibilities when it came to upraise the condition of the citizens such as
looking after their employment, health, education, regulating trade, etc.

Constitutionality of delegated legislation

It basically means the limits that are permissible within a Constitution of a country
through which Legislature with all his right can delegate its power of rule making to
other agencies of administration. The aim of extending the power of the government is
to handle socio-economic problem.
Position in India: The position and Constitutionality of delegated legislation in India
can be seen in various cases.
In the case of Raj Narain Singh v. Chairman, Patna Administration Committee Air,[9]
the Supreme Court of India upheld the delegation of power given to the executive by
the legislature.

Advantages of delegated legislation

There are many advantages of delegated legislation as it is essential for a democratic
country to flourish or make laws according to its public. These advantages are as
follows:
Reduce the workload of Parliament: The Parliament has to pass several legislation
within a short span of its life.
Technical Expertise: Today’s world has become very technical and complicated by the
introduction of modern means and advancement in technology.
Decentralized decision making: The local councils are more suited to make laws for
their constituencies as they better know the condition of their constituencies than any
other.
Emergencies: Delegated Legislation allows for rapid action in case of an emergency but
Parliament take too much time in taking any decision.
Enables flexibility: In delegated legislation, Parliament makes law in broader skeletal
form and the executive had to fill the minor details.

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Seeing the interest of affected person: To make legislation effective it is important to

know the need and interest of that person who is going to be affected by that law or
legislation.
Experimental basis: It can be used as an experimental basis. It allows in quick
lawmaking.

Control over delegated legislation

There are three measures of controlling abuse of power through delegated legislation
(as adopted in India)-

• Parliamentary Control
Parliamentary control is considered as a normal constitutional function because the
Executive is responsible to the Parliament.
In the initial stage of parliamentary control, it is made sure that the law provides the
extent of delegated power. The second stage of such control involves laying of the Bill
before the Parliament.

• Procedural Control
Procedural control means the procedures defined in the Parent Act (Act delegating the
legislating power) have to be followed by the administrative authority while making the
rules.
It involves pre-publication of the rules so that the people who would be affected by the
proposed rules know it beforehand and can make representations if they are not satisfied.
After pre-publication is done and once all the concerned bodies, persons and authorities
have been consulted the rules are to be published in the official gazette so that the public
is aware of the existence of the rules.

• Judicial Control
The judiciary looks into the following aspects to determine the legal validity of the rules
so made using the power so delegated-

1. If the administrative legislation is ultra-vires the Constitution.

2. If the administrative legislation is ultra-vires the Parent Act.
3. If the administrative legislation is arbitrary, unreasonable and discriminatory.
4. If the administrative legislation is malafide.
5. If the administrative legislation encroaches upon the rights of private citizens
derived from the common law, in the absence of an express authority in the
Parent Act.
6. If the administrative legislation is in conflict with another statute.
7. Power of the legislating authority to legislate the rule.
8. If the administrative legislation is vague.

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

Functions which may be delegated (Permissible Delegation)

There is a doctrine which deals with the limits of delegated legislation and is known as
‘The Doctrine of Permissible Limits’. This doctrine deals with the power of legislature
which can be delegated to the administrative authorities as well as the powers which
can’t be delegated
It basically means the limits that are permissible within a Constitution of a country
through which Legislature with all his right can delegate its power of rule making to
other agencies of administration.
The delegated legislation can be struck down through the essential function test. The
Courts have consistently held that an essential legislative function cannot be delegated
to the executive and has to be exercised by the legislature.
Doctrine of permissible limits talks about those limitations of a legislation to which the
power can be delegated. This doctrine put a limitation on the legislature so that
legislature could not delegate it's all power to the administrative authorities.

• POWER OF EXCLUSION AND INCLUSION- A power can be conferred on the

Government to bring individuals, bodies or commodities within, or to exempt them
from, the purview of a statute.
• POWER TO AMEND SCHEDULE- In a number of cases, the power to amend the
schedule has been upheld because the policy to give guidance to the Government
was discernible from the Act.
• POWER TO EXEMPT- The legislature can exempt any person, institution or
commodity from its purview. The reason to have an exemption clause is to:
• REDUCE WORK OF LEGISLATURE.- To remove the hardship to the persons this
may materially affect the policy of the act.
• POWER TO MODIFY- Sometimes, a statute confers on the executive the power to
modify or amend the parent statute. This power makes the executive supreme even
over the Legislature, but the conferment of this power provides flexibility in the
changing circumstances.
• REMOVAL OF DIFFICULTIES- Statutes usually contain a removal of difficulty
clause, nick-named in Britain as the Henry VIII clause because "that king is regarded
popularly as the impersonation of executive autocracy".
‘Henry VIII’ clauses

An express provision that authorises the amendment of either the empowering

legislation, or any other legislation, by means of delegated legislation is called a ‘Henry
VIII’ clause.

‘Henry VIII’ clause as ‘a clause in an enabling Act providing that the delegated
legislation under it overrides earlier Acts or the enabling Act itself; so named because
of its autocratic flavour.

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Requirements for application of Henry VIII clause: three requirements must be fulfilled
for a removal of difficulty order to be made by the Executive, viz.: (1) that a difficulty
has arisen in giving effect to the provisions of the scheme: (2) that the order to be made
is such as appears to the Government to be necessary or expedient for the purpose of
removing the difficulty; and (3) That the order is not inconsistent with any provision of
the scheme

DOCTRINE OF EXCESSIVE DELEGATION

The legislature can delegate its legislative powers subject to its laying down the policy.
The legislature must declare the policy of the law, lay down legal principles and provide
standards for the guidance of the delegate to promulgate delegated legislation, otherwise
the law will be bad on account of “excessive delegation”.

So, this doctrine means that the legislature can’t delegate unrestrained uncanalised and
unqualified legislative powers on an administrative body. Delegation is valid only if it
is confined to legislative policy and guidelines.
Functions which cannot be delegated (IMPERMISSIBLE DELEGATION)
The following functions can’t be delegated by the legislature to the executive:
• ESSENTIAL LEGISLATIVE FUNCTIONS -There is no bar in the constitution of
India against the delegation of legislative power to the executive, but the essential
legislative functions can’t be delegated to the executive at all. Thus laying down a
legislative policy is the function of legislature only and by entrusting this power to other
body, the legislature can’t escape from its duty and create a parallel legislature.
• REPEAL OF LAW- Power to repeal a law is an essential legislative function. So, if
legislature delegates this power to executive, it will be excessive delegation and will
become ultra vires.
• MODIFICATION Modifying the act in relation to its important aspects is essential
legislative function. So, delegation of such power to modify the act without any
limitation is not permissible. • EXEMPTION - Without laying down norms and policy
for guidance delegation of power of exemption to executive is not impermissible.
• REMOVAL OF DIFFICULTY - Under the guise of removing difficulty, legislature
cannot enact a Henry VIII clause and delegate a function or power which is essential in
nature or which cannot be delegated normally.
• RETROSPECTIVE OPERATION - The power of law making in India vests in the
legislature. Parliament can pass a law retrospectively or prospectively subject to the
provisions of the constitution. But this principle cannot be applied in the case of
delegated legislation. Giving an act a retrospective operation is an essential legislative
function which cannot be delegated by the legislature to the executive.

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• FUTURE ACTS - Legislature cannot delegate the power by which the executive can
adopt the laws which may be passed in future because this is an essential legislative
function.
• IMPOSITION OF TAX - Regarding tax statute, following points may be considered:
Power to impose a tax is an essential legislative function under article 265 of the
constitution and cannot be delegated by to the executive.
• OUSTER OF JURISDICTION OF COURT - Jurisdiction of court is a purely
legislative function and hence it can’t be delegated to the executive.
• OFFENCES AND PENALTIES - Making a particular act an offence and prescribing
punishment for it is an essential legislative function and hence is not delegated. B

UNIT – III: JUDICIAL POWERS OF ADMINISTRATION

3.1 Need for devolution of adjudicatory authority on Administration
3.2 Tribunals – Meaning, Nature, Constitution, Jurisdiction and Procedure
3.3 Natural Justice –Meaning, Nature, content etc.
• Rule Against Bias – Types of Bias
• Right of Fair Hearing- Components of Fair Hearing
3.4 Exceptions to natural justice
3.5 Effect of violation of natural justice

Broad Questions
1. Write a detailed note on significance of natural justice principles in judicial
and Quasi- Judicial proceedings in the light of landmark judicial decisions.
2. Describe in brief ‘Principle of Natural Justice’. Elaborate Effect of violation
of Natural Justice.
3. Discuss the importance of the principles and Exceptions of natural justice.
4. Explain the maxim, “no man should be condemned unheard”
5. Explain nature and scope of “Administrative Tribunals”.
6. Write in Detail-Rule Against Bias – Types of Bias.
7. What is the meaning of Administrative Discretion and what are the various
limitations on Administrative Discretion?
8. Right of Fair Hearing- Components of Fair Hearing
Short Notes
1. Bias
2. Speaking Order
3. Audi Alteram Partem
4. Reasoned Decision
5. No man shall be judge in his own cause
6. No man shall be condemned unheard

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Need for devolution of adjudicatory authority on Administration

Judicial Functions of Administration.

Need for devolution of adjudicatory authority on Administration.

The judiciary of the State could not put in place a mechanism for speedy adjudication,
moreover, there was a backlog of cases.
Adjudicatory authority was hence devolved upon the administration to resolve the issue.
However, it is not an absolute substitute of the judiciary.

Problems of administrative decision making.

Though the administration has been given adjudicatory authority to a certain extent,
there are lacunas in the administrative adjudication. For instance, the procedure of a
proceeding before an administrative adjudicatory authority is not defined, there is an
unsystematic system of appeal, the decisions of the authority are not recorded and
vesting of overlapping functions in the same authority are the problem in administrative
adjudication.

