Administrative Law may be described as "those rules Administrative Law deals with the

which are recognised by the courts as powers of the administrative

law and which relate to and regulate authorities, the manner in which the
the administration of Government". powers are exercised and the
North lakhimpur law college remedies, which are available to the
Dicey has defined administrative law aggrieved persons, when these
as, "It is that portion of a nation's legal authorities abuse those powers.
system, which determines the legal
Q. 1. Define and Explain
status and liabilities of all State The key function of administrative law
"Administrative Law". Discuss its
officials, and secondly, defines the is to find the ways, in which the
nature and scope.
rights and liabilities of private administration could be kept within
Ans. It is difficult to evolve a scientific, individuals in their dealings with public limits, so that discretionary power may
precise and satisfactory definition of officials, and thirdly, specifies the not become arbitrary powers. The task
Administrative Law. Many jurists have procedure by which those rights and of Administrative Law is to reconcile, in
made attempts to define it, but none of liabilities are enforced." This definition the field of administrative action,
the definitions has completely is narrow and restrictive in so far as it democratic safeguard and standards
demarcated the nature, scope and does not take into consideration many of fair play with the effective conduct of
aspects of administrative law, such as Government.
content of administrative law. The
public corporations etc.
main object of this law is to protect
As has been rightly observed by Lord
individual rights.
His definition is mainly concerned with Denning : "Properly exercised, the new
Administrative law is a branch of public one aspect of administrative law, powers of the executive lead to the
law, which deals with the structure, namely, judicial control of public Welfare State; but abused they lead to
officials. the Totalitarian State". The main object
powers and functions of the organs of
administration; the limits of their of the study of Administrative Law is to
So from above discussion it can be unravel the way in which these
powers and the methods, by which
said that administrative law deals with administrative authorities could be kept
their powers are controlled, including
structure, powers and functions of within their limits so that the
the legal remedies available against
different administrative authorities and discretionary powers may not be
them.
procedure to be followed by them in turned into arbitrary powers.
Prof. Jennings defines administrative exercising powers and discharging
law as the "law relating to duties so as to protect rights of any Q. 2. Discuss Historical Background
administration. It determines the aggrieved person who has been of Administrative Law and reasons
affected by action of such authorities. for its growth.
organization, powers and duties of
administrative authorities".
Administrative Law deals with the Ans. Historical Background of
H.L.A. Hart defines "Broadly organization and powers of Administrative Law In England, by and
conceived, administrative law includes administrative authorities. The large, the existence of Administrative
law, that is made as well as the law, emphasis on the organization is only to Law as a separate branch of law was
that controls the administrative the extent that it is necessary to not accepted until the advent of the 20
authorities of the Government". understand the powers, characteristics th century. In 1885, Dicey in his
of action, procedure for the exercise of famous thesis on rule of law observed
According to Wade, Administrative those powers and the control that there was no Administrative Law
Law is `the law relating to the control mechanism provided therein. in England. In 1914, however, Dicey
of governmental power'. According to changed his views. In his famous book
him, the primary object of In simple words, administrative law is `Law and the Constitution', he admitted
Administrative Law is to keep powers the science of powers of administrative that during the last thirty years, due to
of the Government within their legal authorities. The nature of their powers increase of duties and authority of
can be studied under three heads : English officials, some elements of
bounds so as to protect the citizens
against their abuse. droit had entered into the law of
(1) Legislative or Rule-making, England.
According to K.C. Davis ,
(2) Judicial or Adjudicative, Administrative Law was in existence in
"Administrative Law is the law
concerning the powers and procedures India even in ancient times. The kings
(3) Purely Executive.
of administrative agencies, including observed the rule of Dharma and
especially the law governing judicial The scope of Administrative Law in administrators and nobody claimed
review of administrative action". India is very much similar to that of any exemption from it. With the
United States. With the growth of the establishment of East India Company
Garner also adopts the American powers of administrative authorities and the advent of the British Rule in
approach advocated by K. C. Davis. the question as to how to control these India, the powers of the Government
According to him, Administrative Law powers became very important. had increased. Many Acts, statutes
and the British Government, regulating (6) Administrative authorities can take report of committee on ministers. He
public safety, health, morality, preventive measures. In many cases, misunderstood "Droit Administrative",
transport and labour relations, passed these preventive actions may prove to which he identified with Administrative
legislations. be more effective and useful than Law. According to him, since there
punishing a person after he has was no dual system of Judiciary in
Since Independence, the activities and committed a breach of any provision of Great Britain, there is nothing like the
the functions of the Government have law. term `Administrative Law' in England.
further increased. The philosophy of a
welfare State has been specifically (7) Administrative authorities can take The views of Austin, to whom
embodied in the Constitution of India. effective steps for enforcement of the Constitutional Law merely determined
The Constitution of India, which clearly aforesaid preventive measures e.g. what persons or classes of persons
mentions the welfare aspect of the suspension, revocation and bore the sovereign powers while
State, and provides for an elaborate cancellation of licences, destruction of Administrative Law determined the
system of judicial control under Articles contaminated articles, etc., which are ends and modes to and in which
32, 226 and 227 does accord not generally available through regular sovereign powers were exercised, are
recognition to the growing importance courts of law. not complete in full sense, because he
of this subject. The Constitution also dealt Constitutional Law in very narrow
envisages `tribunals', public sector and Q. 3. Distinguish between sense.
government liability, which are Constitutional Law and
important aspects of Administrative Administrative Law In this regard, Maitland said, "I think
Law. The Constitution of India we catch his idea if we say that while
visualizes a profound social Or Constitutional Law deals with
transformation through law and structure, Administrative Law deals
"Administrative Law is part of with functions".
Administrative Law must play a very
Constitutional Law. It has become
significant role in channeling the State
on independent branch of study Thus, according to the view of these
effort so as to make it consistent with
only recently." Discuss. writers, Administrative Law and
the democratic values built into it.
Constitutional Law both deal with the
The following factors are responsible same subject. Although there is much
for the rapid growth and development similarity in the subject-matter of the
Ans. Constitutional Law And
of administrative law : two laws as the definition of
Administrative Law Sometimes, a
administrative law by Jennings clearly
question is asked as to whether there
(1) There is a radical change in the indicates, yet the tremendous growth
be any distinction between
philosophy as to the role played by the in the scope of Administrative Law has
constitutional law and administrative
State. The negative policy of separated it from Constitutional Law.
law. Till recently, the subject of
maintaining `law and order' and of In India Administrative Law has not
administrative law was dealt with and
`laissez faire' is given up. The state grown up fully. It is in its infancy.
discussed in the books of
has not confined its scope to the Before 1947, our country was a police
constitutional law and no separate and
traditional and minimum functions of state. With the advent of
independent treatment was given to it.
defence and has adopted the positive Independence a conscious effort
In many definitions of administrative
policy and as a welfare State has started towards the achievement of a
law, it was included in constitutional
undertaken to perform varied function. welfare State. There are several
law. Though in essence constitutional
principles, which are derived from the
(2) The judicial system proved law does not differ from Administrative
Constitutional Law, and they constitute
inadequate to decide and settle all Law inasmuch as both are concerned
the fundamental basis of
types of disputes. with functions of the Government and
Administrative Law. In fact among the
both are a part of public law in the
various sources of Administrative Law
(3) The legislative process was also modern State and the source of both
Constitution stands foremost besides
inadequate. It had no time and are the same, yet there is a distinction
the statutes, statutory instruments and
technique to deal with all the details. between the two.
precedents.

(4) There is scope for experiments in Prof. Wade writes : With the exercise
Our Constitution itself envisages a few
administrative process. Here a rule of Governmental power, Administrative
Administrative bodies mainly from the
can be made, tried for some time and Law is itself a part of Constitutional
point of view of Inter-State co-
if it is found defective, it can be altered Law. It has now become independent
operation and co-ordination and to
or modified within a short period. branch of study.
solve Inter-State problems. Examples
Prof. Dicey repudiated its existence in are the Inter-State Council, the
(5) The administrative authorities can
United Kingdom and his view Finance Commission, Union Public
avoid technicalities. Administrative
continued to occupy the minds of Service Commission and the Election
Law represents functional rather than
thinking persons till the advent of the Commission. Besides this, we have
a theoretical and legalistic approach.
several provisions in the Constitution
relating to control on the administrative law of the land administered by the rights in the written Constitution is of
powers. ordinary law courts. Everyone, little value in the absence of effective
whatever his position, right from a remedies of protection and
The inevitable and speedier growth of State Minister to a policeman, is enforcement.
powers of the administration under the governed by ordinary law of the land
garb of socialization have resulted in and personally liable for anything done Dicey's thesis had its own advantages
outstanding legal development of the by him contrary to that law, and is and merits. The doctrine of rule of law
twentieth century taking its force from subject to the jurisdiction of the proved to be an effective instrument in
Constitutional Law. Administrative Law ordinary courts of justice, civil or confining the administrative authorities
is very much related to Constitutional criminal. On this point Dicey within their limits. It served as a kind of
Law. It owes much to Constitutional distinguished `Droit Administrative' touchstone to judge and test
Law, in spite of the fact that the former from `Rule of Law'. He criticized the administrative actions. The doctrine of
has developed as an independent system of Droit Administrative in the rule of law expounded by Dicey
branch of study. In many ways France where there were separate was never fully accepted in England
Constitutional Law is the determining administrative tribunals for deciding even in his days. In 1885 there existed
factor of Administrative Law. cases between the government and `a long list of statutes which permitted
the citizen. On the basis of above the exercise of discretionary powers
Q. 4. What does the phrase "Rule of analysis he said that in England which could not be called in question
Law" signify ? How has it affected Administrative Law does not exist. by courts' and the Crown enjoyed the
the growth and development of immunity under the maxim `The King
Administrative Law ? (iii) Predominance of legal spirit - can do no wrong'. The shortcoming of
Thirdly, rule of law may be used as Dicey's thesis was that he not only
formula for expressing the fact that excluded arbitrary powers but also
with us the law of the Constitution, are insisted that the administrative
Ans. Rule of Law :- It simply means
not the source but the consequences authorities should not be given wide
that the law rules. Even in most
of the rights of individuals, as defined discretionary powers, as according to
autocratic form of Government, there
and enforced by the courts. him,
is some law, which regulates as to how
power of Government is to be `Wherever there is discretion, there is
exercised. One of the basic principles According to Dicey Administrative Law room for arbitrariness'. Thus, Dicey
of the English Constitution of U.S.A. is is based on two ideas which are failed to distinguish arbitrary power
the Rule of Law. This doctrine is repugnant to the spirit of Rule of Law, from discretionary power. Though
accepted in the Constitution of India. viz. : arbitrary power is inconsistent with the
The entire basis of Administrative Law concept of rule of law, discretionary
is the doctrine of the rule of law. (1) That the government and its power is not, if it is properly exercised.
servants possess special rights, The modern welfare State cannot work
According to Dicey, the rule of law is privileges and prerogatives as against properly without exercising
one of the fundamental principles of private citizens. An individual in his discretionary power.
the English Legal System. In his book dealings with the State does not stand
he attributed the following three on the same footing as that on which Q. 5. Explain Modern Concept of
meanings to the said doctrine : he stands in dealings with his "Rule of Law."
neighbour.
(i) Supremacy of law; Ans. The modern concept of rule of
(2) That government and its officials law is fairly wide and, therefore, sets
(ii) Equality before law; and
should be independent of and free an ideal for any government to
(iii) Predominance of legal spirit. from the jurisdiction of ordinary courts. achieve. The rule of law implies that
the functions of government in a free
(i) Supremacy of law - Explaining the Dicey states that in many countries society should be so exercised as to
first principle, Dicey states that rule of rights such as right to personal liberty, create conditions (social, political,
law means the absolute supremacy or freedom from arrest, freedom to hold economical, educational and cultural)
predominance of regular law as public meetings are guaranteed by a in which the dignity of man as an
opposed to the influence of arbitrary written Constitution; those rights are individual is upheld. Rule of law means
power or wide discretionary power. It the result of judicial decision. Thus, not only the adequate safeguards
excludes the existence of arbitrariness, Dicey emphasized the role of the against abuse of power but effective
of prerogative or even wide courts of law as guarantors of liberty government capable of maintaining
discretionary authority on the part of and suggested that the rights would be law and order. Though the concept of
the Government. secured more adequately if they were rule of law has all the merits, the only
enforceable in the courts of law than negative side of the concept is that
(ii) Equality before law - Secondly, it by mere declaration of those rights in a respect for law degenerates into
means equality before the law or equal document. According to him, mere legalism, which from its very rigidity
subjection of all classes to the ordinary incorporation or inclusion of certain works injury to the nation.
Dicey's concept of rule of law was not The maxim `The King can do no moments', stated Douglas, J. in United
accepted fully even in 1885 when he wrong' does not apply in India. There States v. Wunderlick, (1951) 342 US
formulated it. Today, Dicey's theory of is equality before the law and equal 98' when it has freed man from the
rule of law cannot be accepted in its protection of laws. unlimited discretion of some ruler.
totality. Davis gives seven principal Where discretion is absolute, man has
meanings of the term `Rule of Law' :- In the case of Director of Rationing always suffered'. It is in this sense that
and Distribution v. The Corporation of the rule of law may be said to be
(1) Law and order; Calcutta (1961) 1 SCR 158 = (AIR sworn enemy of caprice. Discretion, as
1960 SC 1355), Wanchoo J. stated Lord Mansfield stated it in classic
(2) Fixed rules; that in our country the rule of law terms in the case of John Wilkes,
prevails and our Constitution has (1770) 4 Burr 2528 at p. 2539, `means
(3) Elimination of discretion; guaranteed it by the provisions sound discretion guided by lay. It must
contained in Part III thereof as well as be governed by rule, not by humor; it
(4) Due process of law or fairness;
other provisions in other parts. In must not be arbitrary, vague and
(5) Natural law or observance of the Bishan Das v. The State of Punjab fanciful.' "
principles of natural justice; (1962) 2 SCR 69 = (AIR 1961 SC
1570), S. K. Das J. speaking for the Attribute of the rule of law has been
(6) Preference for Judges and ordinary Constitution Bench of Supreme Court specially highlighted in the decision of
courts of law to executive authorities deprecated action taken by the State Apex Court in the case of State of
and administrative tribunals; and and its officers on the ground that it Madhya Pradesh v. Thakur Bharat
was destructive of the basic principles Singh, (1967) 2 SCR 454 : (AIR 1967
(7) Judicial review of administrative of the rule of law. In G. Sadanandan v. SC 1170). In that case the State
action. State of Kerala 1966-3 SCR 590 = Government made an order under
(AIR 1966 SC 1925), Gajendragadkar Section 3 of the Madhya Pradesh
Rule of law under Constitution of India C. J. speaking for the Constitution Public Security Act, 1959, directing
- Dicey's rule of law has been adopted Bench observed that the paramount that the respondent (i) shall not be in
and incorporated in the Constitution of requirement of the Constitution was any place in Raipur District, (ii) shall
India. The preamble itself enunciates that even during emergency the immediately proceed to and reside in a
the ideals of justice, liberty and freedom of Indian citizens would not named town, and (iii) shall report daily
equality. In Chapter III of the be taken away without the existence of to a police station in that town. The
Constitution these concepts are justifying necessity specified by the respondent challenged the order by a
enshrined as fundamental rights and Defence of India Rules. Similarly in S. writ petition under Articles 226 and 227
are made enforceable. The G. Jaisinghani v. Union of India (1967) of the Constitution on the ground, inter
Constitution is supreme and all the 2 SCR 703 = (AIR 1967 SC 1427), alia, that Section 3 infringed the
three organ of the government; viz. Ramaswami J. speaking for the fundamental rights guaranteed under
legislature, executive and judiciary are Constitution Bench of Supreme Court Article 19 of the Constitution. The
subordinate to and have to act in observed as under : Court declared clauses (ii) and (iii) of
accordance with it. The principle of the order invalid on the ground that
judicial review is embodied in the "In this context it is important to clauses (b) and (c) of Section 3 (1) of
Constitution. If the executive or the emphasize that the absence of the Madhya Pradesh Public Security
government abuses the power vested arbitrary power is the first essential of Act on which they were based
in it or if the action is mala fide, the the rule of law upon which our whole contravened Article 19.
same can be quashed by the ordinary constitutional system is based. In a
courts of law. All rules, regulations, system governed by Rule of law, On appeal Supreme Court held that
ordinances, bye-laws, notifications, discretion, when conferred upon Section 8 (1) (b) violated Article 19 and
customs and usage are `laws' within executive authorities, must be confined as it was a pre-emergency enactment,
the meaning of Article 13 of the within clearly defined limits. The rule of it must be deemed to be void when
Constitution and if they are law from this point of view means that enacted. Section 3 (1) (b) was further
inconsistent with or contrary to any of decisions should be made by the held not to have revived as a result of
the provisions thereof, they can be application of known principles and the proclamation of emergency by the
declared as ultra vires by the Supreme rules and, in general, such decisions President. It was observed :
Court and by High Courts. No person should be predictable and the citizen
shall be deprived of his life or personal should know where he is. If a decision "All executive action which operates to
liberty except according to procedure is taken without any principle or the prejudice of any person must have
established by law. The executive and without any role it is unpredictable and the authority of law to support it.
the legislative powers of the States such a decision is the antithesis of a
and the Union have to be exercised in decision taken in accordance with the (1) The sovereignty of the people with
accordance with the provisions of the rule of law. (See Dicey - Law of the limited Government authority i. e. the
Constitution. The Government and the Constitution - Tenth Edn., Introduction Government must be conducted in
public officials are not above the law. ex). `Law has reached its finest accordance with the will of the majority
of the people. The people govern
themselves through their action to the prejudice of an individual organs of government e.g. the
representatives, whereas the official unless such action is authorised by Ministers should not sit in Parliament;
agencies of the executive Government law. A fortiori it would follow that under
possess only such powers as have the rule of law it is not permissible to (ii) That one organ of the government
been conferred upon them by the deprive a person of his life or personal should not control or interfere with the
people, liberty without the authority of law. exercise of its function by another
organ e.g. the Judiciary should be
(2) There is distribution of powers Q. 6. What do you understand by independent of the Executive or that
between the three organs of the State "Doctrine of Separation of Powers" Ministers should not be responsible to
- legislative, executive and judicial - ? Discuss its importance in relation Parliament; and
each organ having some check direct to Administrative Law.
or indirect on the other; and (iii) That one organ of the government
Ans. Doctrine of Separation of Power - should not exercise the functions of
(3) The rule of law which includes The doctrine of separation of powers another, e.g. the Ministers should not
judicial review of arbitrary executive emphasises the mutual exclusiveness have legislative powers.
actions. As pointed out by Dicey in his of three organs of government viz.-
`Introduction to the Study of the Law of Legislature, Executive and the Q. 7. Discuss the doctrine of
the Constitution', 10th Edn., at p. 202 Judiciary. Doctrine of separation is separation of powers in India.
the expression `rule of law' has three based on following principles:-
meanings, or may be regarded from Ans. In India, the doctrine cannot
three different points of view. `It means (a) That the same set of persons claim any historical background. The
in the first place, the absolute should not form part of more than one doctrine in its absolute rigidity is not
supremacy or predominance of regular of the three organs of government; inferable from the provisions of the
law as opposed to the influence of Constitution. However, Article 50
arbitrary power, and excludes the (b) That one organ of government provides for the separation of the
existence of arbitrariness, of should not control or interfere with the judiciary from the executive. As a
prerogative or even of wide exercise of functions of another organ, general practice, the executive has
discretionary authority on the part of e.g., judiciary should be independent been entrusted with the legislative and
the government.' At p. 188 Dicey of the executive; judicial powers.
points out:
(c) That one organ of government We have adopted Parliamentary from
`In almost every continental should not exercise the functions of of government based on the pattern of
community the executive exercises far the other two departments. British system. The President
wider discretionary authority in the exercises all executive powers but
Montesquieu- The doctrine of under Article 74 there is to be a
matter of arrest, of temporary
separation of powers was first Council of Ministers with the Prime
imprisonment, of expulsion from its
formulated by the French jurist Minister at the head to aid and advise
territory, and the like, than is either
Montesquieu. His statement of the President in the exercise of his
legally claimed or in fact exerted by the
doctrine has been thus interpreted as if functions. But like the American
government in England and a study of
the executive and the legislative are President he is the Supreme
European politics now and again
the same person or body of persons, Commander of the Armed Forces, Air
reminds English readers that wherever
there would be a danger of the Force and the Navy; he can declare
there is discretion there is room for
legislative enacting oppressive laws war himself, send armies abroad
arbitrariness, and that in a republic no
which the executive will administer to without consulting the Legislature. This
less than under a monarchy,
attain its own ends. Further he said has been contained in Article 53 of the
discretionary authority on the part of
that if judicial and executive powers Constitution but clause (2) of the said
the government must mean insecurity
were concentrated in one person or a Article provides that law shall regulate
for legal freedom on the part of its
body of persons, then there would be the exercise of such powers.
subjects. `We have adopted under our
no objectivity of law. And to Furthermore, the Parliament can
Constitution not the continental system
concentrate the powers of all the three confer the power on any other
but the British system under which the
organs in one person or body of authority.
rule of law prevails.
persons would mean to create virtual
In the case of Shrimati Indira Nehru despot of the State. Article 53 of the Constitution vests all
Gandhi v. Shri Raj Narain (1975) Supp executive powers in the President. The
According to Wade and Phillips, Constitution does not vest the powers
SCC 1 : (AIR 1975 SC 2299) Supreme
separation of Powers may mean three with the Indian President in the same
Court laid stress on the rule of law in
different things :- manner as the Constitution of the U.S.
our constitutional scheme.
vests the powers in the President
(i) That the same person should not thereof.
These authorities clearly highlight the
form part of more than one of the three
principle that executive authorities
cannot under the rule of law take any
The Constitution has recognised the In Kartar Singh v. State of Punjab AIR etc. (administrative); to make rules,
need for the separation of the Judiciary 1995 SC 1726 K. Ramaswamy, J. regulations and bye-laws, to fix prices,
from the Executive, as a Directive to stated : "It is the basic postulate under etc. (legislative); to adjudicate on
State Policy in Part IV. In certain the Indian Constitution that the legal disputes, to impose fine and penalty,
States this step has been taken on sovereign power has been distributed etc. (judicial). Schwartz rightly states
experimental basis. Besides a series between the legislature to make the that rule-making (quasi-legislative) and
of checks and balances are patent in law, the executive to implement the adjudication (quasi- judicial) have
Constitution and they can be law and the judiciary to interpret the become the chief weapons in the
summarized thus; law within the limits set down by the administrative armoury. Quasi is a
Constitution". In Golak Nath v. State of smooth cover, which we draw over our
(i) The Indian Legislative bodies are Punjab AIR 1967 SC 1643 Subba Rao, confusion as we might use a
not sovereign. Their rights of C.J. observed : counterpane to conceal a disordered
legislation are regulated; bed.
"The Constitution brings into existence
(ii) The various Lists ( I, II, and III) of different constitutional entities, namely, A question, which arises for our
the Constitution; the Union, the States and the Union consideration, is whether the functions
Territories. It creates three major performed by the executive authorities
(iii) The provision of Part III; instruments of power, namely, the are purely administrative, quasi-
Legislature, the Executive, and the judicial or quasi-legislative in
(iv) The possibility of judicial veto on
Judiciary. It demarcates their character. The answer is very difficult,
legislation; and
jurisdiction minutely and expects them as there is no precise, perfect and
(v) The requirement that the President to exercise their respective powers scientific test to distinguish these
and the Council of Ministers have to without overstepping their limits. They functions from one another. The courts
act in accordance with the should function within the spheres have not been able to formulate any
allotted to them." definite test for the purpose of making
Constitution, and the provision for
impeachment of the President, if he such classification. Yet, such
So if we study the constitutional classification is essential and
fails to act in accordance with the
provisions carefully, it is clear that the inevitable as many consequences flow
provisions of the Constitution.
doctrine of separation of powers has from it, e.g. if the executive authority
Furthermore, under Article 265 of the not been accepted in India in its strict exercises a judicial or quasi-judicial
sense. function, it must follow the principles of
Constitution the executive powers in
any State are to be exercised in such a natural justice and is amenable to the
Q. 8. "So the judicial function writ of certiorari or prohibition, but if it
way as to ensure compliance with the
merges into legislative and is an administrative, legislative or
Constitution. So far as the Judiciary is
legislative into administrative". quasi-legislative function, this is not so.
concerned, the Constitution provides
Discuss. If the action of the executive authority
for dismissal of a Judge on a motion in
that behalf passed under Article 174. is legislative in character, the
Ans. As observed earlier there are
So it will be noticed that these are requirement of publication, laying on
three organs of Government - (1)
checks and balances on various the table, etc. should be complied with,
Legislature, (2) Executive, and (3)
agencies of the State, which operate but it is not necessary in the case of a
Judiciary. These three organs
under the various provisions of the pure administrative action. Again, if the
essentially perform three classes of
Constitution. Therefore, it can be said function is administrative, delegation is
governmental functions :- (1)
that the Indian Constitution believes in permissible, but if it is judicial, it cannot
Legislative, (2) Executive or
checks and balances and not on any be delegated. An exercise of
administrative, and (3) Judicial. The
rigid separation of powers. It was legislative power may not be held
function of the legislature is to enact
rightly laid down by Mukherji, J., in invalid on the ground of
the law; the executive is to administer
Ram Jawaya v. State of Punjab, [AIR unreasonableness. It is, therefore,
the law and the judiciary is to interpret
1955 S. C. 549] that the Indian necessary to determine what type of
the law and to declare what the law is.
Constitution has not indeed recognised function the administrative authority
But as observed by the Supreme Court
the doctrine of separation of powers in performs.
in Jayantilal Amratlal v. F. N. Rana,
its absolute rigidity. Justice Das, in the AIR 1964 SC 648 (655) : (1964) 5
case of, Ram Krishna Dalmia v. Q. 9. What is meant by
SCR 294, it cannot be assumed that "Administrative Action" ? How do
Justice Tendolker, [1959 SCR 229], the legislative function are exclusively
has said "The Constitution does not you distinguish the administrative
performed by the legislature, executive act from quasi-judicial act ?
express the existence of the function by the executive and judicial
separation of powers and the doctrine function by the judiciary. Today, the Ans. Executive power is not defined in
does not form an essential basis or executive performs variegated the Constitution. Article 73 relating to
foundation stone of the constitutional function, viz., to investigate, to the Union of India and Article 163
framework as it does in the USA". prosecute, to prepare and to adopt relating to the State deal primarily with
schemes, to issue and cancel licences, the extent of executive power. In Rai
Sahib Ram Jawaya Kapur v. State of (4) Administrative functions may be fairly listen to both sides, for that is a
Punjab (1955) 2 SCR 225 : AIR 1955 delegated and sub-delegated unless duty lying upon every one who decides
SC 549, the then Chief Justice there is a specific bar. anything. But I do not think that they
Mukherjea pointed out (Para 12 of are bound to treat such a question as
AIR) :- (5) While taking a decision, an though it were a trial. They can obtain
administrative authority may not only information in any way they think best,
"It may not be possible to frame an consider the evidence adduced by the always giving a fair opportunity to
exhaustive definition of what executive parties to the dispute, but may also those who are parties in the
function means and implies. Ordinarily use its discretion. controversy for correcting or
the executive power connotes the contradicting any relevant statement
residue of Governmental functions that (6) The prerogative writs of certiorari prejudicial to their view. Similar
remain after legislative and judicial and prohibition are not always sentiments were also expressed by
functions are taken away." available against administrative Lord Haldane in Local Government
actions. Board v. Arlidge, 1915 AC 120 at p.
In Indian Railway Construction Co. Ltd. 132. The Lord Chancellor there stated,
v. Ajay Kumar, AIR 2003 SC 1843 it Distinction Between Administrative and
"When the duty of deciding an appeal
was observed that administrative Quasi Judicial Function - In State of
is imposed, those whose duty it is to
action is stated to be referable to A.P. v. S. M. K. Parasurama Gurukul,
decide it must act judicially. They must
broad area of governmental activities AIR 1973 SC 2237 it was observed
deal with the question referred to them
in which the repositories of power may that the test for determining whether a
without bias, and they must give to
exercise every class of statutory decision is an administrative one or
each of the parties the opportunity of
function of executive, quasi-legislative quasi- judicial has been clearly
adequately presenting the case made.
and quasi-judicial nature. It is trite law specified in a number of decisions of
The decision must be come to in the
that exercise of power, whether this Court. Essentially, they are three
spirit and with the sense of
legislative or administrative, will be set in number :
responsibility of a tribunal whose duty
aside if there is manifest error in the it is to mete out justice".
exercise of such power or the exercise 1. there must be a lis between the two
of the power is manifestly arbitrary. parties;
The principles distinguishing a quasi-
The Court will be slow to interfere in judicial function from one which is
2. the opinion should be formed on the
such matters relating to administrative ministerial were more precisely set out
objective satisfaction and should not
functions unless decision is tainted by in Province of Bombay v. K.S. Advani,
depend upon the subjective
any vulnerability like illegality, (1950) 1 SCR 621 : (AIR l950 SC 222)
satisfaction of the tribunal; and
irrationality and procedural impropriety. wherein it was observed (1) where
Whether action falls within any of the 3. there must be a duty to act judicially. there is a lis, there is prima facie in the
categories has to be established. Mere absence of anything in the statute to
assertion in that regard would not be As to what is a quasi-judicial as the contrary the duty of the authority to
sufficient. against an administrative or ministerial act judicially and the decision of the
function, Lord Loreburn, L.C. in Board authority is a quasi-judicial act; and (2)
Thus, administrative functions are of Education v. Rice, 1911 AC 179 at even if there is no lis inter parties and
those functions, which are neither p. 182, had stated, the contest between the party
legislative nor judicial in character. proposing to do the act and the subject
Generally, the following ingredients are "Comparatively recent statutes have opposing it, the final determination of
present in administrative functions : extended, if they have not originated, the authority will yet be a quasi-judicial
the practice of imposing upon act provided the authority is required
(1) An administrative order is generally departments or officers of State the by the statute to act judicially.
based on governmental policy or duty of deciding or determining the
expediency. questions of various kinds. In the Hon'ble Kania C.J. had observed that
present instance, as in many others, :-
(2) In administrative decisions, there is
what comes for determination is
no legal obligation to adopt a judicial "It is broadly stated that when a fact
sometimes a matter to be settled by
approach to the questions to be has to be determined by an objective
discretion, involving no law. It will, I
decided, and the decisions are usually test and when that decision affects
suppose, usually be of an
subjective rather than objective. rights of someone, the decision or act
administrative kind, but sometimes it
will involve a matter of law as well as a is quasi-judicial. This last statement
(3) An administrative authority is not
matter of fact, or even depend upon a overlooks the aspect that every
bound by the rules of evidence and
matter of law alone. In such cases the decision of the executive generally is a
procedure unless the relevant statute
Board of Education will have to decision of fact and in most cases
specifically imposes such an
ascertain the law and also to ascertain affects the rights of someone or the
obligation.
the facts. I do not add that in doing other. Because an executive authority
either they must act in good faith and has to determine certain objective
facts as a preliminary step in the
discharge of an executive function, it judicially, the absence of two such (ii) A lis inter parts is an essential
does not follow that it must determine parties is not decisive in taking the act characteristic of a judicial function, but
those facts judicially. When the of the authority out of the category of this may not be true of a quasi-judicial
executive authority has to form an quasi- judicial act if the authority is function.
opinion about an objective matter as a nevertheless required by the statute to
preliminary step to the exercise of a act judicially." (iii) A court is bound by the rules of
certain power conferred on it, the evidence and procedure while a quasi-
determination of the objective fact and Quasi-judicial functions : Illustrations judicial authority is not.
the exercise of the power based The following functions are held to be
thereon are alike matters of an quasi-judicial functions : (iv) While precedents bind a court a
administrative character and are not quasi-judicial authority is not.
amenable to the writ of certiorari." (a) Disciplinary proceedings against
students. (v) A court cannot be a judge in its own
These principles have since been cause (except in contempt cases),
acted upon by Apex Court in (b) Dismissal of an employee on the while an administrative authority
subsequent decisions such as ground of misconduct. vested with quasi-judicial powers may
Nagendra Nath Bora v. Commr. of be a party to the controversy but can
(c) Confiscation of goods under the still decide it.
Hills Division, 1958 SCR 1240 : (AIR
Sea Customs Act, 1878.
1958 SC 398); Radheshyam Khare v.
In Bharat Bank, Ltd., Delhi v.
State of Madhya Pradesh, 1959 SCR (d) Cancellation, suspension, Employees of the Bharat Bank, Ltd.,
1440 : (AIR 1959 SC 107); Gullapalli revocation or refusal to renew license Delhi, AIR 1950 SC 188, Hon'ble
Nageswara Rao v. Andhra Pradesh or permit by licensing authority. Supreme Court relied upon following
State Road Transport Corporation,
quotation :-
1959 Supp (1) SCR 319 : (AIR 1959 (e) Determination of citizenship.
SC 308), and Shivji Nathubhai v. "A true judicial decision presupposes
Union of India, (1960) 2 SCR 775 : Administrative functions : Illustrations an existing dispute between two or
(AIR 1960 SC 606). So following The following functions are held to be more parties, and then avolves four
principles can be laid down regarding administrative functions : requisites : (1) the presentation (not
quasi-judicial act : necessarily orally) of their case by the
(a) An order of prevention is held to be
parties to the dispute; (2) if the dispute
(i) that if a statute empowers an administrative function.
between them is a question of fact the
authority, not being a Court in the
(b) An order of acquisition or ascertainment of the last by means of
ordinary sense, to decide disputes
requisition of property. evidence adduced by the parties to the
arising out of a claim made by one
dispute and often with the assistance
party under the statute which claim is
(c) An order setting up a commission of argument by or on behalf of the
opposed by another party and to
of inquiry. parties on the evidence; (3) if the
determine the respective rights of the
dispute between them is a question of
contesting parties who are opposed to
(d) An order making or refusing to law, the submission of legal argument
each other, there is a lis and prima
make a reference under the Industrial by the parties; and (4) a decision
facie and in the absence of anything in
Disputes Act, 1947. which disposes of the whole matter by
the statute to the contrary it is the duty
a finding upon the facts in dispute and
of the authority to act judicially and the
(e) An order granting sanction to application of the law of the land to the
decision of the authority is a quasi-
prosecute a public servant. facts so found, including where
judicial act; and
required a ruling upon any disputed
(f) An order granting or refusing to question of law. A quasi-judicial
(ii) that if a statutory authority has
grant permission of sale in favour of decision equally presupposes an
power to do any act which will non-agriculturist under Tenancy Acts.
prejudicially affect the subject, then, existing dispute between two or more
although there are not two parties parties and involves (1) and (2), but
Q. 10. Distinguish between Judicial
apart from the authority proposing to does not necessarily involve (3) and
and Quasi-Judicial Action.
do the act and the subject opposing it, never involves (4). The place of (4) is
the final determination of the authority in fact taken by administrative
Ans. A quasi-judicial function differs
will yet be a quasi-judicial act provided sanction, the character of which is
from a purely judicial function in the
the authority is required by the statute following respects. determined by the Minister's free
to act judicially. choice."
(i) A quasi-judicial authority has some
In other words, while the presence of of the trappings of a court, but not all Q. 11. What do you understand by
two parties besides the deciding administrative instructions or
of them; nevertheless there is an
authority will prima facie and in the directions ?
obligation to act judicially.
absence of any other factor impose
upon the authority the duty to act
Ans. Subject to the provisions of the scope of `Delegated Legislation' In its second connotation, `delegated
Constitution, the executive power of and Reasons for its Growth. legislation' means and includes all
the Union and the States extends to all rules, regulations, bye-laws, order, etc.
matters in respect of which Parliament Ans. Today, the bulk of the law which
or State Legislatures have power to governs people come not from the Reasons for Growth of Delegated
make laws (Articles 72 and 162). The legislature but from the chambers of Legislation - Many factors are
executive power includes both the administrators. Delegated legislation responsible for the rapid growth of
determination of policy as well as (or administrative rule-making, a quasi- delegated legislation in every modern
carrying it into execution. legislative action) in simple terms democratic State. The traditional
refers to all law-making which takes theory of `laissez faire' has been given
Thus, the power to issue instructions place outside the legislature and is up by every State and the old `Police
or directions flows from the general generally expressed as rules, State' has now become a `welfare
executive power. regulations, orders, bye-laws, State'. Because of this radical change
directions, scheme, etc. In India, the in the philosophy as to the role to be
Administrative instructions or term commonly employed is also played by the State, its functions have
directions may be specific or general "subordinate legislation"; it conveys the increased. Consequently, delegated
and directory or mandatory. What kind idea that the authority making the legislation has become essential and
of instructions it is, depends generally legislation is subordinate to the inevitable.
on the provisions of the statute, which legislature. Delegated legislation is
authorize the administrative agency to different from the executive legislation, The factors responsible for the growth
issue instructions. Instructions, which where the executive may have law- of delegated legislation are :
are not issued under any statutory making powers as vast and original as
power, are considered as directory, that of the legislature e.g. Ordinance- (a) Pressure upon Parliamentary Time
and hence are unenforceable, not making power of President and : As a result of the expanding horizons
having the force. Governors. of State activity, the bulk of legislation
is so great that it is not possible for the
In Raman and Raman v. State of The simple meaning of the expression legislature to devote sufficient time to
Madras, AIR 1959 SC 694 the `delegated legislation' may be given as discuss all the matters in detail.
Supreme Court came to the conclusion under : Therefore, legislature formulates the
that the administrative instructions, general policy - the skeleton - and
despite their issuance under section "When the function of legislation is empowers the executive to fill in the
43-A of the Motor Vehicles Act, 1939 entrusted to an organ other than the details - thus giving flesh and blood to
do not have the force of law. However, legislature by the legislature itself, the the skeleton so that it may live - by
in Jagjit Singh v. State of Punjab, legislation made by such organ is issuing necessary rules, regulations,
(1978) 2 SCC 196 the Supreme Court called delegated legislation." bye-laws etc.
made administrative instructions
enforceable to get a Scheduled Caste According to M.P. Jain, the term (b) Technicality : Sometimes, the
candidate appointed in Civil Service. `delegated legislation' is used in two subject matter on which legislation is
senses : it may mean (a) exercise by a required is so technical in nature that
In Union of India v. Anglo Afgan subordinate agency of the legislative the legislator, being himself a common
Agencies, AIR 1968 SC 778, an Export power delegated to it by the man, cannot be expected to appreciate
Scheme was declared by the Textile legislature, or (b) the subsidiary rules and legislate on the same, and the
Commissioner for providing certain themselves which are made by the assistance of experts may be required.
incentives to exporters of woollen subordinate authority in pursuance of Members of Parliament may be the
goods. Relying on the representation the power conferred on it by the best politicians but they are not
in the Scheme, petitioner exported legislature. experts to deal with highly technical
sizable quantity of goods but was not matters, which are required to be
granted import certificate. When this In its first application, it means that the handled by experts. Here the
action was challenged the court held authority making the legislation is legislative power may be conferred on
that the scheme was enforceable. subordinate to the legislature. An experts to deal with the technical
authority other than the legislature problems.
In this way the Law relating to exercise of the powers delegated or
administrative instructions or directions conferred on them by the legislature it (c) Flexibility : At the time of passing
as regards their statutory status and exercises the legislative powers. This any legislative enactment, it is
enforceability is in highly nebulous is also known as `subordinate impossible to foresee all the
state. The judicial approach in this legislation', because the powers of the contingencies, and some provision is
respect has been residual and authority which makes it are limited by required to be made for these
variegated. the statute which conferred the power unforeseen situation demanding
and consequently, it is valid only exigent action. A legislative
Q. 12. What is meant by "Delegated insofar as it keeps within those limits. amendment is a slow and
Legislation ?" Discuss nature and cumbersome process, but by the
device of delegated legislation, the better position to adapt the Act to enactment; so it delegates to an
executive can meet the situation special circumstances. Delegated appropriate executive authority the
expeditiously. legislation permits utilization of power to make rules. But before doing
experience and consultation with so, the legislature itself enacts the law
(d) Experiment : The practice of interests affected by the practical under which the power is delegated
delegated legislation enables the operation of statutes. Rules and and lays down the essential policy of
executive to experiment. This method Regulations made by reason of the the Act and all such essential matters
permits rapid utilization of experience specific power conferred by the Statute which require to be included in the Act
and implementation of necessary to make Rules and Regulations itself. Having thus provided for all such
changes in application of the establish the pattern of conduct to be essential matters in the enactment
provisions in the light of such followed. Regulations are in aid of itself, the legislature leaves it to a
experience, e.g. in road traffic matters enforcement of the provisions of the subordinate authority, which may be
an experiment may be conducted and Statute. The process of legislation by some appropriate executive authority,
in the light of its application necessary departmental Regulations saves time to frame detailed rules to carry out the
changes could be made. and is intended to deal with local purposes of the Act. These rules are
variations and the power to legislate by ancillary and subserve the purposes of
(e) Emergency : In times of statutory instrument in the form of the enactment. They cannot go against
emergency, quick action is required to Rules and Regulations is conferred by the provisions of the enactment and
be taken. The legislative process is not Parliament. The main justification for cannot in any manner make any
equipped to provide for urgent solution delegated legislation is that the change in the provision of the
to meet the situations. Delegated Legislature being overburdened and enactment and are merely for the
legislation is the only convenient - the needs of the modern day society purpose of carrying out the essential
indeed the only possible - remedy. being complex it cannot possibly policy, which the legislature has laid
foresee every administrative difficulty down in the enactment itself. These
(f) Complexity of Modern
that may arise after the statute has rules are called delegated legislation
Administration : The complexity of
begun to operate. Delegated and it is important to remember that
modern administration and expansion
legislation fills those needs. this delegated legislation cannot in any
of the function of the State to the
way change the provisions of the
economic and social sphere have In "Jullundur Rubber Goods enactment itself and must only be
rendered it necessary to resort to new Manufacturers' Association, M/s. v. resorted to for carrying out the
forms of legislation and to give wide Union of India" AIR 1970 SC 1589 it purposes of the legislation itself. Such
powers to various authorities on was observed that it is well established being the nature of delegated
suitable occasions. that essential legislative functions legislation we have to see whether the
consist of the determination of the impugned provisions of Section 3 are
In "St. Johns Teachers Training
legislative policy and its formulation as in accord with these principles. If they
Institute v. Regional Director, National
a binding rule of conduct and cannot are not and if the legislature has
Council for Teacher Education" AIR
be delegated by the legislature. What conferred powers on the State
2003 SC 1533 it was observed that the
can be delegated is the task of Government beyond this, such
power to make subordinate legislation
subordinate legislation necessary for conferment of power cannot be
is derived from the enabling Act and it
implementing the purpose and objects delegated legislation and is really an
is fundamental that the delegate on
of an enactment. Where legislative abdication of its power by the
whom such a power is conferred has
policy is enunciated with sufficient legislature and transfer of it to the
to act within the limits of authority
clearness or a standard is laid down executive.
conferred by the Act. Rules cannot be
the courts will not interfere. It will
made to supplant the provisions of the
depend on consideration of the Q. 13. What are the forms of
enabling Act but to supplement it.
provisions of a particular Act including Delegated Legislation ?