Tribunals

Administrative adjudication –
Tribunals are constituted for speedier adjudication of disputes and settlement of
complaints. In a tribunal, matters are adjudicated by a Bench comprising both judicial
and non-judicial members. Tribunals are not, however, a substitute for Courts.
The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates
of the Classical Roman Republic’.
Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under
the monarchy and the republic with the function of protecting the citizen from
arbitrary action by the aristocrat magistrates.

Meaning - The Supreme Court decided in Associated Cement Co. Ltd. v. P.N.
Sharma (AIR 1965 SC 1595) that a Tribunal may possess some but not all of the
trappings of the Court. In terms of its functionality, the administrative tribunal is neither
purely judicial nor entirely administrative but A tribunal is a quasi-judicial body.

Nature and Scope

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The Tribunals were formed to minimize the burden of courts, for fast rulings, and
provide a forum led by attorneys and professionals inside the subjects included by the
Tribunal’s authority.

A Tribunal, generally, is any person or institution having an authority to judge,

adjudicate on, or to determine claims or disputes – whether or not it is called a
tribunal in its title.
Need of Tribunal
• To overcome the situation that arose due to the pendency of cases in various
Courts, domestic tribunals and other Tribunals have been established under
different Statutes, hereinafter referred to as the Tribunals.
• The Tribunals were set up to reduce the workload of courts, to expedite
decisions and to provide a forum which would be manned by lawyers and
experts in the areas falling under the jurisdiction of the Tribunal.
• The tribunals perform an important and specialised role in justice mechanism.
They take a load off the already overburdened courts. They hear disputes
related to the environment, armed forces, tax and administrative issues.

CONSTITUIONAL PROVISIONS
Tribunals were not part of the original constitution, it was incorporated in the Indian
Constitution by 42nd Amendment Act, 1976.
✓ Article 323-A deals with Administrative Tribunals.
✓ Article 323-B deals with tribunals for other matters.

Under Article 323 B, the Parliament and the state legislatures are authorised to
provide for the establishment of tribunals for the adjudication of disputes relating to
the following matters:
o Taxation
o Foreign exchange, import and export
o Industrial and labour
o Land reforms
o Ceiling on urban property
o Elections to Parliament and state legislatures
o Food stuff
o Rent and tenancy rights

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

No. Court of Law Tribunal

A court of law is a part of An Administrative Tribunal is

the traditional judicial an agency created by the
1.
system whereby judicial powers statute and invested with judicial
are derived from the state. power.

Tribunal is also known as the

The Civil Courts have judicial
Quasi-judicial body. Tribunals
power to try all suits of a civil
2. have the power to try cases
nature unless the cognizance is
of special matter which are
expressly or impliedly barred.
conferred on them by statutes

Judges of the ordinary courts of

Tenure, terms and conditions of
law are independent of the
the services of the members
executive in respect of their
3. of Administrative Tribunal are
tenure, terms and conditions of
entirely in the hands of
service etc. Judiciary is
Executive (government).
independent of Executive

The president or a member of the

Tribunal may not be trained as
The presiding officer of the court
4. well in law. He may be an expert
of law is trained in law.
in the field of Administrative
matters.

A judge of a court of law must be An Administrative Tribunal may

5. impartial who is not interested in be a party to the dispute to be
the matter directly or indirectly. decided by it.

An Administrative Tribunal is not

A court of law is bound by all
bound by rules but bound by
6. the rules of evidence and
the principles of nature of
procedure.
Justice.

Administrative Tribunal may

Court must decide all decide questions by taking into
questions objectively on the basis account departmental policy, the
7.
of evidence and materials on decision of Administrative
record. Tribunal may be subjective
rather than objective.

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

A court of law can decide vires of Administrative Tribunal cannot

8.
a legislation do so

Characteristics of Administrative Tribunals

▪ Administrative Tribunal is a creation of a statute.
▪ An Administrative Tribunal is vested in the judicial power of the State and
thereby performs quasi-judicial functions as distinguished from
pure administrative functions.
▪ Administrative Tribunal is bound to act judicially and follow the principles
of natural justice.
▪ It is required to act openly, fairly and impartially.
▪ An Administrative Tribunal is not bound by the strict rules of procedure and
evidence prescribed by the civil procedure court.

TRIBUNAL PROCEDURE AND POWERS

1. A Tribunal shall never be confined by the procedure prescribed in the Code of

Civil Procedure, 1908 (5 of 1908), but shall be guided either by principles of
natural justice and shall have such authority to regulate its very own procedure,
which would include determining whether to hold its inquiry in public or in
private, issue to the other provisions of this Act as well as any rules made by
the Central Government.
2. A tribunal must evaluate every application brought to it as quickly as
practicable, and most applications are determined after a review of records and
written statements, as well as after hearing any oral arguments presented.
3. During reviewing a complaint, a Tribunal shall have the very same powers as a
civil court under the Code of Civil Procedure, 1908 (5 of 1908), for the goal of
fulfilling its obligations under this Act.

In India, there are a number of tribunals which are constituted under the Central Acts.
Some of the Tribunals are listed below.

1. Administrative Tribunal- constituted under the Administrative Tribunal Act, 1985.

2. Industrial Tribunal- constituted under the Industrial Dispute Act, 1947.
3. Railway Rates Tribunal- constituted under the Railway Act, 1989.
4. Claim Tribunal- constituted under the Motor Vehicle Act, 1939.
5. Income Tax Appellate Tribunal- constituted under Income Tax Act, 1961.
6. National Green Tribunal- constituted under National Green Tribunal Act, 2010.
7. Competition Appellate Tribunal- constituted under the Competition Act, 2002.

In L. Chandra Kumar v Union of India, the Supreme Court had held that tribunals are
the court of first instance in respect of the areas of law for which they were constituted.
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All the decisions of the Tribunals are, however, subject to scrutiny before the Division
Bench of the High Court within whose jurisdiction the concerned tribunal would fall,
through an appeal.

Principle of Natural Justice

Introduction
Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law
and it is closely related to Common law and moral principles but is not codified. It is a
law of nature which is not derived from any statute or constitution.

Principles of Natural Justice.

Administrative law requires that the administrative adjudicatory authority adjudicates
matters applying the principles of natural justice. Basically, natural justice consists of 3
rules.

• Rule against bias: That no person should be a judge in one’s own case and
that justice should not only be done but seen to be done.
• Audi Alteram Partem: That every person has the right to be heard before a
matter is adjudicated in his favour/against him.
• Speaking order (Reasoned decisions)- That the adjudicating authority must
provide the reason behind its decision. This is a newly evolved principle
which aims at curbing arbitrariness on part of the adjudicating authority.

Purpose of the principle

• To provide equal opportunity of being heard.
• Concept of Fairness.
• To fulfil the gaps and loopholes of the law.
• To protect the Fundamental Rights.
• Basic features of the Constitution.
• No miscarriage of Justice.
Rules of Natural Justice
• Nemo Judex In Causa Sua
• Audi Alteram Partem
• Reasoned Decision

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.
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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

Type of Bias

1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. 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.
✓ 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.
✓ 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

Right of Fair Hearing- Components of Fair Hearing
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.
The term ‘notice’ originates from the Latin word ‘notitia’ which means ‘being known’.
Notice is the starting of any hearing. Unless a person knows the formulation of subject
and issues involved in the case, he cannot defend himself.

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

Components
The right to fair trial is one of the basic guarantees of human rights and rule of law,
aimed towards ensuring the administration of justice. Fair trial includes fair and proper
opportunities allowed by law to prove innocence.

The right to a fair hearing contain three broad principles:

(1) the right to a fair and public hearing within a reasonable time by an independent
and impartial tribunal;
(2) the right of every person charged with a criminal offence to be presumed
innocent until proved guilty according to law; and
(3) the 'minimum rights' required to be afforded to all persons charged with a
criminal offence.
A notice must be adequate and contain:

1) Time, place and nature of hearing,

2) Legal authority under which hearing is to be held,
3) Statement of specific charges (or grounds) and proposed action (or grounds) which
the person has to meet.

• Notice– Valid and proper notice should be given to the required parties of the
matter to further proceed with the procedure of fair trial method.
• Right to present the case and evidence– After receiving the notice he must be
given a reasonable time period to prepare and present his case in a real and
effective manner. The refusal should not be done on the unreasonable ground or
due to arbitrary.
• Right to Cross Examination– Right of fair hearing includes the right to cross-
examination the statement made by the parties. If tribunals denied the right to
cross-examination then it will violate the principles of natural justice.
• Right of Legal representative– In the process of enquiry, every party has the
right to have a legal representative.

Reasoned Decision
Basically, it has 3 grounds on which it relies:-

1. The aggrieved party has the chance to demonstrate before the appellate and
revisional court that what was the reason which makes the authority to reject it.
2. It is a satisfactory part of the party against whom the decision is made.
3. The responsibility to record reasons works as obstacles against arbitrary action by
the judicial power vested in the executive authority.