What is permitted is the delegation of
its preamble as to the guidance, which
ancillary or subordinate legislative Ans. Delegated Legislation may take
has been given, and the legislative
functions, or, what is fictionally called, several forms. They may be normal or
policy, which has been laid down in the
a power to fill up details. The of exceptional type; they may be usual
matter.
Legislature may, after laying down the or unusual; positive or negative;
legislative policy confer discretion on In "Arnold Rodricks v. State of skeleton or Henry VIII clause. Broadly
an administrative agency as to the Maharashtra" AIR 1966 SC 1788 it speaking, delegated legislation may be
execution of the policy and leave it to was observed that Delegated classified on the following forms :
the agency to work out the details legislation is a well-known modern
within the framework of policy. The device. In view of the complexities of (1) Colonial - The powers of self-
need for delegated legislation is that modern life it is not possible for the government entrusted to the colonies
they are framed with care and legislature to find time to make all the and other dependencies of the Crown
minuteness when the statutory detailed rules which are necessary to are subject to the control of the
authority making the Rule, after carry out the purposes of an Imperial Legislature. The Parliament
coming into force of the Act, is in a Westminster may repeal, alter, or
supersede any colonial enactment, has been found possible to entrust this contains no element of delegation of
and such enactments constitute, power to autonomous bodies. legislative power and is, therefore, not
accordingly, the first and most open to attack on the ground of
important species of subordinate Q. 14. Distinguish between excessive delegation, delegated
legislation. It has been held, however, delegated legislation and legislation does confer some
that for the purpose of the maxim conditional legislation. legislative power on some outside
Delegates non poets delegate a authority and is therefore open to
colonial Legislature is not a mere Ans. Delegated Legislation and attack on the ground of excessive
delegate of the Imperial Parliament Conditional Legislation :- Distinction - delegation.
and hence can delegate its legislative Where the Legislature lays down the
power to other bodies that in turn are principle of a particular statute and In "Hamdard Dawakhana v. Union of
dependent upon it. then leaves the following to the India" AIR 1960 SC 554 it was
Executive or to the delegate, it will be observed that the distinction between
(2) Executive - The essential function called `Conditional Legislation'. It conditional legislation and delegated
of the Executive is to conduct the includes the following - legislation is this, that in the former the
administrative departments of the delegate's power of that of determining
State, but it combines with the certain (1) The time when provision should be when a legislative declared rule of
subordinate legislative powers which enforced, conduct shall become effective, and
have been expressly delegated to it by the latter involves delegation of rule
(2) The period during which it is to be
Parliament, or certain to it by the making power which constitutionally
implemented or suspended, and
common law Statutes, for example may be exercised by the administrative
frequently entrust to some department (3) The place where it should be agent. This means that the legislature
of the executive government the duty applied. having laid down the broad principles
of supplementing the statutory of its policy in the legislation can then
provisions by the issue of more In delegated legislation, the delegate leave the details to be supplied by the
detailed regulations bearing out the completes the legislation by supplying administrative authority. In other words
same matter. the details within the limits prescribed by delegated legislation the delegate
by the statute. In case of conditional completes the legislation by supplying
(3) Judicial - In the same way the legislation, the power of the legislation details within the limits prescribed by
judicature possesses certain delegated is exercised by the Legislature the statute and in the case of
legislative powers. The superior Courts conditionally leaving it to the discretion conditional legislation the power of
have the power of making rules for the of the external authority, the time and legislation is exercised by the
regulation of their own procedure. This manner of carrying the legislation into legislature conditionally leaving to the
is judicial legislation in the true sense effect, as also the determination of the discretion of an external authority the
of the term, differing in this respect area to which it is to extend. time and manner of carrying its
from the so-called legislative actions of legislation into effect as also the
the Courts in creating new law by way In "State of T.N. v. K. Sabanayagam" determination of the area to which it is
of precedent. AIR 1998 SC 344 it was observed that to extend.
in the case of conditional legislation,
(4) Municipal.- Municipal authorities the legislation is complete in itself but Thus when the delegate is given the
are entrusted by the law with limited its operation is made to depend on power of making rules and regulations
and subordinate powers of fulfilment of certain conditions and in order to fill in the details to carry out
establishing special law for the districts what is delegated to an outside and subserve the purposes of the
under their control. The enactments so authority, is the power to determine legislation the manner in which the
authorised are termed bye-laws, and according to its own judgment whether requirements of the statute are to be
this form of legislation may be or not those conditions are fulfilled. In met and the rights therein created to
distinguished as municipal. case of delegated legislation proper, be enjoyed, it is an exercise of
some portion of the legislative power delegated legislation. But when the
(5) Autonomous - All the kinds of legislation is complete in itself and the
of the Legislature is delegated to the
legislation which we have hitherto legislature has itself made the law and
outside authority in that, the
considered proceed from itself, either the only function left to the delegate is
Legislature, though competent to
in its Supreme or in one or other of its to apply the law to an area or to
perform both the essential and
many subordinate departments. But determine the time and manner of
ancillary legislative functions, performs
this is not necessarily limited to the carrying it into effect, it is conditional
only the former and parts with the
State. It is accepted by the State as a legislation.
latter, i.e., the ancillary function of
sufficient legal ground for giving effect
laying down details in favour of
to those new principles in its courts of Q. 15. State the permissible or
another for executing the policy of the
justice. The great bulk of enacted laws constitutional limits to the
statute enacted. The distinction
are promulgated by the State in its delegation of legislative power by
between the two exists in this that
own person. But in exceptional cases it Indian Legislature. Explain the basis
whereas conditional legislation
of those limits.
Ans. Delegated legislation as (vi) Sub-delegation of legislative 1543 it was observed that the question
discussed above means delegation of powers in order to be valid must be whether a particular piece of delegated
function of legislation to organs other expressly authorised by the parent Act. legislation - whether a rule or
than legislature by legislature itself and regulation or other type of statutory
is generally expressed as Rules, It will be useful to reproduce here a instrument - is in excess of the power
regulations, bye-laws etc. Delegated passage from Administrative Law by of subordinate legislation conferred on
legislation is well recognized by Wade and Forsythia (Eighth Edition the delegate has to be determined with
Constitution of India as Article 13(3) 2000 at page 839) : reference only to the specific
defines the "Law" as including any provisions contained in the relevant
ordinance, order, bye-laws rule etc. "Administrative legislation is statute conferring the power to make
having force of law. There is nothing in traditionally looked upon as a the rule regulation, etc. and also the
Constitution prohibiting legislature to necessary evil, an unfortunate but object and purpose of the Act as can
delegate. However, at the same time it inevitable infringement of the be gathered from the various
is well settled that essential and separation of powers. But in reality it is provisions of the enactment. It is
primary legislative functions must be no more difficult to justify it in theory exclusively within the province of the
performed by legislature itself and than it is possible to do without it in legislature and its delegate to
cannot be delegated to executive. practice. There is only a hazy determine, as a matter of policy, how
borderline between legislation and the provisions of the Statute can best
There is no agreed formula with administration, and the assumption be implemented and what measures,
reference to which one can decide the that they are two fundamentally substantive as well as procedural
permissible limits of delegation or that different forms of power is misleading. would have to be incorporated in the
when the law will be bad on account of There are some obvious general rules or regulations for the efficacious
`excessive delegation'; thus every differences. But the idea that a clean achievement of the objects and
case is decided in its special setting. division can be made (as it can be purposes of the Act. It is not for the
The tendency on the part of the courts more readily in the case of the judicial Court to examine the merits or
is to uphold the delegation and it is power) is a legacy from an older era of demerits of a policy laid down by
only rarely that a statutory provision political theory. It is easy to see that regulation-making body because its
may be struck down on the ground of legislative power is the power to lay scrutiny has to be limited to the
`excessive delegation'. down the law for people in general, question as to whether the impugned
whereas administrative power is the regulations fall within the scope of the
Constitutional/Permissible limits on the power to lay down the law for them, or regulation-making power conferred on
delegated legislation apply the law to them, in some the delegate by the Statute. Any
particular situation. ................." drawbacks in the policy incorporated in
(i) Essential legislative function i.e.
a rule or regulation will not render it
laying the policy of the Act and The question whether any particular
ultra vires and the Court cannot strike
enacting that policy into a binding rule legislation suffers from excessive
it down on the ground that, in its
of conduct, cannot be delegated by the delegation has to be decided having
opinion, it is not a wise or prudent
legislature. regard to the subject matter, the
policy, but is even a foolish one, and
scheme, the provisions of the Statutes
(ii) While what constitutes an essential that it will not really serve to effectuate
including its preamble and the facts
the purposes of the Act.
feature cannot be delineated in detail, and circumstances in the background
it certainly can't include a change of of which the Statute is enacted. (See The constitutionality of the regulations
policy. Registrar, Co-operative Societies v. K. has to be adjudged only by a three-
Kunjabmu, AIR 1980 SC 350 and fold test, namely, (1) whether the
(iii) After the legislature has exercised State of Nagaland v. Ratan Singh, AIR
its essential legislative functions, it can provisions of such regulations fall
1967 SC 212). It is also well settled within the scope and ambit of the
delegate non-essentials, however that in considering the vires of
numerous and significant they may be. power conferred by the statute on the
subordinate legislation one should delegate; (2) whether the
start with the presumption that it is rules/regulations framed by the
(iv) The delegated legislation must be
intra vires and if it is open to two delegate are to any extent inconsistent
consistent with the parent Act and
constructions, one of which would with the provisions of the parent
must not violate legislative policy and
make it valid and other invalid, the enactment; and lastly (3) whether, they
guidelines. Delegate cannot have
Courts must adopt that construction infringe any of the fundamental rights
more legislative powers than
which makes it valid and the legislation or other restrictions or limitations
delegator.
can also be read down to avoid its imposed by the Constitution.
(v) The delegated legislation in order being declared ultra vires. ("St. Johns
to be valid must not be unreasonable Teachers Training Institute v. Regional In "Hukam Chand v. Union of India"
and must not violate any procedural Director, National Council for Teacher AIR 1972 SC 2427 it was observed
safeguards if provided in the parent Education" AIR 2003 SC 1533) In that unlike Sovereign Legislature
Act. "Maharashtra S. B. O. S. and H.S. which has power to enact laws with
Education v. Paritosh" AIR 1984 SC
retrospective operation, authority scheme, the provisions of the Statutes the policy and purpose of the
vested with the power of making including its preamble and the facts enactment, the mere fact that
subordinate legislation has to act and circumstances in the background legislation is skeleton or the fact that a
within the limits of its power and of which the Statute is enacted. It is discretion is left to those entrusted with
cannot transgress the same. The initial also well settled that in considering the administering the law, affords no basis
difference between subordinate vires of subordinate legislation one either for the contention that there has
legislation and the statute laws lies in should start with the presumption that been an excessive delegation of
the fact that a subordinate law making it is intra vires and if it is open to two legislative power as to amount to an
body is bound by the terms of its constructions, one of which would abdication of its function or that the
delegated or derived authority and that make it valid and other invalid, the discretion vested is internalized and
court of law, as a general rule, will not Courts must adopt that construction unguided as to amount to a carte
give effect to the rules, thus made, which makes it valid and the legislation balance to discriminate."
unless satisfied that all the conditions can also be read down to avoid its
precedent to the validity of the rules being declared ultra vires. Q. 16B. What are the powers, which
have been fulfilled. cannot be delegated by the
In "Quarry Owners Association v. State Legislature to the Executive ?
Q. 16A. What do you mean by of Bihar" AIR 2000 SC 2870 it was
excessive delegation ? Does the observed that in order to adjudicate, Ans. There are certain powers which
court disapprove the practice of whether any delegation of power is cannot be delegated to the Executive,
excessive delegation ? unbridled or excessive, the historical for such delegation would arm the
background of similar provisions which Executive with such powers as would
Ans. It is well settled that essential preceded the impugned provision be contrary to democratic tradition and
and primary legislative functions must should be kept in mind, as it is also a fundamental Constitution principles. As
be performed by legislative itself and relevant consideration. Under the a matter of public policy restrictions
they cannot be delegated to the earlier Act of 1948 the extraction of are imposed upon the Legislature
executive. It is now settled by the minor minerals was left to be regulated against delegation of powers in
majority judgment in the Delhi Laws by the Provincial Governments. That following matters :
Act case and a number of later cases pattern was approved by Parliament in
that there is a limit beyond which the new Act. That being so even on (1) Penal Laws - Under delegated
delegation may not go. The limit is that consideration of historical background authority no rule or regulation should
essential legislative powers of there is nothing wrong to delegate to be made with a view to declare an act
legislation cannot be delegated. If the the State Government power to fix rate as an offence and make it punishable.
Legislature delegates the essential of royalty/dead rent for the minor If it is to be done it should be expressly
legislative function it is in excess of minerals. laid down in the parent Act. The limits
what it should do. It consists in of such delegation should also be
delegating the power to determine or In Registrar of Cooperative Societies clearly provided. In absence of such
choose the legislative policy and of v. K. Kunjabamu, AIR 1980 SC 350, delineation the Supreme Court would
formally enacting the policy into a Supreme Court reiterated that, "The turn down the law as a case of
binding rule of conduct. power to legislate carries within the excessive delegation.
power to delegate" but "excessive
In this case the latter part of Section 2 delegation may amount to abdication", (2) Retrospective Effects - The
of Part C States (Laws) Act, 1950, and `delegation unlimited may invite Executive should not be empowered to
which provided that provision may be despotism uninhibited". Therefore, the make rules to the retrospective effect,
made in any enactment so extended principle is that "The Legislature since it is purely legislative act. If it is
for the repeal or amendment of any cannot delegate its legislative function. all required under any circumstance, it
corresponding law which is for the time Legislature must be laying down policy should have been clearly provided in
being applicable to the Part C State, and principle and delegate it may to fill the Act and the delegated authority
was declared ultra vires; because the in detail and carry out policy." should have been clearly mentioned in
law to repeal or abrogate existing law the Act. No rule should operate from
is an essential legislative function, Moreover similar principles were laid any date prior to the date of
which cannot be delegated to the down by the Supreme Court in Gwalior commencement of the Act, under
executive. Rayon Mills Mfg. Ltd. v. Asstt. which they are framed.
Commissioner of Sales Tax and other
In St. Johns Teachers Training (AIR 1974 SC 1660) and Avinder (3) Substantive power to oust the
Institute v. Regional Director, National Singh v. State of Punjab (AIR 1979 SC jurisdiction of Courts - The range of
Council for Teacher Education, AIR 321) In Jyoti Prasad v. Administrator jurisdiction of the courts and the
2003 SC 1533 it was observed that the for the Union Territory of Delhi and administration of justice, are matters of
question whether any particular others (AIR 1961 SC 1602) the purely legislative character. It is for the
legislation suffers from excessive Supreme Court held "So long as the Legislature to deal with such matters.
delegation has to be decided having Legislature indicates in the operative No administrative body should have
regard to the subject-matter, the provisions of the statute with certainty, power in delegated capacity to make
any change in the jurisdiction of any one organ of the government cannot but certainly applies in case of sub-
court of law. encroach upon the powers of another). delegation (i.e. where the rule making
Therefore, legislative powers cannot authority delegates to itself or to some
(4) Monetary and Financial matters - be delegated. other subordinate authority a further
The matters relating to money should power to issue rules). The maxim was
be exclusively dealt with by the However, in Re Delhi Laws Act, the originally invoked in the context of
representatives of people, i.e., Lok Supreme Court observed that Indian delegation of judicial power and
Sabha. The Committee on Parliament was never considered an implied that in the entire process of
Subordinate Legislation disapproved agent of anybody and so the doctrine adjudication a Judge must act
the practice of empowering the `delegatus non potest delegare' has no personally except in so far as principle
Executive to frame rules for granting application. The doctrine of separation behind the maxim is that a discretion
allowances and prescribing the of powers, as applied in the America conferred by the statute on a authority
conditions under which allowances against excessive delegation, cannot must be exercised by the authority
could be claimed. If the Executive is to be applied in the same way in India. alone unless contrary intention
be given such a rule making power, appears from the language, scope or
the rules should not operate before In "Union of India v. P. K. Roy" AIR object of the statute. However, keeping
they are approved by the affirmative 1968 SC 850 it was observed that the in view the imperatives of the modern
procedure in the House. maxim `delegatus non potest delegare' administration the courts are slow in
deals with the extent to which a applying the maxim when there is
(5) Taxation - Under Article 265, it is statutory authority may permit another question of exercise of administrative
laid down that `No tax shall be levied to exercise a discretion entrusted by discretionary powers (Sahani Silk Mills
or collected except by authority of law'. the statute to itself. It is true that v. ESI Corpn. (1994) 5 SCC 346).
Here the term law means statute law, delegation in its general sense does
that is an Act of the Legislature. not imply a parting with statutory Q. 18. How is delegated legislation
According to a Travancore High Court powers by the authority which grants controlled ? Discuss the judicial
judgment in 1953, no tax can be levied the delegation, but points rather to the control of Delegated Legislation.
either by executive action or by the conferring of an authority to do things
resolution of House. Statutory rules which otherwise that administrative Ans. Control of delegated Legislation
cannot introduce taxes. authority would have to do for itself. If, In almost all countries in the world,
however, the administrative authority technique of delegated Legislation is
(6) Compensation - The principles on named in the statute has and retains in resorted to and some legislative
which and the manner in which its hands general control over the powers have been delegated to
compensation is to be determined in activities of the person to whom it has executives by legislator.
case of compulsory acquisition or entrusted in part the exercise of its
requisition by State, should be in statutory power and the control The practice of delegation of legislative
accordance with law. Although, now exercised by the administrative power to the administrative authorities
after XIVth amendment, the question authority is of a substantial degree, is now accepted as settled one,
of amount of compensation has there is in the eye of law no because it has proved the only efficient
become non- judicial, yet the principle "delegation" at all and the maxim means to meet the exigencies of
and manner on which compensation is "delegates non potest delegare" does various situations, which the
to be awarded are matters of essential not apply. In other words, if a statutory Legislature has failed to face properly.
legislative function, which are primarily authority empowers a delegate to But as the quoted proverb goes
legislative concerns. The Legislature undertake preparatory work and to `Power corrupts', the executive, having
should not delegate such functions to take an initial decision in matters been armed with doubled powers, i.e.
the Executive. Executive should not be entrusted to it but retains in its own executive as well as rule making
empowered to exercise any discretion hands the power to approve or dis powers may become arbitrary and
in such cases, because that would arm approve the decision after it has been abuse the powers so given, without
the Executive with extraordinary taken, the decision will be held to have any fear of check or control. In order to
powers, making it dominant one. been validly made if the degree of avoid the apprehension of its being
control maintained by the authority is arbitrary, it is very necessary that the
Q. 17. What do you understand by close enough for the decision to be exercise of delegated legislative
"doctrine of delegatus non- potest regarded as the authority's own. powers should be subjected to judicial
delegare" scrutiny and parliamentary control.
It is now almost settled that the
Ans. The doctrine means that a legislature can delegate its powers of This basic problem in the area of
delegate cannot further delegate its law making after indicating the policy. delegated Legislation is that of
powers to any other agency (i.e. one Therefore, the maxim `delegatus non devising suitable controls and
agent cannot lawfully appoint another potest delegare' which means that a safeguards so that advantage of this
to perform the duties of agency). The delegate cannot further delegate is not technique may available, while the
doctrine is a necessary corollary of the attracted in case of delegation by the dangers and risks of abuse inherent in
doctrine of separation of powers (i.e. legislature (i.e. delegated legislation) it may be minimized.
The controls of delegated Legislation The court will upset subordinate manufacturer. The court accepted the
operate at two levels : First at the point legislation unlike an Act of the contention that the requirement of
of delegation of power by legislature; Parliament, where it contains address under Rule 32 is beyond the
the question here is, how much power provisions not authorised by the power of enabling Act which restricted
should the legislature be permitted to Statute, or where it has exceeded the to "quantity and quality" only.
delegate ? Second at the point of limits laid down in the Parent Statute.
exercise of delegated power by The Administrative authorities are In the same manner in Ibrahim v.
administration; the question here being required to act within the limits laid Regional Transport Authority (AIR
subject to what restraints and down in the Statute. It is the duty of the 1953 SC 79), the court declared the
safeguards should the delegate court to construe the Statute and find rules framed by the administrative
function in exercising the delegated out whether the powers have been authority for fixing sites for the bus
powers ? It is the control at the second exercised properly. stand as invalid being in excess of the
delegating legislation that is more power conferred by enabling Act which
important. In "Shri Sitaram Sugar Co. Ltd., M/s. v. authorised the agency to make rules
Union of India" AIR 1990 SC 1277 it for the "control of transport vehicles".