Exceptions to Natural Justice

In the above sections of the article it has been roughly discussed about the meaning of
the concept of natural justice and the principles it revolves around. But like many other
legal provisions and legal principles, this rule is also not absolute and contains within
itself some restrictions which have developed over the time. Applications of natural
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justice have been excluded during various occasions, which would be discussed
further in the article.
• Doctrine of necessity and absolute necessity
Doctrine of necessity is an exception to the rule of bias under natural justice. It
allows authorities to do certain things which are necessary to be done at the moment,
and those acts which would in a normal situation not be allowed by the law. It is
invoked in situations where there is no definite authority to decide on a matter.
• Statutory exceptions to the rule of natural justice
The principle of natural justice can be excused by certain acts of the parliament.
Parliament may through its powers get rid of the procedures that are otherwise
necessary for any administrative action.
• Exception during situations of emergency
India has witnessed its share in situations of emergencies. It is generally observed in
India that during a situation of emergency, in those cases where the right to be heard
will affect the government process, it will be excluded by the law for the time being.
• Exception where no right of an individual has been infringed
Where a person does not have any right, and neither can he derive any right from
any statute or any common law provision, he cannot ask for a remedy in that case
under the principles of natural justice, and he may in such case forfeit procedural
fairness.
• Exception in cases of impracticality
This is one of the simplest exceptions to the rule of natural justice. Natural justice
can be applied only when it is practical in nature to apply it. But natural justice can be
excluded when there is no practicality to the situation in it.
• Exception in cases of academic evaluation
In cases where the authority involved is academic in nature, or if the authority is of
complete administrative nature, in such cases, their evaluations may be excluded from
the ambit of the rule of natural justice

Effect of violation of principles of natural justice

Any order made in violation of principles of natural justice is void ab-initio and is
liable to be annulled and cancelled.
The Supreme Court in Nawabkhan Abbaskhan V. State of Gujarat held that an order
which infringes a fundamental freedom passed in violation of the audi alteram partem
rule is a nullity.

UNIT – IV: JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

4.1. Administrative actions- meaning and classification
4.2. Public law review- Prerogative writs – remedies
4.3. Grounds of Writ jurisdiction and judicial review
• Illegality
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• Irrationality
• Procedural impropriety
• Unreasonableness
4.4. Conditions for exercising writ jurisdiction
• Exhaustion of administrative remedies
• Alternative remedy
• Laches
• Res Judicata
4.5 Private law review-remedies
• Injunction
• Declaration
• Suit for damages
• Specific performance and Civil Suits for compensation
• Statutory appeals
4.6. Public interest litigations for enforcement of public duty

Broad Questions
1. Write an exhaustive note on grounds of Judicial control of administrative
Action.
2. What is ‘Administrative Action’? Explain various judicial controls exercised
on administrative Action.
3. Explain Various grounds of Writ jurisdiction with judicial review.
4. What are the Conditions for exercising writ jurisdiction under Judicial control
of Administrative Action?
5. Public interest litigation has become an easier media of judicial Redressal,
Critically Examine.
Short Notes
1. Writs and PIL
2. Laches
3. Res Judicata
4. Unreasonableness
5. Injunction
6. Public interest litigation

Administrative action
Meaning- Administrative action is the action which is neither legislative nor judicial
in nature but only concerned with the analysis and treatment of a particular situation
and is devoid of generality.
An administrative action is a legal action concerning the conduct of a public
administrative body.

Administrative action is of three kinds-

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• quasi-legislative,
• quasi-judicial and
• quasi-executive

CONTROL OF ADMINISTRATIVE ACTION

Who Can Apply
Locus Standi– the traditional rule is that the right to move to the Supreme Court is the
only those whose fundamental rights are infringed.

Public Interest Litigation- A Dynamic Approach

The court now permits public interest litigations or social interest litigations or social
interest litigations at the instance of ‘ public spirited citizens’ for the enforcement of
constitutional and other legal rights of any person or group of persons who because of
their poverty or socially or economically disadvantaged position are unable to approach
the Court for relief. Some of these PILs happen to be landmark cases like Bhopal Gas
Tragedy case, Taj Trapezium case, Community Kitchen case, etc.

Administrative actions are controlled by courts in certain circumstances by

issuing different writs and thus plays an important role in judicial control of
administrative actions in India. Article 32(2) states the power of the Supreme court to
issue writs in nature of-

WRIT OF HABEAS CORPUS

The expression “Habeas Corpus” in Latin means ‘to have the body’. Under this writ, if
a person is unlawfully detained, his friends or relatives or any person or any person on
behalf of the prisoner or the prisoner himself can file an application in court under
Article 226 in High Court or under Article 32 in Supreme Court.

WRIT OF MANDAMUS

The expression ‘Mandamus’ in Latin means “We Command”. Mandamus is a Judicial

order strictly following the rule of rule of Locus Standi . It is issued in the form of a
command to any Constitutional, Statutory or Non-Statutory authority asking to carry out
a public duty imposed by law or to refrain from doing a particular act, which the
authority is not entitled to do under the law. It is an important writ to check arbitrariness
of an administrative action. It is also called ‘Writ of Justice’.

WRIT OF PROHIBITION

The expression ‘prohibition’ literally means ‘to prohibit’. It is a judicial order issued by
the Supreme Court or a High Court to an inferior Court or quasi-judicial body which

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forbids the inferior courts to continue proceedings and keep themselves within the limits
of their jurisdiction. The writ of prohibition can be issued on the following grounds:
(i) Absence or Excess of jurisdiction;
(ii) Violation of the principles of natural justice;
(iii) Unconstitutionality of a Statute;
(iv) Infraction of Fundamental Rights

WRIT OF CERTORI

The expression “certiorari” in Latin word means “to certify”. This writ is a judicial order
which confers power on the Supreme Court under Article 32 and High Courts under
Article 226 of the Constitution to correct illegality of their decisions or otherwise quash
it.

The grounds on which the writ of certiorari may be issued are:

(a) Error of Jurisdiction- Lack of jurisdiction or Excess of jurisdiction
(b) Abuse of jurisdiction
(c) Error of law apparent on the face of the record
(d) Violation of principles of natural justice

GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

“Judicial review” is power of courts to express upon the constitutionality of legislative
acts.

Judicial review is the interference of judicial control on the legislative as well as the
executive organs of the Government. The doctrine of judicial review was first time
submit by the Court of America. Originally, the United States the constitution did not
contain an express provision for judicial review. The power of judicial review was,
however, assumed by the Supreme Court of America In the historic case of Marbury v.
Madison.

Constitutional Provisions

The power to review the action of administrative authority has been intend in appellate
courts under Article 13, Article 32 (power of SC to issue writs), Article132 (appeal
against HC order in SC), Article 226 (power of High Courts to issue writs), Article
227(superintendence of High Court over District courts and tribunals), so that the
actions of executive bodies can be confined within the Constitutional limits.

The doctrine-ultra-vires is the basic structure of administrative law. It is considered as

the foundation of judicial review to control actions of the administration. Ultra-vires
refers to the action which is made in an excessive manner or outside the ambit of the
acting party.

Generally, the grounds for judicial review of administrative action in India are as
follows-
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• Irrationality
“A general principle which has remained unchanged is that discretionary power
conferred on an administrative authority is required to be exercised reasonably.”

This is also known as the Wednesbury Test. In the case of Associated Provincial
Pictures Houe vs Wednesbury Irrationality as a ground of judicial review of
administrative action was developed. The court held that the person to whom a
discretion is been vested must excersie it with reasonable case and only on reasonable
grounds. Any interference by the court would not be permissible unless and until that
the decision was illegal or had defects with regard to the procedural improprieties.

• Procedural Impropriety
The concept of procedural impropriety can be understood as the procedural failure to
follow . In other words, it means failure to follow rules and regulation and other is the
failure to observe the basic law of the natural justice. It is a ground of judicial review
of administrative action.

• Proportionality

The Concept of the Proportionality can be understood as the administrative

action should match the desired result. These means that the tries to balance means to
end. It has to be reasonableness and it has to be seen that the courts see that the course
of action has to be followed.

• Illegality

The concept of Illegality can be understood as when a body acts beyond the power to
which it is vests with.

A decision of a public body may be illegal if the decision maker: acts outside or beyond
its powers, also known as ‘ultra vires’ is directs itself in law – for example the decision
maker does not understand and apply the law correctly exercises a power wrongly or for
an improper purpose – a decision must be reached on the basis of the facts of the matter
in question. It is a ground of judicial review of administrative action.

Conditions for exercising Writ jurisdiction in review of administrative action

• Exhaustion of administrative remedies

• Alternative remedy
• Laches
• Res Judicata

• Exhaustion of administrative remedies

The doctrine of exhaustion of administrative remedies says that a person challenging
an agency decision must first pursue the agency's available remedies before seeking
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judicial review. It was created by courts in order to promote an efficient justice system
and autonomous administrative state.

The non-exhaustion of available administrative remedies is fatal to the resort to

judicial action.

The obligation to exhaust internal remedies should not be rigidly imposed nor used by
administrators to frustrate an applicant's efforts to review the action.

The rule regarding exhaustion of administrative remedies is not absolute and may be
relaxed where a party has no other recourse or there are circumstances indicating the
urgency of judicial intervention.

• Alternative remedy

It is a well-established proposition of law that when an alternative and equally

efficacious remedy is open to a litigant he should be required to pursue that remedy and
not to invoke the special jurisdiction of the High Court to issue a prerogative writ.

An alternate remedy by itself does not divest the High Court of its powers under Article
226 of the Constitution in an appropriate case though ordinarily, a writ petition should
not be entertained when an efficacious alternate remedy is provided by law

Exceptions to the rule of alternate remedy arise where-

(a) the writ petition has been filed for the enforcement of a fundamental right protected
by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice;
(c) the order or proceedings are wholly without jurisdiction; or
(d) the vires of a legislation is challenged;

• Laches

Laches is an equitable defense, or doctrine. A defendant who invokes the doctrine is

asserting that the claimant has delayed in asserting its rights, and, because of this delay,
is no longer entitled to bring an equitable claim.

Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants
who approach the court/appellate authorities belatedly without any justifiable
explanation for bringing action after unreasonable delay.

To prove laches, a defendant must show that the plaintiff's delay in filing their lawsuit
was unreasonable and that delay resulted in prejudice or negative effects upon the
defendant.

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In order to successfully assert a laches defense, the following three elements must be
present: (1) a delay in asserting a right or a claim; (2) the delay was not reasonable or
excusable; and (3) either acquiescence in the act about which plaintiff complains OR
prejudice to the defendant resulting from the delay.

Res judicata
res judicata, (Latin: “a thing adjudged”), a thing or matter that has been finally
juridically decided on its merits and cannot be litigated again between the same parties.
Res means “subject matter” and judicata means “adjudged” or decided and together it
means “a matter adjudged”.

A Latin term meaning "a matter judged". This doctrine prevents a party from re-
litigating any claim or defence (or issue) already litigated. The doctrine is meant to
ensure the finality of judgments and conserve judicial resources by protecting litigants
from multiple litigation involving the same claims or issues.

Dr. Shree Krishna, AIR 1960 SC 1186, for the first time Supreme Court held that the
general principle of res judicata applies even to writ petition filed under Article 32 of
the Constitution of India. Thus, once the petition filed under Article 32 is dismissed by
the court, subsequent petition is barred.

STATUTORY REMEDIES FOR ADMINISTRATIVE ACTION

Private law review-remedies
• Injunction
• Declaration
• Suit for damages
• Specific performance and Civil Suits for compensation
• Statutory appeals

A remedy given under a statute authority is called Statutory Remedy. Statutory remedies
are not equivalent to constitutional remedies.

Statutory remedies may be divided into

a) Civil Remedies (General and Specific)
b) Criminal Remedies. (Punishments, monetary compensation)

General Statutory Civil Remedies –

• Injunctions (Perpetual/Mandatory, Temporary)

• Declaratory Actions, Specific Performance, Restitution, Recovery of legal costs
i.e. advocate fee, court expenses etc., Recovery of possession of property and
• Damages- liquidated, unliquidated & statutory etc (Include nominal, substantial,
Penal or exemplary etc)

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Remedies under CONTRACTS:

• Compensation for loss or damage by breach of contract

• Liquidated damages
• Specific Performance.
• Injunction
• Cancellation.

Public interest litigations for enforcement of public duty

Introduction
The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to previously
unrepresented groups like the poor, the racial minorities, unorganised consumers,
citizens who were passionate about the environmental issues, etc.

Evolution of PIL in India:

The seeds of the concept of public interest litigation were initially sown in India
by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979)
that focused on the inhuman conditions of prisons and under trial prisoners that led to
the release of more than 40,000 under trial prisoners.

PIL is a right given to the socially conscious member or a public spirited NGO to
espouse a public cause by seeking judicial for redressal of public injury. Such
injury may arise from breach of public duty or due to a violation of some provision of
the Constitution.

Impact on public administration

PIL is a component that enables the poor to get equity. The advancement of this
authentic instrument demonstrated advantageous for creating a nation like India.

UNIT – V: JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

5.1 Meaning and Need for administrative discretion
5.2 Judicial Control of administrative discretion
 Failure to exercise discretion
 Abuse of discretion
5.3. Doctrine of Proportionality
5.4. Doctrine of Legitimate Expectation
5.5. Exclusion of Judicial Review

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Broad Questions
4. Discuss the various grounds available for judicial review of Administrative
Discretion. Explain your answer with judicial decisions.
5. Doctrine of Proportionality in administrative law write in detail.
6. Explain the Doctrine of Legitimate Expectation in administrative law.
Short Notes
3. Need for administrative discretion
4. Failure to exercise discretion

Meaning and need for administrative discretion

Introduction -Administrative discretion is an informal unilateral practice and is
therefore unprotected by the protections inherent in structured procedure. Discretion in
simple words means choosing among the different alternatives available without
respect to any predetermined criterion, irrespective of how fanciful that choice may
be.

Meaning- Discretion means the liberty to act according to one’s pleasure, or at one’s
own will. Administrative discretion thus means the authority vested in the Executive,
the public officials who administer the government, to perform certain functions, make
certain decisions at their own judgment, and exercise certain powers.
Definition- Lord Diplock in Secretary of State for Education & Science v. Tameride
Metroborough Council5 has defined it as “the very concept of Administrative
Discretion involves a right to choose between more that one possible courses of action
upon which there is a room for reasonable people to hold differing opinion as to what
may be preferred.”
Justice Coke as defined it as “ Discretion is a science or understanding to discern
between falsity and truth, between right and wrong, between substance and shadow,
between equity and colourable classes and pretence not to do according to their wills
and personal affections.”

Need for administrative discretion -

The reason for growth of discretionary power can be attributed to the following
reasons:
• The welfare notion of the government and adoption of other development policies.
• Environmental Control mechanisms.
• Lack for Technical Competence and requirement of expert advice on the part of the
legislation
• Unforeseen Situations.
• Complexity of Subject matters and variety of problems to be encountered by the
administrative authorities.

Judicial Control of administrative discretion

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• Failure to exercise discretion

• Abuse of discretion

here are various grounds on which the judiciary will have to intervene in the exercise of
discretionary power for judicial control administrative discretion. These grounds
include:

(i) Abuse of discretionary power:

When discretionary power is conferred on authority, it must be exercised in accordance

with the law. As Markose put it, “when the mode of exercising a valid power is improper
or unreasonable, there is an abuse of power.” There are certain circumstances from
which abuse or excess of discretionary power can be inferred. These may be acting
without jurisdiction, exceeding jurisdiction, an arbitrary action, mala fide actions,
improper motive, unreasonableness, non-observance of principles of natural justice, etc.

(ii) Non-exercise of discretion:

judicial control administrative discretion, as non-exercise of discretion arises either

(a) When the authority delegates his power to a subordinate without any statutory
authority, or

(b) When someone acts under dictation from superiors without any statutory authority.

The main grounds for reviewing the administrative discretion, may be classified
as under:
Ultra-Vires
o The doctrine of ultra-vires states that a person or authority acting under statutory
power can do only those things which are statutorily authorised.
o In case of failure to do so, the doctrine permits the courts to strike down the
decision made by the bodies exercising the public functions.

Abuse of Power

• It has been seen that administrative bodies do not exercise their discretionary
power for the purpose intended to by the legislature.
• All these factors amount to the abuse of discretionary powers and become
ground for judicial review.

Irrelevant Consideration

If the authority concerned pays attention to, or takes into account wholly irrelevant or
extraneous circumstances, events or matters, then the administrative action is ultra-
vires and bound to be quashed.

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Associated Provincial Picture Homes Ltd. v. Wednesbury Corp.

Ruled that an authority exercising discretion must adhere to some principles: which
include:

a. take all relevant factors into account;

b. exclude all irrelevant factors from its consideration;
c. reach the decision which is neither perverse nor irrational.

Errors of Law

Syed Yakoob v. K. S. Radha Krishnan

Court observed:
An error of law which is apparent on the face of record can be corrected by a writ but
not an error of fact, however, grave it may appear to be.

The only case where a finding of fact might be impugned on the ground of error of law
apparent on the face of record are:

a. erroneously refusing to admit admissible and material evidence,

b. erroneously admitting inadmissible evidence which influenced the finding, and
c. a finding of fact based on no evidence.

Unauthorised Delegation
The principle is that when a power entrusted to a person in circumstance indicating
that trust is being placed in his individual judgement and discretion, he must exercise
that power personally unless he has been expressly empowered to delegate it to
another.

Doctrine of Proportionality

Proportionality

The doctrine of proportionality is emerging as a new ground of challenge for judicial

review of administrative discretion.

It is a recognised general principle of law evolved with a purpose to maintain a proper

balance between any adverse effects which its decision may have on the rights,
liberties or interests of persons and the purpose it pursues.

The doctrine of proportionally endavours to confine the exercise of discretionary

powers of administrative authority to mean which are proportioned to the object to be
pursued.

Irrationality

The term irrationality and 'unreasonableness' are often used interchangeably.

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However, irrationality may be said to be only one facet of unreasonableness.

A decision is said to be irrational if it is unreasoned; if it is lacking ostensible logic or

comprehensible justification.

Procedural Impropriety

Procedure 'deals with the structure' of decision making and not the quality or impact of
the decision themselves.

Another important concern of the procedural justice is to promote the quality, accuracy
andrationality of decision-making process.

In case there is procedureal impropriety, the court can interfere.

Jurisdictional Error

The court have held that the administrative authority cannot go into the question of
validity of substantive law or procedure laid down in the statute or the rules
framedthereunder since it itself is creature of statute.

The doctrine of ultra-vires permits the courts to strike down decision made by
administrative bodies exercising public functions, if they exceed the jurisdiction
provided in the statute under which they exercise their powers.

Malice or Malafide

It is not only the power but the duty of the court to ensure that all authorities exercise
their powers properly, lawfully and in good faith.

If the powers are exercised with oblique motive, in bad faith or for extraneous or
irrelevant considerations, there is no exercise of power known to the law and action
cannot be termed as, action in accordance with law.

Colourable Exercise of Powers

The courts have used this doctrine to denounce an abuse of discretion which speaks
that under the 'colour' or 'guise' or power conferred for one purpose, the authorities
seek to achieve something else which is not authorised to do so under the law in
question.