The control mechanism of delegated was observed that Power delegated by
Legislation comprises of parliamentary statute is limited by its terms and In State of Karnataka v. Vanesh
control, procedural control subordinate to its objects. The Kamath (AIR 1983 SC 550), court
(consultation, publication, etc.) and delegate must act in good faith, struck down the Rule 5(2) as being
judicial control. The main thrust of reasonably, intra vires the power inconsistent with the enabling Act. This
such control is to ensure that the limits granted, and on relevant consideration Rule provided that even though a
of delegation are precisely defined, the of material facts. All his decisions, person has passed the test for driving
delegated power is properly exercised whether characterized as legislative or heavy motor vehicles he cannot obtain
and the delegated legislation is administrative or quasi-judicial, must a licence unless he had already
adequately published. be in harmony with the Constitution possessed a licence for and has 2
and other laws of the land. They must years experience for driving medium
Q. 19. Discuss the Judicial Control be "reasonably related to the purposes motor vehicle. This Rule was found to
of Delegated Legislation in India. of the enabling legislation". If they are be in direct conflict with Section 7 (7)
manifestly unjust or oppressive or (a) of the enabling Motor Vehicles Act,
Ans. Judicial Review of legislation has outrageous or directed to an 1939 which had provided that a person
always been an essential feature of unauthorised end or do not tend in who passes the test in driving a heavy
Indian Constitution law. The delegated some degree to the accomplishment of vehicle is to be deemed also to have
Legislation also does not go beyond the objects of delegation, courts might passed the test in driving any medium
judicial review by Supreme Court and well say, "Parliament never intended to vehicle.
High Courts. Judicial review upholds give authority to make such rules; they
the rule of law. Judicial review tend to are unreasonable and ultra vires". The In "Income-tax Officer v. M. C.
be more effective because the courts doctrine of judicial review implies that Ponnoose" AIR 1970 SC 385 it was
do not merely recommend but can the repository of power acts within the observed that "The Parliament can
strike down a rule if it is ultra vires the bounds of the power delegated and he delegate its legislative power within the
enabling Act or the Constitution. does not abuse his power. He must act recognised limits. Where any person
Judicial review cannot be foreclosed reasonably and in good faith. It is not or authority to which such powers have
by any manner. Courts can check the only sufficient that an instrument is been delegated by the legislature
validity or otherwise of delegated intra vires the parent Act, but it must makes any rule or regulation it may or
Legislation mainly by applying also be consistent with the may not be possible to make the same
following tests. constitutional principles so as to give retrospective operation. It
will depend on the language employed
(i) Substantive ultra vires. In Dwarka Nath v. Municipal Corp. in the statutory provision, which may in
(AIR 1971 SC 1844), the Supreme express terms or by necessary
(ii) Procedural ultra vires. implication empower the authority
Court held Rule 32 framed under
Prevention of Food Adulteration Act, concerned to make a rule or regulation
Substantive ultra vires. - When a
1954 as ultra vires of the Act being in with retrospective effect. But where no
subordinate legislation goes beyond
excess of the power conferred. The such language is to be found it has
what the delegate is authorised to
Act authorised the government for been held by the Courts that the
enact, it is known as substantive ultra
restricting the packing and labeling of person or authority exercising
vires.
any food article with a view to subordinate legislative functions
Substantive ultra vires means that the preventing the public from being cannot make a rule, regulation or bye-
delegated legislation goes beyond the misled as to quantity and quality of the law which can operate with
scope of the authority conferred on it article. Rule 32 provided that there retrospective effect."
by the parent statute or by the shall be specified on every label name
and business address of the Procedural ultra vires - When a
Constitution.
subordinate legislation fails to comply
with certain procedural requirements subjects under a law of which they had be in a better position to appreciate a
prescribed by the parent Act or by the no knowledge and of which they could particular situation. The administration
general law, it is known as procedural not, even with the exercise of is not always the repository of ultimate
ultra vires. reasonable diligence, have acquired wisdom; it learns from the suggestions
any knowledge. However, the court left made by outsiders and often benefits
While framing rules, bye-laws, it vague as to what channels of from that advice.
regulations, etc., the parent Act or publication were to be `adopted'.
enabling statute may require the Q. 20. Discuss Legislative Control
delegate to observe a prescribed (ii) Necessity of publication From the over Delegated Legislation.
procedure, such as holding of point of view of the individual it is
consultations with particular bodies or unfair to publish the rules in any Ans. It is not only the right of the
interests, publication of draft rules or obscure publication. First, publication legislature, but also its duty, as
bye-laws, laying them before in the required mode creates certainty principal, to see how its agent
Parliament, etc. It is incumbent on the in the mind of the individual that rules (executive) carries out the agency
delegate to comply with these have been duly made and this entrusted to it. Hence parliamentary
procedural requirements and to enhances faith in the legal system. control over delegated Legislation
exercise the power in the manner Second, it enables him to have easy should be a living continuity as a
indicated by the legislature. Failure to accessibility to the rules. Where constitutional necessity. The fact is
comply with the same may invalidate publication in gazette is held to be that due to the broad delegation of
the rules so framed. But at the same merely directory, two results would powers and generalized standard of
time, it is also to be noted that failure follow - (1) In the absence of control also being broad, the judicial
to observe the procedural publication at the proper place, control has shrunk, raising the
requirements does not necessarily and delegated legislation cannot be desirability and necessity of
always invalidate the rules. This arises enforced against a person who does parliamentary control. Legislative
out of distinction between mandatory not have actual notice or knowledge of control reinforces democracy by
requirements and directory rules unless it can be shown that having delegated Legislation reviewed
requirements. adequate steps were taken to bring the by people's representatives.
rules home to the (affected) people. (2)
The following two procedural The rule making authority will be Thus, the underlying object of
requirements may now be discussed : bound by rules and even a person who parliamentary control is to keep watch
did not know of the rules earlier but over the rule-making authorities and
(1) Publication. comes to know of them later can take also to provide an opportunity to
advantage of them even though they criticize them if there is abuse of power
(2) Consultation. on their part.
have not been published in official
gazette but in some other way.
(1) Publication (i) Object It is a Legislative control can be effectively
fundamental principle of law that exercised by :
(2) Consultation The term `consult'
`ignorance of law is no excuse'
implies a conference of two or more
(ignorantia juris non excusat), but (i) Laying on Table; and
persons or an impact of two or more
there is also equally established
minds in respect of a topic in order to (ii) Scrutiny Committee
principle of law that the public must
enable them to evolve a correct or, at
have access to the law and they
least, satisfactory solution of a (i) Laying on Table - The Parliament
should be given an opportunity to
problem. exercises a direct special control over
know the law.
the delegated Legislation through the
An important measure to check and techniques of `laying' on the table of
Publication or making the rules known
control the exercise of legislative the House rules and regulations
to the individuals concerned is an
power by the executive is the framed by administration. In India,
essential requirement for validity of
technique of consultation through there is no general obligation on the
delegated legislation. It is so even if
which affected interests may administration to lay the rules before
the law is silent as to the stipulation of
participate in the rule making process. the Houses. The consequences of
publication. In Harla v. State of
This modus operandi is regarded as a non-compliance with the laying
Rajasthan (AIR 1951 SC 467), the
valuable safeguard against misuse of provision depend on whether the
Supreme Court has held that a law
legislative power by the executive provisions in the enabling Act are
cannot be enforced unless published.
authorities. This process of exchange mandatory or directory.
The council by a resolution enacted
of ideas is beneficial to both : to the
the Jaipur Opium Act, which was never
affected interests itself insofar as they The laying procedure is provided with
published in any form. One Harla was
have an opportunity to impress on the a view to enabling the legislature to
prosecuted for the contravention of this
authority their point of view; and to the supervise over the exercise of
law. The court held that publication of
rule making authority insofar as it can delegated Legislation. In reality,
some sort is essential, as it would be
gather necessary information however, even inspite of such laying
against natural justice to punish the
regarding the issues involved and thus
requirement, the legislative control before Parliament but the parent Act also, there are two Scrutiny
tends to become a fiction. Members provides that the rules should not be Committees :
have so many other important, urgent made effective until a particular period
matters to deal with that they hardly has expired. (1) The Lok Sabha Committee on
find time to go into the question of Subordinate Legislation;
delegated Legislation. The very (5) Laying in draft and requiring
reasons, which cause the growth of affirmative resolution. - This belongs to (2) The Rajya Sabha Committee on
delegated Legislation also, account for the realm of `positive resolution' and Subordinate Legislation.
legislative control becoming unreal. provides a stringent parliamentary
supervision over delegated Legislation The function of these Committees is to
The Committee on Subordinate unlike the `negative resolution' scrutinize and report to the respective
Legislation, with a view to bring procedure. The draft rules do not Houses whether the powers to make
uniformity in the laying procedure, become effective until an affirmative regulations, rules, sub-rules, bye-law,
made the following recommendations- resolution approving the same has etc., conferred by the Constitution or
been passed by Parliament. delegated by Parliament are being
(i) That, in future, the Acts containing properly exercised within such
provisions for making rules, etc., shall (6) Laying with operation deferred until delegation.
lay down that such rules shall be laid approval given by affirmative
on the Table as soon as possible. resolution. - Here the rules are actually The Indian Committee on Subordinate
made but they do not come into Legislation has made inter alia the
(ii) That all rules shall be laid on the operation until approved by following recommendations and
Table for a uniform and total period of Parliament. There is virtually no suggestions :
30 days before the date of their difference between this procedure and
publication. 1. Power of judicial review should not
a `positive resolution' procedure.
be taken away or curtailed by rules.
The committee, however, accepted an (7) Laying with immediate effect but
alternative formula suggested by the 2. A financial levy or tax should not be
requiring affirmative resolution as a
Government in which the Government imposed by rules.
condition for continuance - This form of
instead of agreeing to lay the rules laying is used where prompt operation 3. Language of rules should be simple
before Parliament prior to their coming of delegated Legislation is essential and clear and not complicated or
into force proposed to lay them after but strict parliamentary supervision is ambiguous.
their coming into force making them also necessary.
subject to such modifications as might 4. Rules should not be given
be made by Parliament. According to the Committee on retrospective operation, unless the
Delegated Legislation, the statutes parent Act has expressly conferred
There are several types of `laying'. contain four methods of laying : such a power.
(1) Laying without further provision for (i) Requirement of mere publication of 5. Legislative policy must be
control - Here the parent Act merely rules in the Official Gazette; formulated by the legislature and laid
provides that the rules shall be laid
down in the statute and the power to
before Parliament. They become (ii) Requirement of such publication
supply details may be left to the
operative from the date they are laid and laying on the Table;
executive, and can be worked out
before the Houses and in exceptional
(iii) Over and above the aforesaid two through the rules made by the
cases, even before they are so laid.
conditions, some statures allowed administration.
(2) Laying with deferred operation - modification by Parliament; and
6. Discriminatory rules should not be
The requirement of laying is linked with
(iv) Requirement of laying of rules for a framed by administration.
postponement of operation of the rules
and thus Parliament gets more control. specified period before they are
7. Rules should not travel beyond the
published in the Official Gazette.
rule-making power conferred by the
(3) Laying with immediate effect but
(ii) Scrutiny Committees As discussed parent Act.
subject to annulment - Here the rules
come into force when laid before above, laying on the table has not
8. There should not be inordinate
Parliament, but cease to be in always been held to be mandatory.
delay in making of rules by the
operation if disapproved by it within a Even if that requirement is complied
administration.
specified period. with, mere laying of rules before
Parliament would not be of much use, 9. The rules framed by the
(4) Laying in draft but subject to unless the rules were properly studied administration and required to be laid
resolution that no further proceedings and scrutinized. Therefore, with a view before the House by the parent Act
be taken. - This is also a `negative to strengthening parliamentary control should be laid before Parliament as
resolution' procedure. Here draft of over delegated Legislation, Scrutiny soon as possible, and whenever there
statutory rules are required to be laid Committees are established. In India
is inordinate delay, an explanatory "The second question, however, as to depends upon the express words of
note giving the reasons for such delay what are the principles of natural the provision conferring the power, the
should be appended to the rules so justice that should regulate an nature of the power conferred, the
laid. administrative act or order is a much purpose for which it is conferred and
more difficult one to answer. We do the effect of the exercise of that power.
10. The final authority of interpretation not think it either feasible or even
of rules should not be with the desirable to lay down any fixed or Thus in simple words the rules of
administration. rigorous yard-stick in this manner. The natural justice can be summarized in
concept of natural justice cannot be the following manner :
11. Sufficient publicity must be given to put into a straight-jacket. The only
the statutory rules and orders. essential point that has to be kept in (i) Firstly, it signifies that one cannot
mind in all cases is that the person be a Judge in his own cause.
Q. 21. What do you understand by
concerned should have a reasonable
"Natural Justice". Discuss its (ii) One who hears, should decide.
opportunity of presenting his case and
scope.
that the administrative authority (iii) Opportunity to the parties of being
Ans. Natural Justice : "Natural Justice" concerned should act fairly, impartially heard any producing evidence in
is an important concept in and reasonably. Where administrative support of their allegation.
administrative law. Term "Natural officers are concerned, the duty is not
Justice" has signified certain so much to act judicially as to act fairly (iv) Right to cross-examination.
fundamental rules of judicial " In "R. S. Dass v. Union of India" AIR
procedure. It is also known as 1987 SC 593 it was observed that The broad principles of natural justice
"Substantial Justice", "Fundamental Rules of natural justice are not rigid are as follows :
Justice". It is infact a humanizing rules, they are flexible and their
application depends upon the setting (i) A quasi-judicial authority cannot
principle intended to invest law with
and the background of statutory make any decision adverse to any
fairness, to secure justice and to
provision, nature of the right which party without giving him an effective
prevent miscarriage of justice.
may be effected and the opportunity of meeting any allegation
In Canara Bank v. Debasis Das, AIR consequences which may entail its against him.
2003 SC 2041 it was observed that application depends upon the facts
and circumstances of each case. (ii) That every person whose civil right
Natural justice is another name for
These principles do not apply to all is affected must have a reasonable
commonsense justice. Rules of natural
cases and situations. Applications of notice of the case he has to meet.
justice are not codified canons. But
they are principles ingrained into the these unmodified rules are often
(iii) That he must have a reasonable
conscience of man. Natural justice is excluded by express provision or by
opportunity of being heard in his
the administration of justice in a implication.
defence,
commonsense liberal way. Justice is
based substantially on natural ideals In "Union of India v. J. N. Sinha" AIR
(iv) That he must have the opportunity
and human values. The administration 1971 SC 40 it was observed that Rules
of adducing all relevant evidence on
of justice is to be freed from the narrow of natural justice are not embodied
which he relies, the evidence of the
and restricted considerations, which rules nor can they be elevated to the
opponent should be taken in his
are usually associated with a position of fundamental rights. Their
presence and that he must have the
formulated law involving linguistic aim is to secure justice or to prevent
opportunity of cross-examining the
technicalities and grammatical miscarriage of justice. These rules can
witness examined or relied upon by
niceties. It is the substance of justice, operate only in areas not covered by
the opponent, and documents which
which has to determine its form. any law validly made. They do not
are necessary for the purpose of an
Whenever legal justice fails to achieve supplant the law but supplement it. If a
effective exercise of the foregoing
this solemn purpose, natural justice is statutory provision can be read
rights, should not be withheld from
called in aid of legal justice. Natural consistently with the principles of
such person.
justice relieves legal justice from natural justice, the courts should do
unnecessary technicality, grammatical so. But if a statutory provision either
In the case of Board of Mining
pedantry or logical prevarication. It specifically or by necessary implication
Examination v. Ramjee, AIR 1977 SC
supplies the omission of a formulated excludes the application of any rules of
967, Supreme Court has disfavoured
law. natural justice then the court cannot
the extension of natural justice rule to
ignore the mandate of the legislature
administrative fields. Krishna Iyer J.,
Supreme Court in the case of Keshav or the statutory authority and read into
observed :-
Mills Co. Ltd. v. Union of India (1973) 1 the concerned provision the principles
SCC 380 : AIR 1973 SC 389 has of natural justice. Whether the exercise "Natural Justice is no unruly horse, no
observed that : of a power conferred should be made lurking landmine, nor a judicial cure to
in accordance with any of the all. If fairness is shown by the decision
principles of natural justice or not maker to the man proceeded against,
the form, features and the "It is one of the fundamental principles that the decision is in any way
fundamentals of such essential of our jurisprudence that no man can affected'.
processional propriety being be a Judge in his own cause and that if
conditioned by the facts and there is a reasonable likelihood of bias In Dimes v. Grant Junction Canal
circumstances of each situation, no it is "in accordance with natural justice (1852) 8 Co. Rep. 113 b : 77 All ER
breach of natural justice can be and commonsense that the justice 646 is considered to be the classic
complained of. Unnatural expansion of likely to be so biased should be example of the application of the rule
natural justice, without reference to the incapacitated from sitting". The against pecuniary interest. In this case,
administrative realities and other question is not whether the Judge is the Vice-Chancellor decreed the suits
factors of a given case, can be actually biased or in fact decides and the appeals. Against those
exasperating". partially, but whether there is a real decrees were filed in the court of Lord
likelihood of bias. What is Chancellor Cottenham. He dismissed
The Supreme Court in Maneka Gandhi objectionable in such a case is not that the appeals and decrees were
v. Union of India [(1978) 1 SCC 248] the decision is actually tainted with confirmed in favour of a canal
equated the rules of "Natural Justice" bias but that the circumstances are company in which he was a substantial
to the American's `due process' and such as to create a reasonable shareholder. The House of Lords
emphasized its application in apprehension in the mind of others agreed with the Vice-Chancellor and
administrative procedures. The court that there is a likelihood of bias affirmed the decrees on merits. In fact,
felt the necessity of spelling out fair affecting the decision. The basic Lord Cottenham's decision was not in
procedure in all these cases where the principle underlying this rule is that any way affected by his interest as a
legislature enacts a law, which may justice must not only be done but must shareholder; and yet the House of
affect the rights of an individual. also appear to be done. It is also Lords quashed the decision of Lord
important to note that this rule is not Cottenham. Lord Campbell observed :
Q. 22. What do you understand by confined to cases where judicial power
rule against Bias ? Discuss the stricto sensu is exercised. It is `No one can suppose that Lord
application of rule in Indian Law. appropriately extended to all cases Cottenham could be, in the remotest
where an independent mind has to be degree, influenced by the interest that
Ans. Rule Against Bias - One of the he had in this concern; but my Lords, it
applied to arrive at a fair and just
principles of Natural Justice is 'The is of the last importance that the
decision between the rival claims of
Rule against Bias which is described maxim, that no one is to be a Judge in
parties. Justice is not the function of
as `nemo judex in causa sua' or `nemo his own cause, should be held sacred.
the courts alone; it is also the duty of
debet esse judex in propria causa sua' And it will have a most salutary
all those who are expected to decide
that is, `no man shall be a Judge in his influence on (inferior) tribunals when it
fairly between contenting parties. The
own cause.' Coke used the form is known that this High Court of last
strict standards applied to authorities
`aliquis non-debet esse judex in resort, in a case in which the Lord
exercising judicial power are being
propria causa quia non-potest esse Chancellor of England had an interest,
increasingly applied to administrative
judex at pars', that is, `no man ought to considered that his decree was on that
bodies, for it is vital to the maintenance
be a Judge in his own case, because account a decree not according to law,
of the rule of law in a welfare State
he cannot act as Judge and at the and was set aside.
where the jurisdiction of administrative
same time be a party.' The form `nemo
bodies is increasing at a rapid pace
potest esse simul actor et judex,' that, In Mohapatra & Co. v. State of Orissa
that the instrumentalities of the State
is `no one can be at once suitor and (1984) 4 SCC 103 (112) : AIR 1984
should discharge their functions in a
Judge' is also at times used. So Rule SC 1572 (1576) some of the members
fair and just manner. "
Against Bias signifies that no man of the Committee set up for selecting
shall be a Judge in his own cause or in Types of Bias Bias is of three types : books for educational institutions were
other words a Judge is disqualified themselves authors whose books were
from hearing a case in which has (i) Pecuniary bias, to be considered for selection. The
pecuniary or other interest. Judicial Supreme Court held that the possibility
officer should be impartial and neutral (ii) Personal bias, and of bias could not be ruled out. Madon,
and must be free from bias. He is J. observed : "It is not the actual bias
supposed to be indifferent to the (iii) Official bias or bias as to subject- in favour of the author-member that is
parties to the controversy. He cannot matter. material, but the possibility of such
act as Judge of a cause in which he bias".
himself has some interest either (i) Pecuniary bias - It is well settled
pecuniary or otherwise as it affords the that as regards pecuniary interest "the (ii) Personal Bias - The Judge may be
strongest proof against neutrality. least pecuniary interest in the subject- a friend of the party, or related to him,
matter of the litigation will disqualify or have some business or professional
In Ashok Kumar Yadav v. State of any person from acting as a Judge". relationship with him, or may even
Haryana, AIR 1987 SC 454 it was Griffith and Street rightly state that 'a have personal animosity or hostility
observed :- pecuniary interest, however slight, will against him. In Mineral Development
disqualify, even though it is not proved Ltd. v. State of Bihar (AIR 1960 SC
468) the Revenue Minister had this category where the deciding necessity so demands. There are
cancelled the petitioner's licence for officer is directly, or otherwise, certain exceptional circumstances and
the lease of certain land. It was found involved in the subject-matter of the situations whereunder the application
that there was political rivalry between case. Here again mere involvement of the rule of audi alteram partem is
petitioner and the minister. would not vitiate administrative action not attracted....It is no doubt true that
unless there is a real likelihood of bias the fact that a decision, whether a
In Manak Lal v. Prem Chand (AIR i.e. unless the adjudication has prima facie case has or has not been
1957 SC 125), in order to decide a intimately identified himself with the made out, is not by itself determinative
complaint for professional misconduct issues. of the exclusion of hearing, but the
filed by Prem Chand against Manak consideration that the decision was
Lal an advocate of Rajasthan High In Gullapalli Nageswara Rao v. purely an administrative one and a full-
Court, the High Court appointed a A.P.S.R.T.C. (Gullapalli I) AIR 1959 fledged enquiry follows is a relevant
tribunal consisting of a senior SC 308, the petitioners were carrying and indeed a significant factor in
advocate, one Advocate-General of on motor transport business. The deciding whether at that stage there
Rajasthan as Chairman. The tribunal's Andhara State Transport Undertaking ought to be hearing which the statute
decision was challenged on ground of published a scheme for nationalization did not expressly grant.
a personal bias arising from the fact of motor transport in the State and
that Chairman had represented Prem invited objections. The objections filed Generally, this maximum includes two
Chand in an earlier case. The court by the petitioners were received and elements :
refused to quash the action on the heard by the Secretary and thereafter
basis of `real likelihood' of bias, as the the Chief Minister approved the (i) Notice; and
Chairman had no personal contact scheme. The Supreme Court upheld
with his client and did not remember the contention of the petitioners that (ii) Hearing.
that he appeared on his behalf. the official who heard the objections
(i) Notice - Before any action is taken,
However, the high professional was `in substance' one of the parties to
the affected party must be given a
standards led the court to quash action the dispute and hence the principles of
notice to show cause against the
on ground that justice should not only natural justice were violated.
proposed action and seek his
be done but must appear to have been
Q. 23. Discuss "Rule of Fair explanation. It is a sine qua non of the
done. Actual proof of prejudice was not
Hearing".OrExplain meaning and right of fair hearing. Any order passed
necessary; reasonable ground for
scope of "Audi Alteram Partem" without giving notice is against the
assuming the possibility of bias was
principles of natural justice and is void
sufficient.