Doctrine of Legitimate Expectation

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

An Analysis of "Legitimate Expectation as a Ground for Judicial Review"

Introduction
In public or administrative law, a legitimate expectation is a clear, unambiguous and
unqualified assurance, understood by those to whom it is given, that a particular course
of action will be taken or a particular procedure will be followed.
The doctrine of legitimate expectation is relatively new concept that has been
fashioned by Courts for the review of administrative action.
The concept gained standing after it was introduced by Lord Denning in Schimdt v
Secretary of Home Affairs.
MEANING
Legitimate Expectation means that a person may have a reasonable expectation of
being treated in a certain way by administrative authorities owing to some consistent
practice in the past or an express promise made by the concerned authority.
According to this doctrine, a public authority can be made accountable in lieu of a
legitimate expectation. Thus, the doctrine of Legitimate Expectation pertains to the
relationship between an individual and a public authority.
It is not a legal right. It is an expectation of a benefit, relief or remedy that may
ordinarily flow from a promise or established practice.
Historical development
The doctrine of legitimate expectation was first developed in English law as a ground
of judicial review in administrative law to protect a procedural or substantive interest
when a public authority rescinds from a representation made to a persons.
The Doctrine of Legitimate Expectation was firstly discussed in the Indian arena in the
case of State of Kerala v. K.G. Madhavan Pillai ((1988) 4 SCC 669).
Use of doctrine
this doctrine is a form of a check on the administrative authority. When a
representation has been made, the doctrine of legitimate expectation imposes, in
essence, a duty on public authority to act fairly by taking into consideration all
relevant factors relating to such legitimate expectation. It also adds a duty on the
public authority not to act in a way to defeat the legitimate expectation without having
some reason of public policy to justify its doing so.
WHO CAN INVOKE THE PRINCIPLE OF LEGITIMATE EXPECTATION?
The doctrine of legitimate expectation, based on established practice, can be invoked
only by someone who has dealings or transactions or negotiations with an authority.
A total stranger unconnected with the authority or a person who had no previous
dealings with the authority and who has not entered into any transaction or
negotiations with the authority, cannot invoke the doctrine of legitimate expectation,
merely on the ground that the authority has a general obligation to act fairly.
LEGITIMATE EXPECTATION MAY ARISE:

a. if there is an express promise given by a public authority; or

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b. because of the existence of a regular practice which the claimant can

reasonably expect to continue;
c. such an expectation must be reasonable.
LEGITIMATE EXPECTATION as a ground of JUDICIAL Review
This doctrine first found its mention in the case of State of Kerala vs. Madhavan
Pillai. In this case the government had issued a sanction to the respondents to open a
new aided school and to upgrade the existing ones. However, after 15 days, a direction
was issued to keep the sanction in abeyance. This action was challenged on the ground
that the same violated the principles of natural justice. The Hon'ble Supreme Court
held that the sanction order created legitimate expectations in the respondents which
was violated by the second order as the same was without following the principles of
natural justice which is sufficient to vitiate the administrative order.
This doctrine was applied in another case The Scheduled Caste and Weaker Section
Welfare Association vs. State of Karnataka (1991)2 SCC 604 where the government
had issued a notification notifying the areas where slum scheme would be introduced.
However, the notification was subsequently amended, and some areas earlier included
were left out. The court held that when a notification is made rescinding the earlier
notifications without hearing the affected parties, it is clear violation of the principle of
natural justice. The earlier notification had raised legitimate expectation in the people
living in an area which has been subsequently left out and hence legitimate expectation
cannot be denied without a fair hearing.
In GNCT of Delhi v. Naresh Kumar14, 175 (2010) DLT 143, the Delhi High Court
summarized the legal position with regard to legitimate expectation as follows:

• Firstly, mere reasonable or legitimate expectation of a citizen may not by itself

be a distinct enforceable right, but failure to consider and give due weightage
to it may render the decision arbitrary.
• Secondly, legitimate expectation may arise if (a) there is an express promise
given by a public authority; or (b) because of acceptance of a regular practice,
a claimant can reasonably expect it to continue; and (c) such expectation may
be reasonable.
• Thirdly, for a legitimate expectation to arise, the decision of administrative
authority must affect the person by depriving him of some benefit or advantage
which he had in the past been permitted, by the decision maker, to enjoy and
which he can legitimately expect to be permitted to continue, until some
rational grounds for withdrawing it have been communicated to him.
• Fourthly, if the authority proposes to defeat a person's legitimate expectation, it
should afford him an opportunity to make a representation in the matter.
• Fifthly, the doctrine of legitimate expectation permits the court to find out if
the change in policy which is the cause for defeating the legitimate expectation,
is irrational or perverse or one which no reasonable person could have made.

Critical appraisal
Doctrine of Legitimate Expectation and Article 14 of the Constitution of India.
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Under Article 14 of the Constitution of India, every citizen has the right to equality of
law and equal protection before law. The concept of an arbitrary action being in
violation of Article 14 was first introduced by J. Bhagwati in the case of E.P. Royappa
v State of Tamil Nadu AIR 1974 SCC 555 wherein he stated that ‘equality is antithetic
to arbitrariness’.
There is definitely scope for improvement in India for the doctrine of legitimate
expectation.
The doctrine of legitimate expectation is a judicial innovation that provides locus
standi to a person who though does not have a legal right, does have an expectation of
the concerned authority behaving in a certain way.
CONCLUSION
The necessity for application of the doctrine of Legitimate Expectation arises when an
administrative body by reason of a representation or by past practice or conduct stirred
an expectation which would be within its powers to accomplish unless some
superseding public interest comes in the way.

Exclusion of Judicial Review

Limitation Of Judicial Review

Abstract

Judicial Review performs checks and balances of the system between the Judiciary
and Legislature by providing the power to the judiciary to review any law made by the
Parliament and further hold it to be void if it is not in consonance with the provisions
of the Constitution.
Judicial review in India can be classified in the three categorical area.
1. Review of Judicial decision
2. Administrative Action Judicial Review
3. Legislative Action Judicial Review
Review of Administrative Actions

The state intervenes into the lives of its citizens to a very considerable degree for
protecting the public and maintaining law and order.
The actions carried out under the administrative law are administrative actions. It is
an legal action which is concerned with the conduct of a public administrative body.
it is required that All administrative powers must be exercised bonafide and fairly. In
case of any of powers are abused, it leads to a ground of judicial review.
The judicial review in five types of writs are available for administrative actions and
are given under Article 32 and Article 226 of the Constitution of India.

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UNIT – VI: LIABILITY OF THE STATE

6.1 Sovereign and Non-Sovereign Function
6.2 Liability of government in Contracts
6.3 Liability of State in Torts
6.4 Doctrine of Estoppel and Waiver
6.5 Doctrine of Public Accountability
6.6 Government’s privileges in legal proceedings

Broad Questions
6. Explain the Sovereign and Non- sovereign Functions of State.
7. Write a detailed note on Contractual liability of Government.
8. Explain the Doctrine of Estoppel and Waiver in detail.
9. Describe the Doctrine of Public Accountability in India
10. What are the Government’s Privileges in legal proceeding in India?
Short Notes
3. Liability of State in Torts
4. Doctrine of Public accountability of state

LIABILITY OF THE STATE

State has to act through human agencies in carrying out various functions. So the
important question which arises is whether the State can be held vicariously liable for
the acts of its employees.
State liability refers to the liability of the state arising from the acts of omission/
commission committed by its servants.
Vicarious Liability of state is also known as the tortious liability of the Government.
State's liability for the tortious actions of its employees is called as tortious liability of
the State. State is liable for the acts of negligence, wrongful execution and omission or
commission either voluntarily or involuntarily.
Liability of State for the tortious acts of its servants known as tortious liability. of
State makes it liable for the acts of omission and commission, voluntary or involuntary
and brings it before Court of Law in a claim for non liquidated damages for such acts.
This liability is also a branch of Law of Torts.

Sovereign and Non-Sovereign Functions

The Court pointed out the principle of law that the Secretary of State for India in
Council is liable for the damages occasioned by the negligence of Government
servants, if the negligence is such as would render an ordinary employer liable.
According to the principle laid down in this case the Secretary of State can be liable
only for acts of non sovereign nature, liability will not accrue for sovereign acts.

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Sovereign and non-sovereign functions of the state

Sovereign functions of the state can be defined as those functions where the state is
not answerable before the court of law for their performance.

These functions are mainly concerned about-

- the defence of the country,

- maintenance of the armed forces of the country, and
- maintenance of peace in the territory.

These functions can only be performed by the state for external sovereignty and that is
why they are not amenable to the jurisdiction of ordinary Civil Courts and are
primarily inalienable functions.

Apart from this, there are various sovereign functions of the state which are not
primarily inalienable which include –
- taxation,
- police functions comprising maintenance of law and order,
- legislative functions,
- administration of law and policies, and
- grant of pardon.
Non-sovereign functions are those functions that are amenable to the jurisdiction of
an ordinary civil court and if the state does any tortious act or breach of contract, it
will be liable for the wrong done.
But today, it has become very difficult to differentiate between the Sovereign and non-
sovereign functions of the state.
According to the case of Peninsular and Oriental Steam Navigation Co. v. Secretary
of State for India, the court for the first time dealt with the difference between
Sovereign and non-sovereign functions.
It stated that the Secretary of the State will not be liable for its sovereign functions and
would be liable for only the commercial functions. This judgment helped the court to
understand and interpret the functions of the state when the question of liability arose.
But there was no established protocol or norm to decide which function is sovereign
and which is non-sovereign.

Liability of government in Contracts

The Government of India both at the Centre as well as at the State level also make
several contracts because Government also runs public companies and carries out
various function.

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While an ordinary contract is governed by the Indian Contract Act, 1872 but in case of
a Government Contract some additional provisions have been provided under the
Indian Constitution.

The formation of Government contract is done in a different manner as compared to an

ordinary contract.

Meaning of Contract
A contract is an agreement which is made between at least 2 people in which both of
them agree to perform an act or abstain from doing the act in return for some
consideration. Section 2(h) of the Indian Contract Act has defined a contract as an
agreement which is enforceable by law. Thus when an agreement is not against the
provisions of law it is a contract.

Government Contract
As the name suggests a Government contract is a contract in which one of the parties is
the Government. The State, as well as the Central Government, maybe the party in a
Government contract. All the Government contracts are made in the name of President
of India.

In cases of Government contracts, the provisions of the Constitution specifically

enumerated in Article 299 has to be followed and the formalities which are required
have to be fulfilled for the formation of such contracts.