Ans. Rule of Fair Hearing - Second ab initio.
In State of U.P. v. Mohd. Nooh AIR important principle of Natural Justice is
"Audi Alteram Partem" i.e. Rule of Fair Unless a person knows the formulation
1958 SC 86, a departmental inquiry
Hearing which implies that each party of subjects and issues involved in the
was held against A by B. As one of the
before their rights or liabilities are case, he cannot defend himself. A
witnesses against A turned hostile, B
adjudicated upon, must be given notice must be adequate, and contain :
left the inquiry, gave evidence against
A, resumed to complete the inquiry opportunity of being heard.
(1) Time, place and nature of hearing,
and passed an order of dismissal. The
Supreme Court held that "the rules of In "Union of India v. W.N. Chadha" AIR
(2) Legal authority under which
natural justice were completely 1993 SC 1082 it was observed that the
hearing is to be held,
discarded and all canons of fair play rule of audi alteram partem is not
were grievously violated" by B. attracted unless the impugned order is (3) Statement of specific charges (or
Similarly, in Rattan Lal v. Managing shown to have deprived a person of grounds) and proposed action (or
Committee (1993) 4 SCC 10 : AIR his liberty or his property. The rule of grounds) which the person has to
1993 SC 2155, X was a witness as audi alteram partem is a rule of justice meet.
well as one of the three members of an and its application is excluded where
inquiry committee against A. At the the rule will itself lead to injustice. However, the requirement of notice will
inquiry, A was found guilty and was There is exclusion of the application of not be insisted upon as a mere
dismissed. Setting aside dismissal and audi alteram partem rule to cases technical formality, when the
following Mohd. Nooh, the Supreme where nothing unfair can be inferred concerned party clearly knows the
Court held that the proceedings were by not affording an opportunity to case against him, and is not thereby
vitiated because of prejudice of one of present and meet a case. This rule prejudiced in any manner in putting up
the members of the committee. cannot be applied to defeat the ends of an effective defence. Therefore in
justice or to make the law `lifeless, Keshav Mills Co. v. Union of India (AIR
(iii) Official Bias - The third types of absurd, stultifying and self-defeating or 1973 SC 389), the Supreme Court did
bias is official bias or bias as to the plainly contrary to the common sense not quash the order of the government
subject-matter. This may arise when of the situation' and this rule may be taking over the mill for a period of 5
the Judge has a general interest in the jettisoned in very exceptional years on the technical ground that the
subject-matter. Those cases fall within circumstances where compulsive appellants were not issued notice
before this action was taken, because, representation or by personal hearing Procedure Code, when an actual suit
at an earlier stage, a full-scale hearing depends upon the facts of each case is tried by the court. The rules
had already been given and there was and ordinarily it is in the discretion of regarding the appearance of the
nothing more which the appellant the tribunal". opposite party, and the production of
wanted to know. evidence are same as they are laid
Q. 24. Whether the doctrine "audi down in Civil Procedure Code. Under
(ii) Hearing - The second requirement alteram partem" or right of being Section 85 of the Act, the proviso
of "audi alteram partem" maxim is that heard, has got statutory recognition clearly guarantees the opportunity to
the person concerned must be given in India ? be heard. Section 85 laid down : 'If the
an opportunity of being heard before provisions of Section 81 or Section 82
any adverse action is taken against Ans. In India doctrine of "Audi Alteram or Section 107 have not been
him. Partem" has been well recognised in complied with, the Election
different statute book. This principle is Commission shall dismiss the petition :
In State of Orissa v. Binapani Dei AIR no longer a principle of Administrative
1967 SC 1269 the petitioner was law but has found its place in statute Provided that the petition shall not be
compulsorily retired from service on books as the very system of judicial dismissed without giving the petitioner
the ground that she had completed the administration is based on fair trial. an opportunity to be heard".
age of 55 year. No opportunity of Many statutes enacted in India contain
hearing was given to her before the provisions based on the principle that Similarly in Criminal trial in course of
impugned order was passed. The each party in judicial or quasi-judicial trial before pronouncement of
Supreme Court set aside the order as proceedings should get opportunity of judgment he is entitled to be heard on
it was violative of the principles of being heard, before adjudication upon the evidence which has come on
natural justice. their right or liabilities. record against him. Section 313
Criminal Procedure Code provides that
Again, in Maneka Gandhi v. Union of In India under the Income Tax Act, a accused will be given opportunity to
India, AIR 1978 SC 597, the passport 1961, the right to hearing has been explain and answer about those facts
of the petitioner-journalist was very widely made available. An order evidence of which has been produced
impounded by the Government of India prejudicial to assesee cannot be by prosecution.
in public interest. No opportunity was passed by Assistant Commissioner
given to the petitioner before taking the (Appeal) or the Appellate Tribunal Similarly u/s 35 (2), (3) of Copyright
impugned action. The Supreme Court without giving him reasonable Act, the Copyright Board is required to
held that the order was violative of the opportunity to meet the case. Section give notice and a reasonable
principles of natural justice. 254 (1) of the said Act again provides : opportunity of being heard. Sub-sec.
(2) of Section 35 provides :
Although an adjudicating authority The Appellate Tribunal may after
must observe the principles of natural giving both the parties to the appeal an The Copyright Board shall, in respect
justice and must give a reasonable opportunity of being heard, pass such of every such rule, give notice thereof.
opportunity of being heard to the orders thereon as it thinks fit. The
person against whom the action is proviso of Section 254 (2) lays down : Sub-sec. (3) again provides :
sought to be taken. But in England and
in America, it is well settled law that in Provided that an amendment which The Copyright Board shall, after giving
absence of statutory provisions, an has the effect of enhancing an such society and the person who
administrative authority is not bound to assessment or reducing a refund or lodged the objection a reasonable
give the person concerned an oral otherwise increasing the liability of the opportunity of being heard and after
hearing. In India also, the same assesses, shall not be made under this making such further enquiry as may be
principle is followed. A person is not sub-section unless the Appellate prescribed.
entitled to an oral hearing, unless the Tribunal has given notice to the
assessee a reasonable opportunity of Thus, if we look in the principal
statute confers such a right. In M.P.
being heard. statutes of India, which provide for
Industries v. Union of India AIR 1966
tribunals, each of them contains
SC 671, Subba Rao, J. observed :
Thus, the provisions requiring the provisions for an opportunity of being
"It is no doubt a principle of natural Income-Tax authorities and the heard. Where the right has not been
justice that a quasi-judicial tribunal Appellate Tribunal to give reasonable conceded in express words, it should
cannot make any decision adverse to opportunity to show cause or to be assumed as an essential
a party without giving him an effective represent one's view are made requirement of the fair procedure.
opportunity of meeting any relevant whenever the interests of the
assessee are affected. Under the Constitution itself, there are
allegations against him (but) the said
provisions, which give an opportunity
opportunity need not necessarily be by
Under the Representation of the to show cause, while any action is
personal hearing. It can be by written
Peoples Act, 1951, provisions for taken against a Government servant in
representation. Whether the said
hearing are like that under Civil connection with his dismissal or
opportunity should be by written
reduction in rank. Under Article 331 of (2) Where the authority concerned is Object - The condition to record
the Constitution, clause 2 clearly vested with wide discretion. reasons introduces clarity and
provides :- excludes arbitrariness and satisfies the
(3) Where the legislation expresses party concerned against whom the
"No such person as aforesaid shall be the requirement of notice and hearing order is passed. Today, the old `Police
dismissed or removed or reduced in for some purposes but imposes no State' has become a `welfare State'.
rank until he has been given a procedural requirement for other The governmental functions have
reasonable opportunity of showing purposes. increased, administrative tribunals and
cause against the action proposed to other executive authorities have come
be taken in regard to him : (4) Where the imposition of to stay and they are armed with wide
compliance with the rule, i.e., to discretionary powers and there are all
Provided that this clause shall not disclose relevant information to the possibilities of abuse of power by
apply : party affected would be prejudicial to them. To provide a safeguard against
the public interest. the arbitrary exercise of powers by
(a) Where a person is dismissed or
these authorities, the condition of
removed or reduced in rank on the (5) Where the obligation to give notice
recording reasons is imposed on them.
ground of misconduct which has led to and opportunity to be heard would
his conviction on a criminal charge; obstruct the taking of prompt action If the statute requires recording of
specially action of a prevention and reasons, then it is the statutory
(b) Where an authority empowered to remedial nature. requirement and, therefore, there is no
dismiss or remove a person or to
scope for further inquiry. But even
reduce him in rank is satisfied that for (6) Where for any reasons, it becomes
when the statute does not impose
some reasons to be recorded by that impracticable to give prior notice or
such an obligation, it is necessary for
authority in writing it is not reasonable, opportunity of hearing
the quasi-judicial authority to record
practicable to give to that person an
(7) Where the matter in issue or the reasons, as it is the `only visible
opportunity of showing cause; or.
monetary value of the interests at safeguard against possible injustice
(c) where the President or Governor, stake is too insignificant. and arbitrariness' and affords
as the case may be, is satisfied that in protection to the person adversely
the interest of the security of the State (8) Where the power exercised is affected. Reasons are the links
it is not expedient to give to that disciplinary. between the materials on which certain
person due opportunity." Thus, we find conclusions are based and the actual
that except under the above three Q. 26. What do you understand by conclusions. They disclose how the
conditions, a reasonable opportunity to concept of passing Reasoned or mind is applied to the subject-matter
be heard has been clearly guaranteed. Speaking Order ? What is the object for a decision, whether it is purely
In India, "reasonable opportunity of of it ? administrative or quasi-judicial. They
being heard" clause has been given should reveal a rational nexus
Ans. A speaking order means which is between the facts considered and the
statutory recognition in almost all
self-explanatory and is speaking for conclusion reached. The courts insist
cases. It was thought to be an
itself. It precisely means an order, upon disclosure of reasons in support
essential condition of getting justice.
which lays down the reasons and of the order on three grounds :
Without it, the true end of judicial
grounds on the basis of which it was
hearing will be frustrated.
passed. (1) the party aggrieved has the
Q. 25. In what cases the rule of opportunity to demonstrate before the
Importance of recording of reasons - appellate or revisional court that the
"Audi Alteram Partem" can be
The reasoned decision facilitates the reasons which persuaded the authority
excluded ?
exercise of appellate or revisional to reject his case were erroneous;
Ans. There are certain conditions in powers, acts as deterrent against
which the rule of audi alteram partem arbitrary exercise of powers and gives (2) the obligation to record reasons
is not applied. These limitations on the satisfaction to the party against whom operates as a deterrent against
right to be heard are either based on order is made. If administrative possible arbitrary action by executive
"statutory provisions" or on public authority is allowed to keep its errors authority invested with judicial power;
off the record by not writing reasons, and
policy. They are excluded on the
grounds of national security, public the whole concept of judicial review
would be meaningless. (3) it gives satisfaction to the party
policy and expediency. Such
against whom the order is made. The
conditions can be classified in the
In order to maintain and uphold rule of power to refuse to disclose reasons in
following manner :
law, it is necessary that in all support of the order is `exceptional in
(1) Where the functions of the authority administrative and quasi-judicial nature and it ought to be exercised
concerned are held to be policy actions, the requirement of a reasoned fairly, sparingly and only when fully
oriented. decision must be implied unless justified by the exigencies of an
expressly excluded. uncommon situation'.
Q. 27. What is post-decisional found to have been attracted by substance it is the "necessity for
hearing ? Why was it propounded ? necessary implication because the speed" which justifies post-decisional
government had agreed to give post hearing at a later stage.
Ans. The idea of post-decisional decisional hearing.
hearing has been developed to Q. 28. Discuss the effects of non-
maintain a balance between In Shephard v. Union of India AIR observance of principles of Natural
administrative efficiency and fairness 1988 SC 686, certain banks were Justice.
to the individual. This technique was ordered to be amalgamated with some
developed by Supreme Court in nationalized banks. Certain employees Ans. Effect of Non-observance of the
Maneka Gandhi v. Union of India, AIR of private banks were excluded from Rules of Natural Justice Rules of
1978 SC 597. In this case the facts employment in the nationalized banks. natural justice have to be followed as a
were that the passport dated June 1, Thus, their services were terminated matter of public policy. The rules of
1976 of the petitioner, a journalist, was without giving them an opportunity of natural justice know of no exclusionary
impounded in public interest by an hearing. The Supreme Court rejected rule dependent on whether it would
order dated July 2, 1977 and the the proposal for a post-amalgamation have made any difference if natural
government having declined to furnish hearing since `there was no justice had been observed. The non-
to her the reasons for its decision, she justification to think of a post- observance of natural justice is itself
filed a petition before the Supreme decisional hearing'. The court rightly prejudice to any man and proof of
Court under Article 32 challenging the observed : "It is common experience prejudice independently of proof of
validity of the impoundment order. The that once a decision has been taken, denial of natural justice is unnecessary
government also did not give her any there is a tendency to uphold it and a (S.L. Kappor v. Jagmohan, AIR SC
pre-decisional notice and hearing. One representation may not yield any 136). The question whether failure to
of the contentions of the government fruitful purpose". observe the rules of natural justice
was that the rule of audi alteram makes the decision "void" or "voidable"
partem must be held to be excluded In Trehan v. Union of India AIR 1989 has arisen in recent years. There is a
because it may have frustrated the SC 568, a circular was issued by a view point that failure to observe the
very purpose of impounding the government company, prejudicially principles of natural justice amounts to
passport. Rejecting the contention the altering the terms and conditions of its acting ultra vires and therefore such an
Supreme Court held that even though employees without affording an action must be void ab initio. On the
the impoundment of the passport is an opportunity of hearing to them. In reply other hand, we have cases in which
administrative action yet the rule of fair to the said contention, an argument decisions though taken without
hearing is attracted by necessary was advanced by the company that compliance with the rules of natural
implication and it would not be fair to after the impugned circular was justice were not set aside.
exclude the application of this cardinal issued, an opportunity was given to the
rule on the ground of administrative employees with regard to the alteration The courts are unanimous that a
convenience. However, the court did made by the circular. In other words, a decision rendered in violation of the
not outright quash the order and plea regarding post-decisional hearing rule against bias is merely voidable
allowed the return of passport because was put forward. Negating the and not void. The aggrieved party may
of the special socio- political factors contention and following Shephard thus waive his right to avoid the
attending the case. On the contrary the case (supra), the Supreme Court decision; as where timely objection is
technique of post- decisional hearing reiterated : "In our opinion, the post- not made even though there is full
was developed in order to balance decisional opportunity of hearing does knowledge of the bias and the right to
these factors against the clear not subserve the rules of natural object to it (Manak Lal v. Dr. Prem
requirement of law, justice and justice. The authority who embarks Chand AIR 1957 SC 425). However
fairness. The court stressed that a fair upon a post-decisional hearing will there is fundamental disagreement
opportunity of being heard following normally proceed with a closed mind amongst the courts and jurists as to
immediately upon the order and there is hardly any chance of the effect of a breach of the rule of fair
impounding the passport would satisfy getting proper consideration of the hearing on any decision.
the mandate of natural justice. representation at such a post-
decisional opportunity". If hearing is a requirement of the
The same technique of validating void reasonableness of a restriction on a
administrative decision by post- Conclusions - A prior hearing may be fundamental right, non-compliance
decisional hearing was adopted in better than a subsequent hearing but a with it will render the decision void ab
Swadeshi Cotton Mills v. Union of subsequent hearing is better than no initio (Nawab Khan v. State of Gujarat
India, AIR 1981 SC 818. In this Case hearing at all. The approach may be AIR 1974 SC 1471). Where the
the court validated the order of the acceptable where the original decision requirement is statutory or an implied
government for taking over the does not cause serious detriment to requirement of law a decision taken
management of this company which the person affected, or where there is without complying with it would not be
had been passed in violation of audi also a paramount need for prompt void. If a person does not insist, in
alteram partem rule and which was action, or where it is impracticable to spite of his awareness, upon his right
afford antecedent hearings. In to be heard or right to cross-examine
or the right to engage a lawyer or for the industrial relations, exercises the basis of executive policy. Thirdly,
disclosure of relevant documents, the control over production, starts many all tribunals do not deal with cases in
actions would not be rendered void if enterprises. The issues arising which Government is a party. Some
such facilities are not given to him therefrom are not purely legal issues. It tribunals adjudicate disputes between
unless such action had resulted in is not possible for the ordinary courts two private parties e.g. disputes
grave injustice. In R. L. Sharma v. of law to deal with all these socio- between landlords and tenants;
Managing Committee, Mr. Hari Ram economic problems. All the same, it is employers and employees, etc. Finally,
(Co-Ed.) H. S. School, AIR 1996 SC necessary that such disputes should such tribunals are independent.
2155, in a departmental enquiry not be determined in an arbitrary or
against principal one member of autocratic manner. Administrative Q. 30. What is the nature of
enquiry committee (who was inimical tribunals are, therefore, established to Administrative Tribunals ? State
towards the principal) appeared as decide various quasi-judicial issues in basic characteristics of an
witness against delinquent to prove place or ordinary courts of law. Administrative Tribunal. How an
one of the several charges. Held that Administrative Tribunal is
the fact that delinquent does not raise The status of tribunals has been distinguished from courts of law ?
specific pleas or objection on this recognised by the Constitution. Article
ground before authority granting 136 of the Constitution empowers the Ans. An `Administrative Tribunal' is not
approval to propose punishment or Supreme Court to grant special leave a court nor an executive body. It
before appellate authority is to appeal from any judgment, decree, stands somewhere midway. It is as a
immaterial. A plea cannot be allowed determination, sentence or order matter of fact, offspring of compromise
to be raised for the first time in writ passed or made by any tribunal in between executive and the judiciary.
proceeding unless it goes to the root of India. Likewise, Article 227 enables Prof. Wades says "They are often
the question. In the present case, held every High Court to exercise power of called `Administrative Tribunals', but
that the enquiry is vitiated as the bias superintendence over all tribunals this does not mean that their decisions
(personal) percolates throughout the throughout the territories over which it are necessarily administrative. In the
enquiry proceedings. exercises jurisdiction. great majority of cases they are judicial
in the sense that the tribunal has to
Thus, in State of Patiala v. S.K. By the Constitution (42 nd decide facts and apply rule to them
Sharma AIR 1996 SC 1669, it was Amendment) Act, 1976, Articles 323-A impartially, without considering
observed that : and 323-B have been inserted by executive policy. Such tribunals in
which Parliament has been authorised substance are court of law. They are
"It would not be correct to say that for to constitute administrative tribunals administrative because the reasons for
any and every violation of a facet of for settlement of disputes and preferring them to the ordinary courts
natural justice, an order passed is adjudication of matters specified of law are administrative reasons". He
always null and void. The validity of therein. further writes, "These tribunals,
the order has to be tested on the therefore, have the character of courts,
touchstone of prejudice. The ultimate In Bharat Bank v. Employees AIR but they are deeply enmeshed in the
test is always the same, viz., the test 1950 SC 188, the Supreme Court administrative machinery of the State.
of prejudice or the test of fair hearing". observed that though tribunals are clad Their working and structure is an
in many of the trappings of a court and important topic of administrative law.
Q. 29. What do you mean by though they exercise quasi-judicial
"Administrative Tribunals ? Discuss functions, they are not full-fledged The establishment of the tribunals is
various reasons for growth of courts. Thus, a tribunal is an under the law. Although the members
Tribunals in Modern times. adjudicating body, which decides of the tribunals are appointed by the
controversies between the parties and Government, and mostly they are
Ans. Governmental functions have exercises judicial powers as officials, yet they work independently
increased and even though according distinguished from purely without being influenced by the
to the traditional theory, the function of administrative functions and thus Government. In India, the
adjudication of disputes is the possesses some of the trappings of a establishment of these adjudicative
exclusive jurisdiction of the ordinary court, but not all. bodies is constitutionally recognized.
courts of law, in reality, many judicial
functions have come to be performed According to Wade, the expression In A.P.H.L. Conference, Shillong v.
by the executive, e.g. imposition of `administrative tribunals' is misleading W.A. Sangama, [AIR 1977 S.C. 2155]
fine, levy of penalty, confiscation of for various reasons. Firstly, every the Supreme Court held that the
goods, etc. The traditional theory of tribunal is constituted by an Act of principal test which must necessarily
`laisez faire' has been given up and Parliament and not by Government. be present in determining the
the old `police State' has now become Secondly, decisions of such tribunals character of the authority as the
a `welfare State', and because of this are judicial rather than administrative. tribunal is whether that authority is
radical change in the philosophy as to A tribunal reaches a finding of fact, empowered to exercise any
the role to be played by the State, its applies law to such fact and decides adjudicating power of the State and
functions have increased. It regulates legal question objectively and not on
whether the same has been conferred (6) The decisions of most of the bound by those rules unless the
on it by any statute rule. tribunals are in fact judicial rather than relevant statute imposes such an
administrative inasmuch as they have obligation.
Tribunals are, thus, administrative to record findings of facts objectively
bodies, set up solely with the idea of and then to apply the law to them (6) A court must decide all the
discharging quasi-judicial duties. Their without regard to executive policy. questions objectively on the basis of
determination affects the rights of the evidence and materials produced
parties. They, therefore, have been (7) Administrative Tribunals are before it, but an `Administrative
held to be quasi-judicial bodies. independent and they are not subject Tribunal' may decide the questions
to any administrative inference. taking into account the departmental
The tribunal is generally given the policy or expediency and in that sense,
power of a Civil court enjoyable under (8) The prerogative writs of certiorari the decision may be subjective rather
the Code of Civil Procedure in matters and prohibition are available against than objective.
of summoning witnesses, compulsory the decisions of administrative
production and discovery of tribunals. (7) While precedents, principles of res
documents, receiving of evidence on judicata and Estoppel bind a court of
oath and on affidavit, issuing Administrative Tribunal Distinguished law, they do not strictly bind an
commissions, etc. for example the From Court - An `Administrative `Administrative Tribunal'.
Railway Rates Tribunal is expressly Tribunal' is similar to a court in certain
declared as civil court, and contempt aspects. A tribunals possesses some (8) A court of law can decide the `vires'
of this tribunal is punishable under of the trappings of a court, but not all, of a legislation, while an
sections 172-188 of the Penal Code in and therefore, both must be `Administrative Tribunal' cannot do so.
accordance with the procedure distinguished :
prescribed in Sections 195 and 476 of Q. 31. Write a Note on Constitution
Criminal Procedure Code. The (1) A Court of law is a part of the and Functioning of following :
proceeding before the Appellate traditional judicial system, where
judicial powers are derived from the (A) Industrial Tribunal.
Tribunal of Income-Tax, the Controller
of Estate Duty, the Appellate Controller State. On the other hand, an
`Administrative Tribunal' is an agency (B) Income Tax Appellate Tribunal
of Estate Duty and others are
expressly declared to be judicial created by a statute and invested with
(C) Railway Rates Tribunal.
proceedings. judicial powers. Primarily and
essentially, it is a part and parcel of the Ans. (a) Industrial Tribunal The
The following are the characteristics of Executive Branch of the State, Industrial Tribunal is set up under the
an `Administrative Tribunal' : exercising executive as well as judicial Industrial Disputes Act, 1947. It can be
functions.
constituted by the Central Government
(1) An `Administrative Tribunal' is the if an industrial dispute relates or in any
creation of a statute and thus, it has a (2) Whereas ordinary civil courts have
way concerns the Central
statutory origin. judicial power to try all suits of a civil
Government, but where the
nature, excepting those, whose
Government of India has no such
(2) It has some of the trappings of a cognizance is either expressly or
direct interest, the `appropriate
court but not all. impliedly barred, tribunals have power
Government' may constitute the
to try cases in special matters
(3) An `Administrative Tribunal' is tribunal.
statutorily conferred.
entrusted with the judicial powers of
An industrial dispute means any
the State and thus, performs judicial (3) Judges of ordinary courts of law
dispute or difference between-
and quasi-judicial functions, as are independent of the executive in
distinguished from pure administrative respect of their tenure, terms and (i) employers and employees, or
or executive functions and is bound to conditions of service, etc. On the other
act judicially. hand, members of `Administrative (ii) employers and workmen, or
Tribunals' are entirely in the hands of
(4) Even with regard to procedural the government in respect of those (iii) workmen and workmen
matters, an administrative tribunal matters.
possesses powers of a court; e.g. to which is connected with -
summon witnesses, to administer oath, (4) A court of law is generally presided
to compel production of documents, over by an officer trained in law, but (a) the employment or non-
etc. the president or a member of a tribunal employment
may not be trained as well in law.
(5) An administrative tribunal is not (b) the terms of employment, or
bound by strict rules of evidence and (5) A court of law is bound by all the
procedure. rules of evidence and procedure but (c) the conditions of labour.
an `Administrative Tribunal' is not
Section 7-A if the Industrial Disputes establishment to which the dispute must have practiced as such for ten
Act, 1947 provides as follows : relates. Every Tribunal shall have the years or must have served as
same powers which are vested in a Assistant Commissioner for at least
(1) The appropriate Government may, Civil court, under the Code of Civil three years. Appointments are made
by notification in the official Gazette, Procedure, 1908, when trying a suit, in by the Central Government. The
constitute one or more Industrial respect of following matters, namely - Chairman of the tribunal shall be
Tribunals for the adjudication of appointed from amongst the judicial
Industrial Disputes relating to any (a) enforcing the attendance of any members. The President of India
matter, whether specified in the person and examining him on oath; regulates the conditions of service of
second Schedule or the third the members in exercise of powers
Schedule. (b) compelling the production of conferred by the proviso to Article 309
documents and material objects; of the Constitution.
(2) A tribunal shall consist of one
person only to be appointed by the (c) issuing commissions for the Appeals can be filed before the
appropriate Government. examination of witnesses; tribunal by an aggrieved party against
orders passed by the appellate
(3) A person shall not be qualified for (d) in respect of such other matters as
Assistant Commissioner, Inspecting
appointment as the presiding Officer of may be prescribed and every inquiry or
Assistant commissioner or
a tribunal unless - investigation by a Tribunal shall be
Commissioner within a period of 60
deemed to be judicial proceedings
days. The tribunal shall decide the
(a) he is or has been a Judge of High within the meaning of Section 193 and
matter only after giving both the parties
Court; or of the Indian Penal Code.
to the appeal an opportunity of being
(b) he as held the office of the Every Tribunal shall be deemed to be heard. If the parties do not appear at
Chairman or any other member of the a Civil court for the purposes of the time of hearing, the appeal may be
Labour Appellate Tribunal constituted Sections 480 and 482 of the Code of adjourned or heard ex parte. The
under Industrial Disputes (Appellate Criminal Procedure, 1898. assessee is entitled to appear before
Tribunal) Act, 1950 or of any Tribunal the tribunal personally or through an
for a period of not less than two years. In L. Chandra Kumar v. Union of India authorised agent including a lawyer.
AIR 1997 SC 1125 it was observed : The tribunal is not governed by the
(4) The appropriate Government may, rules of evidence applicable to the
if it so thinks fit, appoint two persons "The proceedings conducted by the courts of law and is empowered to
as assessors to advise the Tribunal in Industrial Tribunal are judicial regulate its own procedure. It gives
the proceedings before it. proceedings and the decisions and oral hearing to the parties and passes
awards are subject to the writ appropriate orders.
Section 10(1) (d) provides, "where the jurisdiction of the High Court under
appropriate Government is of the Article 226 of the Constitution. The The proceedings before the tribunal
opinion that any industrial dispute tribunal is also subject to the are deemed to be judicial proceedings.
exists or is apprehended, it may at any supervisory jurisdiction of the High It has the power of summoning
time by order in writing refer the Court under Article 227 of the witnesses, enforcement of attendance,
dispute or any matter appearing to be Constitution. Article 136 of the discovery and inspection, production of
connected with or relevant, to the Constitution vests the Supreme Court documents and issue of commissions,
dispute, to a Tribunal for adjudication". with discretion to entertain appeals as it has been given powers of a civil
Section 10 (4) further provides that against the orders of tribunals by court under the Code of Civil
where in an order referring an granting special leave". Procedure, 1908. It can order
industrial dispute to a Tribunal, the prosecution of persons who produce
appropriate Government has specified (b) Income Tax Appellate Tribunal - false evidence or fabricate such
the points of dispute for adjudication, The income tax tribunal is constituted evidence and they may be punished
the Tribunal shall confine its under the Income-tax Act, 1961. It under the Indian Penal Code, 1860. It
adjudication to these points and consists of as many judicial and may also take appropriate actions for
matters incidental thereto. accountant members as the Central its contempt. It may impound and
Government thinks fit. A judicial retain books of account. The
The Tribunal follows fair procedure members must have held at least for proceedings of the tribunal are not
and ensures the basic procedural ten years a judicial post or must have open to public.
safeguard to the parties. It holds the been a member of the Central Legal
proceedings in public. A presiding Services (not below Grade III) for at The decisions of the tribunal on
officer of the Tribunal may, for the least three years or must have been in questions of fact are final. No regular
purpose of enquiry into any existing or practice as an advocate for at least ten appeal is provided by the Act against
apprehended industrial dispute, after years. An accountant member must be the decision of the tribunal even on
giving reasonable notice, enter the a Chartered Accountant under the questions of law but a reference can
premises occupied by any Chartered Accountants Act, 1949 and be made at the request of either party
to the High Court on any question of
law or directly to the Supreme Court if They are selected after consultation Indian Penal Code. It is also provided
the tribunal is of the opinion that there with the interests likely to be affected that the tribunal shall be deemed to be
is conflict of opinions amongst the by the decisions of the tribunal civil court for purposes of Section 346
High Courts. of the Code of Criminal Procedure,
A party before the tribunal is entitled to 1973. Section 193 of Indian Penal
(c) Railways Rates Tribunal - Indian be heard in person or through an Code provides penalty for giving or
Railway Rates Tribunal is established authorised agent including a lawyer. fabricating false evidence in any stage
under the Indian Railways Act, 1989. It The decision of the tribunal is to be of judicial proceeding. Section 228
consists of a Chairman who is or has made by a majority of members. Its provides punishment for intentional
been a Judge of the Supreme Court or decision is final and can be executed insults to public servant while sitting in
of a High Court and two members, one by a civil court `as if it were a decree'. any stage of judicial proceeding. Under
shall be a person who, in the opinion The tribunal can revise its order on an sections 340 to 345 of Cr. P. Code,
of the Central Government has special application being made by the railway 1973 provisions have been made for
knowledge of commercial, industrial or administration if the tribunal is satisfied the prosecution of the offences
economic conditions of the country that `since the order was made, there affecting the administration of justice.
and the other shall be a person, who, has been a material change in the Thus, by extending the application of
in the opinion of the Central circumstances'. these provisions to the proceedings of
Government, has special knowledge a tribunal.
and experience of the commercial Q. 32. Do you agree with the view
working of the railways. They shall be that principles of natural justice are The Law Commission in its Fourteenth
appointed by the Central Government to be followed by Tribunals ? Report (1958) has observed that
and the terms and conditions of their administrative tribunals perform quasi-
appointment may be such as the Ans. As discussed above, judicial functions and they must act
Central Government may prescribe. administrative tribunals exercise judicially and in accordance with the
The members so appointed are to hold judicial and quasi-judicial functions as principles of natural justice.
office for such period as may be distinguished from purely Administrative tribunals must act
specified in the order of appointment, administrative functions. An essential openly, fairly and impartially. They
not exceeding five years. No member feature of these tribunals is that they must afford a reasonable opportunity
can be re-appointed. decide the disputes independently, to the parties to represent their case
judicially, objectively and without any and to adduce the relevant evidence.
The tribunal is a quasi-judicial body, bias for or prejudice against any of the Their decisions must be objective and
having all the attributes of a civil court parties to the dispute. not subjective.
under the court of Civil Procedure,
1908. It has power to summon Different tribunals have different rules Q. 33. Discuss the scope of
witnesses, take evidence, order of procedure. The procedure which an Administrative Tribunal Act 1985.
discovery and inspection of industrial tribunal is required to follow
documents, issue commissions, etc. is in the rules made under the Ans. In pursuance of the power
The proceedings of the tribunal are Industrial Disputes Act, 1947. The conferred upon it by clause (1) of
deemed to be judicial proceedings Railway Rates Tribunal has been Article 323A of Constitution,
within the meaning of Section 195 and empowered to make rules for practice Parliament enacted the Administrative
Chapter XXVI of the Code of Criminal and procedure that it would follow. But Tribunals Act, 1985. The Statement of
Procedure, 1973. The tribunal is not one thing is common in the procedure Objects and Reasons of the Act
bound by strict rules of evidence and followed by all the tribunals. Each of indicates that it was in the express
procedure and is empowered to frame them is given the power of a civil court terms of Article 323A of the
its own rules for the purpose of acting under the code of Civil Constitution and was being enacted
`practice and procedure', subject to Procedure in respect of the following because a large number of cases
approval of the Central Government. matters - relating to service matters were
pending before various Courts; it was
The tribunal has the power to hear (i) discovery and inspection; expected that "the setting up of such
complaints against the railway Administrative Tribunals to deal
(ii) enforcement of attendance of any
administration relating to exclusively with service matters would
person;
discriminatory or unreasonable rates go a long way in not only reducing the
levied by it, classification of goods or in (iii) compulsory production of burden of the various courts and
giving undue preference to a particular documents and other evidence; thereby giving them more time to deal
person. The tribunal acts with the aid with other cases expeditiously but
of assessors who are selected from a (iv) issuing of commission. would also provide to the persons
panel prepared by the Central covered by the Administrative
Government. This panel includes Again, the proceedings of the tribunals Tribunals speedy relief in respect of
representatives of trade, industry, are declared to be judicial proceedings their grievances.''
agriculture and persons who have a for purposes of sections 193 and 228
working knowledge of the railways. and for purposes of Section 196 of
Administrative Tribunals Act, 1985 matters pertaining to such classes of (c) has, for a period of not less than
contains 37 Sections, which are cases as the Chairman may by three years, held office as a Judicial
housed in five Chapters. Chapter I general or special order specify : Member or an Administrative Member.
("Preliminary'') contains three
Sections. Cl. (a) of sub-section (2) of Provided that if at any stage of the (3) A person shall not be qualified for
Section 1 of the Act runs as follows :- hearing of any such case or matter it appointment as a Judicial Member
appears to the Chairman or such unless he -
"(2) It extends, - Member that the case or matter is of
such a nature that it ought to be heard (a) is, or has been, or is qualified to be,
(a) in so far as it relates to the Central by a Bench consisting of two a Judge of a High Court; or
Administrative Tribunal, to the whole of Members, the case or matter may be
India. transferred by the Chairman or, as the (b) has been a member of the Indian
case may be, referred to him for Legal Service and has held a post in
(b) in so far as it relates to transfer to such Bench as the Grade 1 of that Service for at least
Administrative Tribunals for States, to Chairman may deem fit." three years.
the whole of India, except the State of
Jammu and Kashmir." Section 6 deals with the qualifications (3-A) A person shall not be qualified
of the personnel of the Tribunal. Since for appointment as an Administrative
Section 3 is the definition clause. the first few sub-sections of Section 6 Member unless he -
are required to be considered
Chapter II ("Establishment of Tribunals (a) has, for at least two years, held the
subsequently, they may be reproduced
and Benches thereof'') contains post of an Additional Secretary to the
hereunder :
Sections 4 to 13. Section 4 empowers Government of India or any other post
the Central Government to establish : "6. Qualifications for appointment of under the Central or a State
Chairman, Vice-Chairman or other Government carrying a scale of pay
(1) a Central Administrative Tribunal which is not less than that of an
Members - (1) A person shall not be
with Benches at separate places : Additional Secretary to the
qualified for appointment as the
Chairman unless he - Government of India; or
(2) an Administrative Tribunal for a
State which makes a request in this (b) has, for at least three years, held
(a) is, or has been, a Judge of a High
behalf; and the post of a Joint Secretary to the
Court; or
Government of India or any other post
(3) a Joint Administrative Tribunal for under the Central or a State
(b) has, for at least two years, held the
two or more States which enter into an Government carrying a scale of pay
office of Vice-Chairman;
agreement for the purpose. which is not less than that of a Joint
(c) ... ... ... Secretary to the Government of India,
Section 5 states that each Tribunal
and shall, in either case, have
shall consist of a Chairman and such (2) A person shall not be qualified for adequate administrative experience.
number of Vice-Chairmen and Judicial appointment as the Vice- Chairman
and Administrative Members as may unless he - Sub-sections (4), (5) and (6) of Section
be deemed necessary by the 6 provide that all the Members of the
appropriate Government. Sub-section (a) is, or has been, or is qualified to be Central Administrative Tribunal, the
(2) of Section 5 requires every Bench a Judge of a High Court; or State Administrative Tribunals and the
to ordinarily consist of one Judicial Joint Administrative Tribunals shall be
Member and one Administrative (b) has, for at least two years, held the appointed by the President; in the case
Member. Sub-section (6) of Section 5, post of a Secretary to the Government of the State Administrative Tribunals
which enables the Tribunal to function of India or any other post under the and the Joint Administrative Tribunals,
through Single Member Benches is the Central or a State Government the President is required to consult the
focus of some controversy, as will carrying a scale of pay which is not concerned Governor(s). Sub-section
subsequently emerge, and is fully less than that of a Secretary to the (7) stipulates that the Chief Justice of
extracted as under : Government of India; or India is also to be consulted in the
appointment of the Chairman, Vice-
"Section 5(6) - Notwithstanding (bb) has for at least five years, held the
chairman and Members of all Tribunals
anything contained in the foregoing post of an Additional Secretary to the
under the Act.
provisions of this section, it shall be Government of India or any other post
competent for the Chairman or any under the Central or a State Section 8 prescribes the terms of office
other Member authorised by the Government carrying a scale of pay of the personnel of the Tribunal as
Chairman in this behalf to function as a which is not less than that of an being for a duration of five years from
Bench consisting of a single Member Additional Secretary to the the date of entering into office; there is
and exercise the jurisdiction, powers Government of India; or also provision for reappointment for
and authority of the Tribunal in respect another term of five years. The
of such classes of cases or such
maximum age limit permissible for the Section 17 provides that the Tribunals interim order dated October 31, 1985,
Chairman and the Vice-Chairman is 65 under the Act will have the same reported as S.P. Sampath Kumar v.
years and for that of any other Member powers in respect of contempt as are Union of India, (1985) 4 SCC 458,
is 62 years. Section 10 stipulates that enjoyed by the High Courts. Apex Court directed the carrying out of
the salaries, terms and conditions of all certain measures with a view to
Members of the Tribunal are to be Chapter IV ("Procedure") comprises ensuring the functioning of the Tribunal
determined by the Central Sections 19 to 27. Section 21 specifies along constitutionally sound principles.