Formation of Government Contract

Under Article 298 of the Indian Constitution, the power of the Union and the State
government to carry on any trade or business has been provided. For the formation of a
Government contract the requirements under Article 299 have to be fulfilled and if they
have fulfilled a contract can be enforced against the Government.

As per Article 299, all the contracts which are made under the Executive power of the
Union or the State should be made in the name of the President or the Governor
respectively. If a contract is not made under the President’s or Governor’s name, such
a contract will not be considered as a Government contract.

Contractual Liability in Government Contracts

Under Clause 2 of Article 299, the President or the Governor cannot be held
personally liable for the non-performance of the contract.
This immunity is provided to them only.
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The liability of the Government will be the same as is the case in a normal contract
under the Indian Contract Act, 1872. Thus, a person can sue the Government for the
breach of contract.
Article 299 clearly provides the following three requirements for a valid government
contract under this Article:
The Contract must be expressly formed: It is an essential condition for a valid
government contract under Article 299 that it must be in a proper form i.e. it must be
written.
The expression must be in the name of the President or the Governor, as the case
may be: Another significant requisite for a valid government contract is that it must be
expressed in the name of the President or the Governor.
Executed by an authorized person: It is also an essential requirement for a valid
government contract that the execution of the contract must be by an authorized
person.

Liability of State in Torts

The concept of tortuous liability of State means that the state is liable for the acts of
its servants. The State’s liability for the tortious acts of its servants, known as the
tortious liability of the State, makes it liable.
In India Article 300 declares that the Government of India or a of a State may be sued
for the tortious acts of its servants.
Liability of the State must be distinguished from the liability of the individual officers
of the State.

Relations in which Vicarious Liability arises

These are the major relations in which vicarious liability of a person arises

1. Master and Servant.

2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.

Vicarious Liability of Master for torts by Servant

In a Master-Servant relationship, the master employs the services of the servant and he
works on the command of master and thus a special relation exists between the two
and in case of a tort committed by the servant, his master is also held liable.
This liability of the master is based on the following two maxims-

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Respondeat Superior (Let the principal be liable)

Respondent Superior (Let the master answer)

This doctrine is based on public policy since it aims to assign the risks usually
associated with it to the business. When applying this doctrine, an employer and the
master are liable for the negligent commissions or omissions of an employee and the
servant which occur during employment.
Actions performed by the subordinates during their jobs or agency under an employer
or a master’s explicit or implied authority, respectively. There are two requirements of
the doctrine:

• A true master-servant and employer-employee relationship.

• The tortious act of a servant and an employee must be one within the scope
of his employment. The ‘scope of employment’ refers to the act performed
under the express or implied authority of the superiors.

Qui-Facit per Alium Facit per se (He who acts through another does it himself).

According to this maxim, by employing servants the master is obliged to perform the
duties, he is responsible for their actions in the same way as he is responsible for his
actions.

Post-Constitution judicial decisions

• State of Haryana v. Santra: It was held that there was negligence on the
state responsibility standards.

Doctrine of Estoppel and Waiver

MEAINING-
Waiver means to give away the right whereas estoppel is an impediment on a
person, preventing him from making inconsistent facts. The basis of estoppel is
that a person cannot rely upon a statute and at the same time challenge it.
Section 115 of the Indian Evidence Act, 1872 incorporates the meaning of estoppel as
when one person either by his act or omission, or by declaration, has made another
person believe something to be true and persuaded that person to act upon it, then in
no case can he or his representative deny the truth of that thing later in the suit or in
the proceedings. In simple words, estoppel means one cannot contradict, deny or
declare to be false the previous statement made by him in the Court.

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Principles of Estoppel

Conditions for application of Doctrine of Estoppel

The following conditions are to be satisfied in order to apply the doctrine of estoppel:

• The representation must be made by one person to another person.

• The representation made must be as to facts and not as to the law.
• The representation must be made as to an existing fact.
• The representation must be made in a manner which makes the other person
believe that it is true.
• The person to whom the representation is being made must act upon that
belief.
• The person to whom the representation would be made should suffer a loss
by such representation.

The doctrine of waiver explains that a person, entitled to a right or privilege, is free
to waive that right or privilege. It is voluntary relinquishment or abandonment of a
known existing legal right or privilege. Once a person has so waived his right, he would
not be allowed to claim it afterwards.

Estoppel being a rule of evidence may if established, assist a plaintiff in enforcing a

cause of action, but it is not a cause of action. A waiver, on the other hand, is
contractual and may constitute a cause of action. The basic yet essential differences
between the concept of estoppel and waiver are listed below:

1. Estoppel is a rule of evidence and does not form a basis for instituting a
suit, but Waiver originates from a contractual relationship and may give
birth to cause of action.
2. The knowledge of reality or truth is not a factor or essential condition for
claiming estoppel, whereas, in the case of a waiver, real facts or truth is
known to both parties.
3. In some circumstances, the acquiescence amounts to estoppels; however,
in case of a waiver, some act or conduct is necessary together with
acquiescence.
4. Estoppel is used as defence and not cause for bringing a suit, but Waiver
may be used as a cause to give rise to a right.

Doctrine of Public Accountability

The need for public accountability exists due to the need for a relationship of trust
between the public sector and the public.
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Public accountability relates to the relationship between the government and the
general public.
In the context of administrative law, the growth and advancement of the doctrine of
Public Accountability playing a crucial role.
The underlying principle of the doctrine of public accountability is that the power and
discretion held by the administrative authorities is subjected to the public trust.

Government’s privileges in legal proceedings

Immunity From Estoppel:

The administrative authority is vested with large discretionary powers. As a result the
Government may make some prior pronouncement of its policies or it may give some
advice or promise to an individual.

UNIT – VII: SETTLEMENT OF DISPUTES AND GRIEVANCE REDRESSAL

PROCEDURES:
7.1 Informal methods of settlement of disputes- Conciliation and mediation etc
7.2 Commission of Enquiry- The Commissions of Inquiry Act, 1952
7.3 Ombudsman in India - The Lokpal and Lokayuktas Act, 2013
7.4 Central Vigilance Commission- Central Vigilance Commission Act 2003
7.5 The Whistle Blowers Protection Act, 2014

Broad Questions
6. Write a detailed note on informal methods of settlement of disputes
7. Explain in detail the salient features of Commissions of Inquiry Act 1952
8. Explain in detail the salient features of Lokpal and Lokayuktas Act 2013
9. Explain in detail the salient features of Central Vigilance Commission Act
2003
10. Write an exhaustive note on Whistle Blowers Protection Act, 2014
Short Notes
5. Advantages of Conciliation and Mediation,
6. Powers of commission under Commissions of Inquiry Act 1952
7. Jurisdiction of Lokpal
8. Function and Powers of Central vigilance Commission

Informal methods of settlement of disputes- Conciliation and mediation etc

Formal methods include the mechanisms which are officially constituted or organized,
whereas informal may include those which are not officially recognized and organized.
To give a brief idea of what these methods actually are:

1. Negotiation – It is a discussion between two or more people who want to solve their
disagreements, decide what to do, or make a bargain. Negotiation may also involve
advocates or representatives.
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2. Whereas, Conciliation uses a third person who is asked to help people reach an
amicable resolution of their dispute. The conciliator cannot impose a settlement upon
the parties and generally interacts with the parties separately.
3. On the other hand, Facilitation is a dispute resolution technique that involves a neutral
who helps members of a group to define and meet their goals, solve a problem, exchange
ideas and information or hold effective meetings.
4. Another method for discussing problems and exploring solutions with the help of a
trained neutral is Mediation. The job of mediators is to help people communicate clearly
and negotiate effectively. Mediators do not give legal advice, take sides, impose
solutions or make decisions about resolutions. Mediation is a private and voluntary
practice. A research survey done by an organization shows that mediation frequently
results in agreements that are voluntarily followed because they are created by the
people directly involved.
5. Neutral evaluation is another technique that is conducted by a neutral that has
expertise in hearing arguments and predicting the likely outcome in court. The evaluator
may also provide guidance and settlement assistance with the parties’ consent.
6. Arbitration, the most common these days, is a formal proceeding that uses one or
more neutrals to listen to evidence and render a decision. These neutrals collectively are
known as the ‘Arbitral Tribunal.’ The decision may be binding or non-binding.
7. Litigation is a legal dispute which is argued in the court of law. Attorneys help
negotiate a resolution, or a judge or jury make a decision. The people directly involved
in the dispute have little control or no control over the process or outcome. It is entirely
left on the attorneys to represent their clients and get the best outcome for them.
8. Along with these more known practices, there are some other processes too which
may be prevalent in some parts of the world but definitely not in all. Consensus
Building is one of them and is a process of negotiation that crafts an outcome to which
all participants can agree. In tailoring the agreement, participants seek to resolve or
mitigate objections of the minority to achieve the most agreeable decision. A consensus
is usually defined as meaning both general agreement and the process of getting to such
agreement.
9. Restorative Justice is another such process. It encompasses victim/survivor centered
processes that address harm from crime, bullying, and violations of legal and human
rights. Restorative resolutions engage those who are harmed, wrongdoers and their
affected communities in search of outcomes that may help promote the repair,
reconciliation and the rebuilding of relationships

7.2 Commission of Enquiry- The Commissions of Inquiry Act, 1952

Commission of Enquiry Act, 1952

This Act is made for the appointment of commissions to inquire into matters which are
related or concerned or affects the public at large.

Who can set up such commissions?

While both central and state governments can set up such Commissions of
Inquiry.
The appointment of the commission is to be made by a notification in the official
gazette. Where a resolution of the house of people or of a state legislative assembly is
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passed asking for the appointment of a commission of inquiry, government is bound to

make such appointment.
What are its powers?
Under The Commissions of Inquiry Act, 1952, a Commission set up by the
government shall have the powers of a civil court
A commission of inquiry has powers of a civil court are:

i. summoning and enforcing attendance of any person from any part of India and
examining her on oath.
ii. requiring discovery and production of nay document.
iii. receiving evidence on affidavits.
iv. requisitioning any public record or copy thereof from any court or office.
v. issuing commissions for the examinations of witnesses or documents and
vi. any other matter, which may be prescribed.

7.3 Ombudsman in India - The Lokpal and Lokayuktas Act, 2013

History- The concept of ombudsman originated in 1809 in Sweden.
In the year 1966, the First Administrative Reform Commission passed
recommendations regarding the setting up of two independent authorities at the central
and at the state level.

The “India Against Corruption” movement was led by Anna Hazare to exert pressure
on Government.
The protests and the movement resulted in the passing of the Lokpal and Lokayuktas
Bill, 2013, in both the Houses of Parliament. The bill received assent from President
on 1 January 2014 and came into force on 16 January 2014 under the name “The
Lokpal and Lokayukta Act 2013”.

The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal at the
Union level and Lokayukta at the State level.
Lokpal and Lokayuktas are statutory bodies and these do not have any constitutional
status. These institutions perform the function and role of an “Ombudsman” (an
official appointed to investigate individuals’ complaints against a company or
organization, especially a public authority). They inquire into allegations of corruption
against certain public bodies/organizations and for other related matters.

Structure of the Lokpal

Lokpal is a multi-member body consisting of one chairperson and a maximum of 8
members.

Qualification
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The person to be appointed as the chairperson of the Lokpal must be either:

1. The former Chief Justice of India; or

2. The former Judge of the Supreme Court; or
3. An eminent person with impeccable integrity and outstanding ability, who
must possess special knowledge and a minimum experience of 25 years in
matters relating to:
1. Anti-corruption policy;
2. Public administration;
3. Vigilance;
4. Finance including insurance and banking;
5. Law and management.
The maximum number of members must not exceed eight. These eight members must
constitute:

• Half members to be judicial members;

• Minimum 50% of the Members should be from SC/ ST/ OBC/ minorities and
women.
The judicial member of the Lokpal must be either:

• A former Judge of the Supreme Court or;

• A former Chief Justice of the High Court.
The non-judicial member of the Lokpal needs to be an eminent person with flawless
integrity and outstanding ability. The person must possess special knowledge and an
experience of a minimum of 25 years in matters relating to:

• Anti-corruption policy;
• Public administration;
• Vigilance;
• Finance including insurance and banking;
• Law and management.

Term and appointment to the office of Lokpal

Lokpal Chairman and the Members can hold the office for a term of 5 years or till they
attain the age of 70 years, whichever is earlier. The members and the chairman of Lokpal
are appointed by the president on the recommendation of a selection committee.

The selection committee consists of:

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• The Prime Minister of India;

• The Speaker of Lok Sabha;
• The Leader of Opposition in Lok Sabha;
• The Chief Justice of India or any Judge nominated by Chief Justice of India;
• One eminent jurist.
The Prime Minister is the Chairperson of the selection committee.

Jurisdiction and powers of Lokpal

The Jurisdiction of Lokpal extends to:

• Prime Minister, Ministers,

• Members of Parliament,
• Groups A, B, C and D officers,
• Officials of Central Government.
Lokpal’s jurisdiction also includes:

• Every person who is or has been in charge (director/ manager/ secretary) of

a body or a society set up by the act of central government,
• Any society or body financed or controlled by the central government,
• Any person involved in act of abetting,
• Bribe giving or bribe-taking.

7.4 Central Vigilance Commission- Central Vigilance Commission Act 2003

The Indian government introduced the Central Vigilance Commission (CVC) in the
year 1964. The commission was set up on the recommendation of K. Santhanam
Committee on Prevention of Corruption.
It was set up by the Government of India Resolution on 11 February 1964, on the
recommendations of the Committee on Prevention of Corruption, headed by K.
Santhanam, to advise and guide Central Government agencies in the field of vigilance.
Nittoor Srinivasa Rau was selected as the first Chief Vigilance Commissioner of India.
It has the status of an autonomous body, free of control from any executive authority,
charged with monitoring all vigilance activity under the Central Government of India.
Role - The CVC is not an investigating agency: the only investigation carried out by
the CVC is that of examining Civil Works of the Government.

Appointment- The Central Vigilance Commissioner and the Vigilance

Commissioners are appointed by the President on recommendation of a Committee

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consisting of the Prime Minister (Chairperson), the Minister of Home

Affairs (Member) and the Leader of the Opposition in the Lok Sabha.

7.5 The Whistle Blowers Protection Act, 2014

Historical Background - In November 2003, Satyendra Dubey a whistleblower
and National Highways Authority of India (NHAI) engineer was murdered after he
exposed corruption in the construction of highways.[16] As a result, the Supreme
Court, in April 2004, pressed the government into issuing an office order, the Public
Interest Disclosures and Protection of Informers Resolution, 2004 designating CVC
as the nodal agency.
In 2007, the report of the Second Administrative Reforms Commission also
recommended that a specific law needs to be enacted to protect whistleblowers.
Whistleblowing is defined as an act of disclosing information by an employee or
any concerned stakeholder about an illegal or unethical conduct within an
organization.

Meaning- A whistleblower is a person who informs about a person or organization

engaged in such illicit activity.
Whistle blowers, i.e. persons making a public interest disclosure related to an act of
corruption, misuse of power, or criminal offense by a public servant.
Object-
• to establish a mechanism to receive complaints relating to disclosure on any
allegation of corruption or willful misuse of power or willful misuse of
discretion against any public servant and

• to inquire or cause an inquiry into such disclosure and

• to provide adequate safeguards against victimization of the person making such

complaint and for matters connected therewith and incidental thereto.

Key Highlights of Whistleblower Protection Act, 2014

The act establishes a mechanism to receive complaints related to disclosure of

allegations of corruption or wilful misuse of power or discretion, against any public
servant, and to inquire or cause an inquiry into such disclosure.

The act also provides adequate safeguards against victimization of the person
making such complaints.
It allows any person, including a public servant, to make a public interest
disclosure before a Competent Authority. The law has elaborately defined various
competent authorities. For instance, Competent authority to complaint against any
union minister is the Prime Minister.
The law does not allow anonymous complaints to be made and clearly states that
no action will be taken by a competent authority if the complainant does not establish
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his/her identity.

The maximum time period for making a complaint is seven years.

UNIT – VIII: RIGHT TO INFORMATION:

8.1 Official secrets Act- 1923
8.2 Right to Information Act, 2005-Salient features of the Act
8.3 Citizen charter - obligations of Public Authorities
8.4 Hurdles in the implementation of the Act

Broad Questions
6. Write down the Salient features of Right to Information Act, 2005.
7. Explain in detail request for obtaining information, disposal of request &
exemption from disclosure of information.
8. Issues and Constraints in the implementation of the Right to Information Act,
2005.
9. What is information? Explain the procedure to obtain information and disposal
of information under the Right to Information Act,2005.
10. Powers and functions of the information commissions, appeal and penalties

Short Notes
8 Provisions relating to protection of persons making disclosure
9 Salient features of the Official Secrets Act- 1923.
10 Prosecution and Penalties under Official secrets Act- 1923.
11 State Information Commission.
12 Designation of Public Information Officers.

8.1 Official secrets Act- 1923

The Official Secrets Act 1923 is India’s anti-espionage act held over from the British
colonial period. It states clearly that actions which involve helping an enemy state
against India are strongly condemned. It also states that one cannot approach, inspect,
or even pass over a prohibited government site or area like an electrical substation.
It states that actions which involve helping an enemy state against India are strongly
condemned. It also states that one cannot approach, inspect, or even pass over a
prohibited government site or area. As per the act, helping an enemy state can be in the
form of communicating a sketch, plan, a model of an official secret, or of official
codes or passwords, to the enemy.

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The Second Administrative Reforms Commission (ARC) in 2006 recommended that

OSA be replaced with a chapter in the National Security Act containing provisions
relating to official secrets.
The law makes spying, sharing ‘secret’ information, unauthorised use of uniforms,
withholding information, interference with the armed forces in prohibited/restricted
areas, among others, punishable offences. If guilty, a person may get up to 14 years’
imprisonment, a fine, or both.

8.2 Right to Information Act, 2005-Salient features of the Act

A right of an individual, organization, or legal entity to demand information from

public bodies, without having to show a legal interest in that information.
Right to Information is a part of fundamental rights under Article 19(1) of the
Constitution. Article 19 (1) says that every citizen has freedom of speech and
expression.
Application-
It covers all the constitutional authorities, including executive, legislature and
judiciary; any institution or body established or constituted by an act of Parliament or
a state legislature. It is also defined in the Act that bodies or authorities established or
constituted by order or notification of appropriate government including bodies
"owned, controlled or substantially financed" by government, or non-Government
organizations "substantially financed, directly or indirectly by funds".

Definition- Sec. 2(f)

"information" means any material in any form, including records, documents, memos,
e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts,
reports, papers, samples, models, data material held in any electronic form and
information relating to any private body which can be accessed by a public authority
under any other law for the time being in force;

Objectives of the Right to Information Act:

▪ The basic object of the Right to Information Act is to empower the citizens.
▪ Promote transparency and accountability in the working of the Government.
▪ Contain corruption and make our democracy work for the people in real sense.
▪ It goes without saying that an informed citizen is better equipped to keep
necessary vigil on the instruments of governance and make the government
more accountable to the governed.
▪ The Act is a big step towards making the citizens informed about the activities
of the Government.
Salient features of RTI
▪ All citizens possess the right to information.
▪ Information can be obtained within 30 days from the date of request in normal
case. If information is a matter of life or liberty of a person, it can be obtained
within 48 hours from time of request.
▪ Every public authority is under obligation to provide information on written
request or request by electronic means.
▪ Certain information are prohibited (Section 8).
▪ Restrictions made for third party information.