Government; such terms are, however, strict limitation periods and does not
not to be varied to the disadvantage of vest the Tribunals under the Act with When Sampath Kumar's case (AIR
any Member after his appointment. the power to condone delay. 1987 Sc 386) was finally heard, these
changes had already been
Chapter III ("Jurisdiction, powers and Chapter V ("Miscellaneous"), the final incorporated in the body and text of
authority of tribunals") consists of Chapter of the Act, comprising the Act. The Court took the view that
Sections 14 to 18. Section 14, 15 and Sections 28 to 37, vests the Tribunals most of the original grounds of
16 deal with the jurisdiction, powers under the Act with ancillary powers to challenge - which included a challenge
and authority of the Central aid them in the effective adjudication of to the constitutional validity of Article
Administrative Tribunal, the State disputes. Section 28 the "exclusion of 323A - did not survive and restricted its
Administrative Tribunals and the Joint jurisdiction" clause reads as follows : focus to testing only the constitutional
Administrative Tribunals respectively. validity of the provisions of the Act. In
These provisions make it clear that "28. Exclusion of jurisdiction of courts - its final decision, the Court held that
except for the jurisdiction of this Court, On and from the date from which any though judicial review is a basic
the Tribunals under the Act will jurisdiction, powers and authority feature of the Constitution, the vesting
possess the jurisdiction and powers of becomes exercisable under this Act by of the power of judicial review in an
every other Court in the country in a Tribunal in relation to recruitment alternative institutional mechanism,
respect of all service-related matters. and matters concerning recruitment to after taking it away from the High
Section 14 provides - any Service or post or service matters Courts, would not do violence to the
concerning members of any Service or basic structure so long as it was
"Jurisdiction, powers and authority of persons appointed to any Service or ensured that the alternative
the Central Administrative Tribunal :- post, no court except- mechanism was an effective and real
substitute for the High Court. Using
1. Save as otherwise expressly (a) the Supreme Court; or
this theory of effective alternative
provided in this Act, the Central institutional mechanism as its
Administrative Tribunal shall exercise, (b) any Industrial Tribunal, Labor Court
or other authority constituted under the foundation, the Court proceeded to
on and from the appointed day, all the analyse the provisions of the Act in
jurisdiction, powers and authority Industrial Disputes Act, 1947 or any
other corresponding law for the time order to ascertain whether they passed
exercisable immediately before this constitutional muster. The Court came
day by all Courts (except the Supreme being in force,
to the conclusion that the Act, as it
Court) in relation to - stood at that time, did not measure up
shall have, or be entitled to exercise
any jurisdiction, powers or authority in to the requirements of an effective
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
relation to such recruitment or matters substitute and, to that end, suggested
(b) all service matters concerning - concerning such recruitment or such several amendments to the provisions
service matters." governing the form and content of the
(i) and (ii) . . . . . . . . . . . . . . . . . . . . . . . Tribunal. The suggested amendments
Pursuant to the provisions of the were given the force of law by an
(iii) a civilian not being a member of an above said Act, the Central amending Act (Act 51 of 1987) after
All India Service or a person referred Administrative Tribunal, with five the conclusion of the case and the Act
to in Cl. (c) appointed to any defence Benches, was established on has since remained unaltered.
services or a post connected with November 1, 1985. However, even
defence, before the Tribunal had been Q. 34. Discuss the jurisdiction and
established, several writ petitions had scope, powers of Central
and pertaining to the service of such been filed in various High Court as well Administration Tribunal.
member, person or civilian, in as Supreme Court challenging the
connection with the affairs of the Union constitutional validity of Article 323A of
or of any State or of any local or other the Constitution as also the provisions
authority within the territory of India or Ans. The powers exercised by the
of the Act; the principal violation
under the control of the Government of Central Administration Tribunal shall
complained of being the exclusion of
India or of any Corporation or society be similar to those exercised by Courts
the jurisdiction of this Court under
owned or controlled by the immediately before the
Article 32 of the Constitution and of
Government." commencement of this Act. However,
that of the High Courts under Article
the powers of Supreme Court are not
226 of the Constitution. Through an
fettered by this Act.
The Central Administrative Tribunal relevant service rules as to redressal By the best definition of `Administrative
shall exercise its powers in relation to - or grievance. Discretion', we mean that "a
determination may be reached, in part
(i) recruitment, and matters concerning Following are the conditions when a at least, upon the basis of
recruitment, to any All India service or person shall be deemed to have consideration not entirely susceptible
to any civil service or to any civil availed of all the remedies available to of proof or disproof. It may be
service of the Union or a civil post him - practically convenient to say that
under the Union or to post connected discretion includes the case in which
with defence or in the defence (i) If a final order has been made by the ascertainment of fact is legitimately
services, being in either case, a post the Government, or left to administrative determination."
filled by a civilian; and Grounds to challenge conferment of
(ii) Such final order has been made by
power - (i) The Act does not lay down
(ii) all service matters concerning - other authority or officer, or other
any guideline for the exercise of the
person competent to pass such order
power by the delegated authority as a
(a) a member of an All India Service; under such rules, rejecting any appeal
result of which the authority is in a
or preferred or representation made by
position to act according to his whims.
such person in connection with the
(b) a person appointed to any civil In other words, the Act conferred
grievance, or
service of the Union or any civil post unguided power on the authority and is
under the Union [not being a member (iii) Where no final order has been therefore ultra vires (A. N.
of an All India Service of a person made by the Government or other Parasuraman v. State of T. N. AIR
referred to in (iii)] authority or officer or person 1990 SC 40). (ii) If a statute does not
competent to pass such order with disclose a definite policy or the
(c) a civilian appointed to any defence regard to appeal preferred or objective, subject to which the
service or a post connected with representation made by such person, if administrative power is to be exercised
defence [not being a member of All a period of six months from the date then the statute may be held to be
India Service or a person referred to in on which such appeal was preferred or discriminatory or restrictive of
(iii)] representation was made has expired. fundamental freedoms. Thus, this
ground relates to the constitutionality
(iii) all service matters pertaining to Q. 35. What do you mean by of the law under which such powers
service in connection with the affairs of Administrative Discretion. State the are delegated with reference to the
the Union concerning a person grounds on which the conferment, fundamental rights.
appointed to any civil service of the non-use and abuse of discretion
Union or any civil post under the Union can be challenged in a court of law Grounds to challenge abuse of
or concerning a civilian who has been ? discretion - (i) The authority has acted
appointed to any defence service or a mala fide i.e. with dishonest intention
post connected with defence and a Ans. Administrative Discretion - or corrupt motive. For example,
person whose services have been Administrative Discretion means administrative action is used against
placed by a State Government or any choosing from amongst the various an individual for satisfying a private or
local or other authority or any available alternatives but with personal grudge of the authority. In
Corporation or Society or other body, reference to the rules of reason and Rowjee v. State of A. P., held that
at the disposal of the Central justice and not according to personal Chief Minister had acted mala fide in
Government for such appointment. whims. Such exercise is not to be giving directions regarding the
arbitrary, vague and fanciful, but legal selection of particular transport routes
When the jurisdiction can be attracted and regular. for nationalization, as he sought to
? The jurisdiction of Administrative take vengeance against the private
Tribunal can only be attracted when it The government cannot function operators on those routes, as they
is proved that other remedies have without the exercise of some discretion were his political opponents.
been exhausted [Section 20]. When by the officials. It is necessary not only
the Tribunal satisfies that other for the individualization of the (ii) The authority has taken irrelevant
remedies have been exhausted then administrative power but also because consideration or has failed to take into
only it will entertain the application it is humanly impossible to modern account relevant considerations. In
otherwise not. government. But it is equally true that State of Bombay v. K. P. Krishnan, the
the absolute discretion is a ruthless government refused to refer an
In this regard sub-section (1) to master. It is more destructive of industrial dispute for adjudication for
Section 20 says that : freedom than any of man's other the reason that the "workmen resorted
inventions. Therefore, a reasonable to a go slow during the year". Held that
A tribunal shall not, ordinarily, admit an exercise of discretion is the need of the government acted for an improper
application unless it is satisfied that the the hour. purpose or it took into account
applicant had availed of all the irrelevant considerations.
remedies available to him under the
(iii) The authority has not acted on any Ans. Jucicial Review : Meaning - conflicting values. The court is not an
material but has acted in an arbitrary Judicial review is a great weapon in appellate forum where the correctness
manner. In stilekha Vidyarthi v. State the hands of judges. It comprises the of the order of Government could be
of U.P. removal en bloc of all District power of a court to hold convassed and, indeed it has no
Government Pleaders in the State was unconstitutional and unenforceable jurisdiction to substitute its own view.
held to be arbitrary and violative of any law or order based upon such law However, since the legislature cannot
Article 14 of the Constitution. or any other action by a public have intended that the executive be
authority which is inconsistent or in the final judge of the extent of its own
Where the Indian Oil Corporation, a conflict with the basic law of the land : powers, the courts have come into
public sector corporation, abruptly picture and keep administration within
stopped giving supplies of lubricants to Broadly speaking, judicial review in the confines of the law.
a firm which had been carrying on the India deals with three aspects;
business of sale of lubricants for last The courts are concerned with legality
18 years, and no notice was given of (i) Judicial review of legislative action; rather than with the merits of an
such stoppage of supply, the action administrative order. They would not
was held to be arbitrary (Mahabir Auto (ii) Judicial review of judicial decision; go into the question whether there was
Stores v. Indian Oil Corpn.). (iv) The and sufficient or adequate or satisfactory
subjective satisfaction of the authority material for the authority to form its
(iii) Judicial review of administrative
is based on non-relevant and opinion.
action.
extraneous considerations. For
example, refusal to grant licence The judicial control of administrative
We are concerned with the last aspect,
should not be based on irrelevant discretion in U. K., U.S.A. and India
namely, judicial review of
considerations (State of U.P. v. Raja converges on the same point despite
administrative action.
Ram Jaiswal AIR 1985 SC 1108). divergent constitutional
Grounds to challenge non-use of The underlying object of judicial review structurizations. In U.K., the courts
discretion - (i) The authority exercises is to ensure that the authority does not have always held that the concept of
its discretion under dictation from a abuse its power and the individual `unfettered discretion' is a
superior authority and does not receives just and fair treatment and not constitutional blasphemy. In U.S.A.
consider the matter itself. In State of to ensure that the authority reaches a besides the judicial review of
Punjab v. Hari Kishan, the application conclusion, which is correct in the eye administrative discretion which is
for grant of a cinema license made to of law. available in the `due process clause',
the licensing authority, was forwarded the Administrative Procedure Code,
to the State Government. The court Judicial review of administrative action 1946 specifically provides for judicial
quashed the said procedure. is perhaps the most important review. In India, there is no such
development in the field of public law specific provision, so the power of
(ii) The authority fetters its discretion in the second half of this century. In judicial review arises from the
by declaration of rules or policy to be India, the doctrine of judicial review is constitutional configuration of courts.
followed by it uniformly in all cases, the basic feature of our Constitution.
instead of applying it from case to case Judicial review is the most potent Though courts in India have developed
(Shri Rama Sugar industries Ltd. v. weapon in the hands of the judiciary a few effective parameters for the
State of A.P.). (iii) The authority acts for the maintenance of the rule of law. proper exercise of discretion, the
mechanically and without due care. In Judicial review is the touchstone of the conspectus of judicial behavior still
Nandlal v. Bar Council, Gujarat, the Constitution. remains halting, variegated and
Bar Council immediately acted on a residual and lacks the activism of the
complaint by a person against a In recent times, judicial review of American courts.
lawyer, in disfavour of the lawyer. The administrative action has become
court held that "some investigation" extensive and expansive. The Judicial Review : Limitations - Judicial
has to be conducted by Council, traditional limitations have vanished review has certain inherent limitations.
before acting on a complaint and and the sphere of judicial scrutiny is It is suited more for adjudication of
referring matter to the disciplinary being expanded. Under the old theory, disputes than for performing
committee. the courts used to exercise power only administrative functions. It is for the
in cases of absence or excess or executive to administer the law and the
(iv) The authority sub-delegates its abuse of power. As the State activities function of the judiciary is toe ensure
power, while the statute does not have become pervasive and giant that the Government carries out its
contain an express provision to this public corporations have come in duty in accordance with the provisions
regard. of the Constitution.
existence, the stake of public
exchequer justifies larger public audit
Q. 36. Discuss the nature and scope The duty of the court is to confine itself
and judicial control.
of Judicial Review over to the question of legality. It is to
Administrative Actions. The pattern of judicial review in this consider whether a decision-making
area reflects reconciliation of two authority exceeded its powers,
committed an error of law, violated relevant factors or taken into account (1) express malice or "malice in fact",
rules of natural justice, reached a irrelevant factors. The decision of the and
decision which no reasonable man administrator must have been within
would have reached or otherwise the four corners of the law, and not (2) implied or legal malice or "malice in
abused its powers. Though the court is one, which no sensible person could law".
not expected to act as a court of have reasonably arrived at, having
appeal, nevertheless it can examine regard to the above principles, and Mala fides violating proceedings may
whether the "decision making process" must have been a bona fide one. The be factual or legal. Former is actuated
was reasonable, rational, not arbitrary decision could be one of many choices by extraneous considerations whereas
or not violative of Article 14 of the open to the authority but it is for that the latter be without malicious intention
Constitution. The parameters of authority to decide upon the choice or improper motive. In other words, a
judicial review must be clearly defined and not for the Court to substitute its plea of mala fide involves two
and never exceeded. If the authority view. questions :
has faltered in its wisdom, the court
To characterize a decision of the (i) whether there is a personal bias or
cannot act as super auditor. (S. R.
administrator as "irrational" the Court oblique motive; and
Bommai v. Union of India (1994) 3
SCC 1) Unless the order passed by an has to hold, on material , that if is a
(ii) whether the administrative action is
administrative authority is unlawful or decision "so outrageous", as to be in
contrary to the objects, requirements
unconstitutional, power of judicial total defiance of logic or moral
and condition of a valid exercise of
review cannot be exercised. An order standards.
power.
of administration may be right or
wrong. It is the administrator's right to Q. 37. Discuss mala fides as a
Burden of Proof in Mala Fides - Mala
trial and error and so long as it is bona ground of challenge of
fide exercise of power is required to be
fide and within the limits of the administrative action. State the
proved by the person who alleges it.
authority, no interference is called for. rules regarding burden of proof in
Unlike the case of bias where it is
In short, power of judicial review is petition on this ground.
enough to prove the "likelihood" of
supervisory in nature. Unless this bias, in the case of mala fide the actual
Ans. Mala Fides - It means dishonest
restriction is observed, the court, under prejudice has to be proved. That is
intention or corrupt motive. Mala fide
the guise of preventing abuse of power why it is difficult to prove mala fides.
exercise of power does not necessarily
by the administrative authority, will The following factors are important in
imply any moral turpitude as a matter
itself be guilty of usurping power (S.R. the proof of mala fides :
of law. It only means that the statutory
Bommai's case). In "Indian Railway
power is exercised for purposes
Construction Co. Ltd. v. Ajay Kumar" (i) Direct evidence (e.g. documents,
foreign to those for which it is in law
AIR 2003 SC 1843 it was observed tape-recording, etc.)
intended. In this sense, mala fides is
that Administrative action is stated to
equated to any ultra vires exercise of (ii) Course of events
be referable to broad area of
administrative power. However, the
governmental activities in which the
term is not used in such a broad (iii) Public utterances of the authority
repositories of power may exercise
sense, but in the narrow sense i.e.
every class of statutory function of
dishonest intent. (iv) Deliberate ignoring of facts by the
executive, quasi-legislative and quasi-
authority
judicial nature. It is trite law that In Pratap Singh v. Punjab (AIR 1964
exercise of power, whether legislative SC 72), the court used the phrase (v) Failure to file affidavits denying the
or administrative, will be set aside if mala fides for initiating administrative allegation of mala fides.
there is manifest error in the exercise action against an individual "for
of such power or the exercise of the satisfying a private or personal grudge However, if the allegations are of wild
power is manifestly arbitrary. of the authority". nature, there is no need of
controverting allegations.
The Court will be slow to interfere in Though precise and scientific definition
such matters relating to administrative of the expression "mala fide" is not In Shivajirao Patil v. Mahesh Madhav
functions unless decision is tainted by possible, it means ill-will, dishonest AIR 1987 SC 294 , the High Court
any vulnerability like illegality, intention or corrupt motive. A power observed that although there was no
irrationality and procedural impropriety. may be exercised maliciously, out of direct evidence it could reasonably be
Whether action falls within any of the personal animosity, ill-will or inferred that tampering with the
categories has to be established. Mere vengeance or fraudulently and with answer-books in the university
assertion in that regard would not be intent to achieve an object foreign to examination had been done at the
sufficient. the statute. command of the Chief Minister. The
Supreme Court on appeal held that
To arrive at a decision on From the above definition, it can be though no clean chit could be given to
"reasonableness" the Court has to find said that malice is of two types : the Chief Minister, the High Court's
out if the administrator has left out
observation has no legal basis. This
case shows that it is difficult to prove by a party, particularly when the Chiranjit Lal v. Union of India, 1950
mala fides. imputations are grave and they are SCR 869].
made against the holder of an office
In "Indian Railway Construction Co. which has a high responsibility in the In "Janardhan Reddy v. State of
Ltd. v. Ajay Kumar" AIR 2003 SC 1843 administration. Hyderabad" AIR 1951 SC 217 it was
it was observed that while examining observed that the power given to the
the question as to practicability or Q. 38. "The powers of Supreme Supreme Court under this provision is
otherwise of holding the enquiry where Court under Article 32(2) are very a large one, but it has to be exercised
the High Court had proceeded on the wide". Discuss the statement with in accordance with well-established
footing as if the order of dispensing illustration from decided cases. principles. The writs under the article
with enquiry was mala fide; even when must obviously be correlated to one or
there was no specific allegation of Ans. The Founding Fathers of the more of the fundamental rights
mala fides and without any specific Constitution of India were aware of the conferred by Part III of the Constitution
person against whom mala fides were part played by prerogative writs in and can be made only for the
alleged being impleaded in the England. In these circumstances, they enforcement of such rights.
proceedings and except making a bald have made specific provisions in the
statement regarding alleged Constitution itself empowering the The right to move the Supreme Court
victimization and mala fides, no Supreme Court and High Courts to by appropriate proceedings for the
specific details were given, the issue writs in the nature of habeas enforcement of the rights conferred by
approach of the High Court could not corpus, mandamus, prohibition, quo Part III of the Constitution is itself a
be said to be in the correct perspective warranto and certiorari for enforcement fundamental right. That being so, a
and proper. of Fundamental Rights (Articles 32 and right to obtain a writ when the
226) petitioner establishes a case for it,
Doubtless, he who seeks to invalidate must equally be a fundamental right. It
or nullify any act or order must Article 32 confers powers on the is, therefore, not merely a right of an
establish the charge of bad faith, an Supreme Court to enforce fundamental individual to move the Supreme Court,
abuse or a misuse by the authority of rights Clause (1) of the Article but also the duty and responsibility of
its powers. While the indirect motive or guarantees the rights to more the Supreme Court to protect the
purpose, or bad faith or personal ill-will Supreme Court for enforcement of Fundamental Rights. (Daryao v. State
is not to be held established except on rights enumerated under Article 32 and of U. P. AIR 1961 SC 1457) The
clear proof thereof, it is obviously clause (2) provides for the powers to Article aims at the enforcement of
difficult to establish the state of a the Supreme Court to issue directions, fundamental rights, no matter the
man's mind, for that is what the orders or writs including the writs of necessity for such enforcement arises
employee has to establish, though this the nature of habeas corpus, out of an executive action or any
may sometimes be done. The difficulty mandamus, certiorari, prohibition and action of the Legislature. If the
is not lessened when one has to quo warranto. Thus, any one who Legislature enacts any law, the
establish that a person apparently comes to this court with complaint that enforcement whereof might abridge or
acting in the legitimate exercise of his fundamental rights have been take away the rights granted under
power has, in fact, been acting mala infringed by the acts of the Chapter III, in that case the enactment
fide in the sense of pursuing an Government or any other body of might also be turned down by the
illegitimate aim. It is not the law that persons appointed by the Government, Supreme Court. In Kochuni v. State of
mala fide in the sense of improper the court has power to issue Madras, AIR 1959 SC 725, the
motive should be established only by directions, orders or writs, as it might Supreme Court pointed out that there
direct evidence. But it must be consider appropriate. might be a case where an enactment
discernible from the order impugned or of the legislature might immediately on
must be shown from the established It is said that the powers guaranteed coming into force take away or abridge
surrounding factors, which preceded under Article 32(2) are of far reaching the fundamental rights of a person by
the order. If bad faith would vitiate the importance. They provide adequate its very terms and without any further
order, the same can be deduced as a remedies against the misuse and act being done. "In such a case the
reasonable and inescapable inference abuse of the powers by the infringement of a fundamental right is
from proved facts. It cannot be administrative authorities. complete to frustrate the passing of the
overlooked that burden of establishing enactment and, therefore, there can be
The Supreme Court enjoys a broad
mala fides is very heavy on the person no reason why the person so
discretion in the matter of the framing
who alleges it. The allegations of mala prejudicially affected should not be
of the writs to suit the exigencies of the
fides are often more easily made than entitled immediately to avail himself of
particular cases and the application of
proved, and the very seriousness of the constitutional right has been
the petitioner cannot be thrown out by
such allegations demands proof of a infringed by the mere operation of an
the court simply on the ground that the
high order of credibility. Courts would enactment, is not entitled, to invoke
proper writ or direction has not been
be slow to draw dubious inferences the jurisdiction of this court under
prayed for [per Justice Mukherjee in
from incomplete facts placed before it Article 32, for the enforcement of his
right, will be to deny him the benefits of Ans. Scope of Article of 226 of injustice has resulted on account of
a statutory constitutional remedy which Constitution - Article 226 empowers any erroneous interpretation of law. If
is itself his fundamental right". The every High Court to issue directions, justice became the byproduct of an
court further pointed out that if a order or writs in the nature of habeas erroneous view of law the High Court
Statute took away or abridged, by its corpus, mandamus, prohibition, quo is not expected to erase such justice in
very terms and without anything more warranto and certiorari or any of them. the name of correcting the error of law.
being done to the petitioner's Such directions, orders or writs may be
fundamental right a declaration as to issued : In "T.K. Rangarajan v. Govt. of T.N."
the individuality of the impugned act AIR 2003 SC 3032 it was observed
together with the consequential relief (i) for enforcement of fundamental that it is established principle that
by way of injunction restraining the rights, or where there is an alternative, effective,
respondent from asserting any right efficacious remedy available under the
under the enactment so declared void, (ii) for any other purpose. law, the High Court would not exercise
would be the appropriate remedy and its extraordinary jurisdiction under
So far as the enforcement of Article 226 and that has been
the petitioner would be entitled to get
fundamental rights is concerned, the reiterated by holding that the litigants
it.
jurisdiction of the High Court is must first approach the Tribunals
Since Article 32 is itself a fundamental substantially the same. If there is which act like Courts of first instance in
right, it cannot be whittled down by a violation of a fundamental right and it respect of the areas of law for which
legislation. It can be invoked even is the duty of the Supreme Court to they have been constituted and
where an administrative action has enforce it, it is absurd to contend that therefore, it will not be open to the
been declared as final by the statute. there is no such duty on High Courts to litigants to directly approach the High
grant relief in case of violation of Court even where the question of vires
In Prem Chand v. Commissioner [AIR fundamental rights. In Devilal v. STO, of the statutory legislation is
1963 SC 996], the Supreme Court AIR 1965 SC 1150 : (1965) 1 SCR challenged. But High Court is
struck down one of its own rules, 686. It was observed "There can be no empowered to exercise its
requiring furnishing of a security to doubt that the Fundamental Rights, extraordinary jurisdiction to meet
move a writ under Article 32 as guaranteed to the citizens are a unprecedented extraordinary situation
unconstitutional on the ground that it significant feature of our Constitution having no parallel. When the State
retarded the assertion or vindication of and the High Courts under Article 226 Government has dismissed 2 lac
the fundamental right under Article 32. are bound to protect these employees for going on strike, the
Fundamental Rights." situation is very very exceptional.