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▪ Appeal against the decision of the Central Information Commission or State

Information Commission can be made to an officer who is senior in rank.

Public Information Officers - Section 5(1) of the Central Act requires the
appointment of as many Public Information Officers (PIOs) in "all administrative units
and offices" of the public authority as are necessary to provide the public with access
to information. In practice, this means that virtually every government office should
have someone in them who is designated as the PIO who will be responsible for
receiving and processing applications.

Duties of Public Information Officer

1. If an information sought by anyone is regarding his life or liberty, such RTI

is compulsory to be answered within a time period of 48 hours of the
receipt of the request.
2. If out of various information sought, only a few are being answered by PIO
then, it is the duty of Public Information Officer (PIO) to give a reason for
not providing with the complete documents demanded and rights of the
applicant with respect to review of the decision regarding non-disclosure of
part of the information.
3. On access to information, the RTI Act empowers citizen with the rights
equivalent to a member of Parliament. The information which cannot be
denied to any member of Parliament or State legislature cannot be denied to
any person seeking RTI.
4. It is the duty of PIO to suo motu (on its own) declare information such as
mentioned in the exhaustive list of section 4 of RTI Act.

Section 8 of the RTI Act – Exemption from disclosure of information

It deals with those information that are exempted from disclosure, they are
(1) Notwithstanding anything contained in this Act, there shall be no obligation to
give any citizen,—
1. Any Information, disclosure of which would prejudicially affect
the sovereignty and integrity of India, the security, strategic, scientific or
economic interests of the State, relation with foreign State or lead to
incitement of an offence;
2. Information which has been expressly forbidden to be published by any
court of law or tribunal or the disclosure of which may constitute contempt
of court;
3. Information, the disclosure of which would cause a breach of privilege of
Parliament or the State Legislature;
4. Information including commercial confidence, trade secrets or intellectual
property, the disclosure of which would harm the competitive position of a

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third party, unless the competent authority is satisfied that larger public
interest warrants the disclosure of such information;
5. Information available to a person in his fiduciary relationship, unless the
competent authority is satisfied that the larger public interest warrants the
disclosure of such information;
6. Information received in confidence from foreign government;
7. Information, the disclosure of which would endanger the life or physical
safety of any person or identify the source of information or assistance given
in confidence for law enforcement or security purposes;
8. Information which would impede the process of investigation or
apprehension or prosecution of offenders;
9. cabinet papers including records of deliberations of the Council of
Ministers, Secretaries and other officers: Provided that the decisions of
Council of Ministers, the reasons thereof, and the material on the basis of
which the decisions were taken shall be made public after the decision has been
taken, and the matter is complete, or over: Provided further that those matters
which come under the exemptions specified in this section shall not be
disclosed;
10. Information which relates to personal information the disclosure of which
has not relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the
appellate authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information: Provided that the
information, which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.

Grounds On Which An RTI Application Can be Rejected Are-

• When information affecting integrity, security, scientific, economic

interest of India is concerned or regarding relation with a foreign country
are sought.
Central Information Commission
Section 12 of the Right to Information Act, 2005 deals with the constitution of a
statutory body known as the Central Information Commission. According to this
provision, the central government shall constitute a body called the Central
Information Commission.

Power and functions of Information Commissions

Section 18 of the Right to Information Act, 2005 talks about the powers and functions
of the Information Commission. As per this provision, it is a duty of the Central
Information Commission and the State Information Commission to inquire the
complaints received from any person:

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1. who has been unable to submit a request for information to a Public Information
Officer either at central or state level, either by the reason that no such officers
have been appointed under this statute or the appointed officers refuse to accept
his/her application;
2. who has been refused to get access to the information requested under this
statute;
3. who has not been receiving any response for the application he/she made for
information and access to information with the limited time as per this
legislation;
4. who has been required to pay an unreasonable amount of fee;
5. who believes that the information provided by the officers are false, misleading
and incomplete in nature;
6. In respect of other matters related to the violation of the provisions of this Act.

Appeal

Section 19 of the Right to Information Act, 2005 deals with the provision related to
appeal. If any person does not receive a decision for the complaint he/she made under
Section 18 of the Right to Information Act, 2005 or if that person is aggrieved by the
decision of Public Information Officer either at central or state level, can file an appeal
to the senior officer in rank to the Public Information Officer within thirty days from
the date of such decision. If the person still is not satisfied with the decision, he may
file a second appeal to the Central Information Commission or State Information
Commission within ninety days from the date of such decision. And the decision of the
Central Information Commission and the State Information Commission would be
binding on the complainant.

8.3 Citizen charter - obligations of Public Authorities

The citizen’s charter is a document that outlines the service commitment of

organizations or service providers towards providing quality, high-standard services,
including mechanisms for grievance redressal.

Citizen’s Charter – Introduction

The Citizen’s Charter is a voluntary and written document that spells out the service
provider’s efforts taken to focus on their commitment towards fulfilling the needs of the
citizens/customers.

• It also includes how citizens can redress any grievances.

• It includes what the citizens can expect out of the service provider.

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• The concept is that the charter preserves the trust between the service provider
and the citizens/users.

Citizen’s Charter in India

In India, the concept of citizen’s charter was first adopted at a ‘Conference of Chief
Ministers of various States and Union Territories’ held in May 1997 in the national
capital.

• A major outcome of the conference was a decision to formulate Citizen’s

Charters by the central and state governments, beginning with sectors with a
large public interface such as the railways, telecom, posts, PDS, etc.
• The charters were mandated to include service standards, the time limit that the
people can expect to be served, mechanisms for redressing grievances, and a
provision for unbiased scrutiny by consumer/citizen groups.

Citizen’s Charter Components

A good citizen’s charter should include the following details:

1. Organization’s vision and mission statements.

2. A business carried out and other such details of the organization.
3. Explain who are citizens and clients.
4. Statement of services including quality, time-frame, etc. offered to citizens and
how to get those services.
5. Grievance redressal mechanisms.
6. Expectations from citizens/clients.
7. Additional commitments like the amount of compensation in case of service
delivery failure.

Other Elements of a Good Citizen’s Charter

• Should be in simple language

• The focus should be on the requirements of the customers
• There should be periodic review
• Reliability should be imbibed – that is, consistency in performance/delivery

Objectives of Citizen’s Charters

The basic objective of the citizen’s charters is to empower citizens through the delivery
of public services.

• Improve the quality of public services

• Ensuring transparency and right to information
• Save the time of both the customer and the service provider
• Have clear targets for all levels of services

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 Notes on Administrative Law, Prepared by Dr. M. S. Khairnar, Asst. Prof., BV YCLC Karad

Significance of Citizen’s Charters

Citizen’s charters are significant in that they empower citizens when it comes to public
services.

• It boosts accountability in the delivery of public services.

• It enhances good governance. It improves the effectiveness of organizations by
having measurable standards.
• It augments the quality of services delivered by incorporating an internal and
external monitoring entity.
• Being citizen-centric, it creates a professional and customer-oriented
environment for the delivery of services.
• It also helps boost the morale of the staff.
• It enhances transparency and openness.

8.4 Hurdles in the implementation of the Act

The basic objective of the Right to Information Act 2005 (RTI Act) is to empower
the citizens, to seek information from Public Authorities. Thereby it promotes
transparency and accountability in the working of the Government, and makes Indian
democracy work for the people in real sense.
Challenges

Government officials face hardly any punishment for violating the law by denying
applicants legitimate information.

It destroys the basic framework of incentives and disincentives built into the RTI
Act.
State and Central Information Commissions, which are the courts of appeal under the
RTI Act, failed to impose penalties in about 97% of the cases where violations
took place.

Misuse of RTI Act : Due to non-applicability of locus-standi rule to RTI case and
non-requirement of giving reasons for seeking information, it has been observed that
the RTI act is misused by the many petitioners.

This leaves ample scope for non-serious information seekers to misuse it for their
personal interest rather than public interest in disclosure.
Also, this diverts the time of public servants and adversely affects their work.
Low Public Awareness: Public Awareness is very low in India regarding their rights
as well as duties.

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Some reasons behind this are lack of education and awareness. It was further
observed that awareness level is low among the rural areas and in disadvantaged
communities such as women, SC/ST/OBC.
Huge Backlog and Delay in Disposal of Cases: One of the reasons the RTI Act was
considered to be revolutionary was that a response has to be provided in a fixed time,
failing which the government official concerned would be penalized. However, this
time-bound nature of the Act suffers due to multiple reasons:

Due to the insufficient number of Information Commissioners at the center

level, there is a high backlog and delay in the hearing of the cases.
Further, because of poor quality, incomplete and inaccurate information, the filing
the First appeal increases significantly under the RTI Act.
Moreover, the act doesn’t provide any limit within which the Second
Appeal to Chief Information Commission (CIC) must be heard. Due to this, the
applicant has to wait for months in order to have his or her case heard at CIC.
Ineffective record management systems and procedures to collect information
from field offices lead to delays in processing RTI applications.
Dilution of the law: The RTI Act (Amendment) Act, 2019 gives the central
government the power to fix the terms and the service conditions of the Information
Commissioners both at central and state levels.

By vesting excessive powers with the central government, this amendment has
hampered the autonomy of CIC.
Issue of Enforceability: The Act does not give adequate authority to the Information
Commissions to enforce their decisions.

Information commissions can give directions to public authorities to take the steps
necessary to comply with the Act, but are not empowered to take any action if such
directions are ignored.
Secrecy: The free flow of information in India remains severely restricted by the
legislative framework including several pieces of restrictive legislation, such as
the Official Secrets Act, 1923.

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