In Fertilizer Corporation Kamgar Union There was no justifiable reason for the
v. Fertilizer Corporation, AIR 1981 SC In Mohd. Hanif v. State of Assam,
High Court not to entertain the
344, the jurisdiction conferred on (1969) 2 SC 782 it was observed that
petitions on the ground of alternative
Supreme Court has been "The jurisdiction of High Courts under
remedy provided under the statute.
characterized as an important and Article 226 of the Constitution is
integral part of the basic structure of equitable and should be exercised to In "Chairman and Managing Director,
the Constitution as it is meaningless to ensure that the law of the land is United Commercial Bank v. P. C.
confer fundamental rights without obeyed and public authorities are kept Kakkar" AIR 2003 SC 1571 it was
providing an effective remedy for their within the limits of their jurisdiction. In observed that the Court should not
enforcement, if and when they are a proceeding under Article 226, the interfere with the administrator's
violated. "A right without a remedy is a High Court does not determine private decision unless it was illogical or
legal conundrum of a most grotesque rights of parties. It is a remedy against suffers from procedural impropriety or
kind". violation of rights by State or statutory was shocking to the conscience of the
authorities. It is a remedy in public Court, in the sense that it was in
Thus, the provisions under Article 32 law." defiance of logic or moral standards.
have conferred very wide power on the The Court would not go into the
Supreme Court. In D C. State of Bihar, In "Roshan Deen v. Preeti Lal" AIR
correctness of the choice made by the
AIR 1987 SC 579, it was held that a 2002 SC 33 it was observed that the
administrator open to him and the
writ petition is maintainable under power conferred on the High Court
Court should not substitute its decision
Article 32 to ensure proper under Arts. 226 and 227 of the
to that of the administrator. The scope
implementation of the constitutional Constitution is to advance justice and
of judicial review is limited to the
provisions. not to thwart it. The very purpose of
deficiency in decision-making process
such constitutional powers being
and not the decision.
Q. 39. What is the scope of Article conferred on the High Courts is that no
226 of India Constitution regarding man should be subjected to injustice To put it differently, unless the
the power of High Court to control by violating the law. The look out of the punishment imposed by the
the Administrative Act ? High Court is, therefore, not merely to Disciplinary Authority or the Appellate
pick out any error of law through an Authority shocks the conscience of the
academic angle but to see whether Court/Tribunal, there is no scope for
interference. Further to certain Thus, the powers of the High Court are Constitution. It is a rule of policy and
litigation it may, in exceptional and rare very wide. It has been empowered to practice and not a rule of law. It is a
cases, impose appropriate punishment issue writs or directions against all question of discretion and not of
by recording cogent reasons in support governmental authorities. Its jurisdiction. Therefore, in exceptional
thereof. In the normal course if the jurisdiction is extraordinary, because case a writ can be issued
punishment imposed is shockingly these powers confer discretion of very notwithstanding the fact that an
disproportionate it would be extensive nature. alternative remedy is available to the
appropriate to direct the Disciplinary party and has not been availed of.
Authority or the Appellate Authority to Q. 40. Discuss the principles which (Union of India v. T.R. Verma, AIR
reconsider the penalty imposed. would regulate the exercise of 1957 SC 882) Thus, if there is violation
jurisdiction under Article 226. of a fundamental right, an aggrieved
The power of the High Court under the party has the right to move the
Article is not confined to issuing of Ans. The powers granted the High Supreme Court under Article 32 or a
writs; it is broader, for under it, a High Courts under the Article are High Court under Article 226. Similarly,
Court may also issue a suitable discretionary one. The discretion of the if the remedy provided by the Statute
direction or order. Further the words in High Court has been found to have cannot be said to be alternative,
the Article in the nature of writs been used very widely. But the very adequate or equally efficacious or the
presumably imply that the High Court vastness of the powers imposes on it Act by which such a remedy is
is not bound to follow all procedural the responsibility to use them with provided is itself ultra vires or
technicalities of the English law circumspection. Accordingly, the High unconstitutional or the impugned order
relating to writs, or changes of judicial Courts will be required to exercise the is without jurisdiction or violative of the
opinions from case to case. What jurisdiction in accordance with judicial principles of natural justice, the court
appears to be necessary is that the considerations and well established can grant relief to the petitioner.
High Courts keep the broad and principles. We have seen some
fundamental principles of these writs constitutional limitations upon the (2) Delay :- The conduct of the
as followed in the English Law. exercise of the powers under this petitioner will be taken into account
Basappa v. Nagappa, AIR 1954 SC Article. Such limitations are self- when the court is considering his
440. In 1976, Article 226 was subject imposed or they may be called petition. Inordinate delay in invoking
to an important change and the scope limitations inherent in the exercise of the jurisdiction of High Court may be a
of Article 226 has been restricted to the discretion and jurisdiction. The good ground for declining to grant a
fundamental rights only if there was following are some of the principles writ under Article 226. The petitioner
another remedy available for the which govern such limitations : should expeditiously come with the
redress of the injury caused. But, the petition before the High Court.
Forty-fourth Amendment Act, 1978 has (1) An adequate alternative remedy :-
restored the original position of the It is well-established that the remedy In Durga Prasad's case AIR 1964 SC
Article 226 in this context. provided for in Article 226 of the 1006, it was observed that It is well
Constitution is a discretionary remedy settled that under Article 226, the
There are following three-fold and the High Court has always the power of a High Court to issue an
restrictions on their exercise of the discretion to refuse to grant such a appropriate writ is discretionary. One
power to issue writs - relief in certain circumstances even of the grounds for refusing relief under
though a legal right might have been Article 226 is that the petitioner has
(1) In the first place, the power is to be infringed. Availability of an alternative been guilty of delay and laches. It is
exercised "throughout the territories in remedy is one of such considerations, imperative, if the petitioner wants to
relation to which it exercises which the High Court may take into invoke the extraordinary remedy
jurisdiction", i.e. writs issued by the account to refuse to exercise its available under Article 226 of the
court cannot run beyond the territories discretion (Than Singh's case AIR Constitution that he should come to
subject to its jurisdiction. 1964 SC 1419) The underlying object the court at the earliest reasonably
is apparent and obvious. High Courts possible opportunity. Inordinate delay
(2) Secondly, the person or authorities are the apex judicial institutions in the in making the motion for a writ will be a
to which the High Court issues such States and it is but natural that if an good ground for refusing to exercise
writs must be "within those territories." alternative, adequate and equally the discretion. It is essential that
It clearly implies that they must be efficacious remedy is available to the persons who are aggrieved by any
amenable to its jurisdiction either by party, they may refuse to exercise this order of the Government or any
residence or location within those extraordinary jurisdiction and direct the executive action should approach the
territories. aggrieved party to first avail of the said High Court with utmost expedition.
alternative remedy.
(3) The powers so conferred on the (3) Suppression of fact :- The
High Courts should not be in It should, however, be remembered petitioner must come with clean hands.
derogation of the powers conferred on that the existence of an alternative He should not conceal or suppress any
the Supreme Court by clause (2) of remedy is not an absolute bar to the fact which is material in the
Article 32. granting of writ under Article 226 of the consideration for the grant of the writ.
In Narain Das v. State, AIR 1953 Ans. Habeas Corpus - The writ of a person from illegal detention and not
Punjab, 1233 it was observed that if habeas corpus is one of the most to punish the detaining authority. The
the applicant, for a writ under Article ancient writs known to the common question for a habeas corpus court is
226, is guilty of the suppression of law of England. whether the subject is lawfully
material facts in his application and an detained. If he is, the writ cannot issue,
attempt to mislead the court thereby Habeas corpus is a prerogative writ, if he is not, it must issue.
has been made, his petition will be which was granted to a subject of His
rejected and the court should refuse to Majesty, who was detained illegally in History - In England, habeas corpus is
consider it on merits. jail. So habeas corpus is an order of of common law origin. In India, the
release. The words "habeas corpus jurisdiction to issue prerogative writs
In Vijay Kumar v. State, AIR 1983 SC and Subjiciendum" literally mean to came with the establishment of
622, it was held It is well settled that a have the body. It was defined in Supreme Courts at Calcutta, Bombay
party seeking relief under Article 32 or Halsbury's Law's of England in the and Madras under the Regulating Act,
under Article 226 of the Constitution following manner : 1773. On abolition of Supreme Courts
must be truthful, frank and open. He and establishment of High Courts, the
should disclose all relevant facts "Writ of habeas corpus is a prerogative said power had been conferred on
without any reservation. He cannot process for securing the liberty of the High Courts. Under the Constitution of
pick and choose the facts he likes to subject by affording an affective India, the Supreme Court (Article 32)
disclose and keep back or conceal means of immediate release from and all High Courts (Article 226) have
other facts. The very basis of the writ unlawful, unjustifiable detention and is power to issue a writ of habeas
jurisdiction rests on disclosure of available against the Executive". corpus.
correct facts. If material facts are
suppressed, twisted or distorted, the In Dhananjay Sharma v. State of Who may apply - An application for
very functioning of writ courts would Haryana, AIR 1995 SC 1795 it was writ of Habeas Corpus may be made
become impossible. observed that whenever a question is by the person illegally detained. But if
raised regarding the illegal detention of the prisoner himself is unable to make
(4) Futility of the writ :- "If the writ a citizen in a writ of Habeas Corpus such application, it can be made by
applied for is not likely to serve any and the Court issues the rule nisi, a any other person having interest in the
useful purpose the court may in its duty is cast on the State, through its prisoner.
discretion reject the application on this functionaries and particularly those
ground". Ravindra Nath v. Tax Officer who are arrayed as respondents to the Against whom habeas corpus would lie
AIR 1967 Mad. 299, Abdul Ghafoor v. writ petition, to satisfy the Court that - A writ of habeas corpus may be
State AIR 1968 M. P. 29. In Suresh v. the detention of the citizen was legal issued against any person or authority
Vasant AIR 1970 SC 1680, the and in conformity not only with the who has illegally detained or arrested
Supreme Court stated the High Court mandatory requirements of the law but the prisoner.
while granting relief under Article 226 also with the requirements implicit in
should keep in view that no injustice Article 22(5) of the Constitution of Procedure - Every application for the
will cause to opposite parties and that India. It is obligatory on the part of the writ of habeas corpus must be
the issue of writ will not be futile. Thus State to place before the Court all accompanied by an affidavit stating the
the court refused to issue a writ relevant facts relating to the impugned facts and circumstances leading to the
against a student who was admitted to detention truly, clearly and with utmost making of such an application. If the
certain course and was about to fairness through an affidavit. An court is satisfied that there is a prima
complete it successfully when the affidavit in reply is required to be filed facie case for granting the prayer, it
petitioner himself is not eligible for by the respondents not as a mere will issue a rule nisi calling upon the
admission to that course. formality but to truly assist the Court in detaining authority on a specified day
drawing permissible inference from the to show cause as to why the rule nisi
(5) Disputed question of fact :- The rival contentions. The right of personal should not be made absolute. On the
High Court is not required to dispose liberty of a citizen is all too precious specified day, the court will consider
of disputed question of fact. and no one can be permitted to the merits of the case and will pass an
Proceedings under Article 226 are of interfere with it except in accordance appropriate order. If the court is of the
summary nature. In Raja Ram v. State, with the procedure established by law. opinion that the detention was not
AIR 1958 All. 141 it was held that The State owes an obligation to the justified, it will issue the writ and direct
where the rights claimed by the Courts to place all relevant facts the detaining authority to release the
applicant cannot be conveniently before the Court in all cases where a prisoner forthwith. On the other hand,
determined in such summary citizen with his fundamental rights if according to the court, the detention
proceedings the High Court in exercise alleges interference. was justified, the rule nisi will be
of its discretion, shall refuse to discharged. Where there is no return
interfere by a writ under Article 226. The writ of habeas corpus provides a to the rule nisi, the prisoner is entitled
prompt and effective remedy against to be released forthwith.
Q. 41. Discuss the scope and nature illegal restraints. Thus, the object of
of writ of Habeas Corpus. the writ of habeas corpus is to release
When may be refused - Since the the liberty of a citizen on the other (ii) Such authority must be an authority
object of the writ of habeas corpus is hand. to determine questions affecting rights
remedial and not punitive, the legality of subjects;
or otherwise of the detention must be (9) In habeas corpus proceedings, it is
decided by the court with reference to the duty of the State to place before (iii) It must have duty to act judicially;
the date of return of the rule nisi and the court all the material facts and and
not with reference to the date of relevant record truly faithfully and with
making such application. Thus, the writ utmost fairness. (iv) It must have acted in excess of its
would not be issued if at the time of authority.
the rule nisi, the prisoner was not Q. 42. Define the writ of Certiorari.
Discuss its scope and nature. A writ of certiorari may be issued on
illegally detained, even though at the
the following grounds :
time of detention the order was illegal.
Ans. "Certiorari" is a Latin word
meaning `to inform'. It was essentially (i) Error of Jurisdiction - When an
The following principles regarding a
a royal demand for information. The inferior court or tribunal acts without
writ of habeas corpus emerge:
king wishing to be certified of some jurisdiction, in excess of its jurisdiction
(1) A writ of habeas corpus is a `Certiorari' may be defined as a judicial or fails to exercise jurisdiction vested
remedial writ, which can be issued in order operating in personam and made in it by law, a writ of certiorari may be
all cases of wrongful deprivation of in the original legal proceedings, issued against it.
individual freedom and personal directed to any constitutional, statutory
or non-statutory body or person, (ii) Jurisdictional Fact - Lack of
liberty.
requiring the records of any action to jurisdiction may also arise from
(2) It, however, cannot be employed to be certified by the court and dealt with absence of some preliminary facts,
impeach or otherwise challenge the according to law. which must exist before a tribunal
correctness or propriety of a decision exercise its jurisdiction. They are
rendered by a court of competent (i) It is a remedy operating in known as `jurisdictional' or `collateral'
jurisdiction. personam, therefore writ can be issued facts. The existence of these facts is a
even where the authority has become sine qua non or a condition precedent
(3) An order of release by habeas functus officio, to the keeper of the to the assumption of jurisdiction by an
corpus does not per se amount to records. inferior court or tribunal. To put it
discharge or acquittal of the prisoner simply, the fact or facts upon which an
or detainee. (ii) Writ can be issued against administrative agency's power to act
constitutional bodies (legislature, depends can be called a `jurisdictional
(4) Since a writ of habeas corpus is not executive and judiciary or their fact'. If an inferior court or a tribunal
punitive in nature, it cannot be utilized officers), statutory bodies like wrongly assumes the existence of
as an instrument of punishment of one corporations, non-statutory bodies like such a fact, a writ of certiorari can be
who has wrongfully arrested or companies and cooperative societies issued.
detained another. and private bodies and persons.
In "Surya Dev Rai v. Ram Chander
(5) A prisoner or detainee himself or (iii) Certiorari can be issued to quash Rai" AIR 2003 SC 3044 it was
his relative or his friend or any other judicial, quasi-judicial as well as observed that Certiorari jurisdiction
person interested in the prisoner or administrative actions. The writ is though available is not to be exercised
detainee can move the court for a writ corrective in nature, thus its scope of as a matter of course. The High Court
of habeas corpus. operation is quite large. would be justified in refusing the writ of
certiorari if no failure of justice has
(6) Mere delay in applying for a writ of (iv) The purpose of certiorari is not been occasioned. In exercising the
habeas corpus will not bar the prisoner only negative (to quash an action) but certiorari jurisdiction the procedure
of detainee from challenging arrest or it contains affirmative or positive action ordinarily followed by the High Court is
detention. also. In Gujarat Steel Tubes v. to command the inferior Court or
Mazdoor Sabha (AIR 1980 SC 1896), Tribunal to certify its record or
(7) When the detainee contends that the Supreme Courtt held that while proceedings to the High Court for its
he is wrongfully detained, the burden quashing the dismissal order, the court inspection so as to enable the High
is on the authority to justify the can also order reinstatement and the Court to determine whether on the
detention. payment of back wages. face of the record the inferior Court
has committed any of the preceding
(8) The approach of the court in A writ of certiorari can be issued if the errors occasioning failure of justice.
habeas corpus proceedings has to be following conditions are fulfilled : Certiorari, under Article 226 of the
one of eternal vigilance. The court
Constitution, is issued for correcting
must strike a balance between the (i) The judicial or quasi-judicial body
gross errors of jurisdiction, i.e., when a
need to protect the society on the one must have legal authority;
subordinate Court is found to have
hand and the necessity to safeguard
acted -
(i) without jurisdiction - by assuming the fact that the aggrieved party has (AIR 1983 SC 848) the Supreme Court
jurisdiction where there exists none, or another adequate remedy may be issued writ of mandamus for the
taken into consideration and it may not specific performance of a contract to
(ii) in excess of its jurisdiction - by be issued on that ground. But as advance money. In this case the
overstepping or crossing the limits of discussed above, it is a rule of policy, Gujarat Financial Corporation, a
jurisdiction, or convenience and discretion and not of government instrumentality, had
jurisdiction and in spite of alternative sanctioned a loan of Rs. 30 lakhs to
(iii) acting in flagrant disregard of law remedy being available it may be Lotus Hotel for the construction but
or the rules of procedure or acting in issued where the order is on the face later on refused to pay the amount.
violation of principles of natural justice of it erroneous or the inferior court or
where there is no procedure specified, tribunal has acted without jurisdiction Mandamus would not lie where the
and thereby occasioning failure of or in excess of its jurisdiction or duty is ministerial in nature i.e. where
justice. contrary to the principles of natural the authority has to act on the
justice or there is infringement of a instructions of his superior. In the
In Shauqin Singh v. Desa Singh AIR same manner mandamus cannot be
fundamental right of the petitioner.
1970 SC 672, the relevant statute issued to enforce administrative
empowered the Chief Settlement Q. 43. Define the writ of Mandamus. directions or instructions which do not
Commissioner to cancel an allotment Discuss its nature and scope. have the force of law, hence it is
of land if he was "satisfied" that the discretionary with the authority to
order of allotment was obtained by Ans. Mandamus means a command. It accept it or reject it.
means of `fraud, false representation is an order issued by a court to a
or concealment of any material fact'. public authority asking it to perform a (2) There must be a specific demand
The Supreme Court held that the public duty imposed upon it by the and refusal - there must be a specific
satisfaction of the statutory authority Constitution or by any other law. demand for the fulfillment of duty and
was a jurisdictional fact and the power Mandamus is a judicial remedy which there must be specific refusal by the
can be exercised only on the existence is in the form of an order from a authority. However, express demand
there. superior court (the Supreme Court or a and refusal is not necessary. Demand
High Court) to any Government, court, and refusal can be inferred from the
(iii) Error apparent on face of record. - corporation or public authority to do or circumstances also. In Yogendra
If there is an error of law, which is to forbear from doing some specific act Kumar v. Delhi Admn. (1982) 3 SCC
apparent on the face of the record, a which that body is obliged under law to 506 the writ of mandamus was issued
decision of an inferior court or a do or refrain from doing, as the case to secure the release of a prisoner
tribunal may be quashed by a writ of may be, and which is in the nature of a detained for not valid reasons.
certiorari. public duty and in certain cases of a
statutory duty. (3) There must be a clear right to
(iv) Violation of natural justice - A writ enforce the duty - the applicant must
of certiorari can be issued when there It is considered as a residuary remedy have a legal right to the performance
is violation of the principles of natural of the public law. It is a general of a legal duty. The right sought to be
justice. remedy whenever justice has been enforced must be subsisting on date of
denied to any person. It may be issued petition. The right to enforce the duty
(v) Who may apply - Normally the
not only to compel the authority to do must belong to the petitioner.
party whose rights are affected may
something but also to restrain it from However, this does not mean that a
apply for a writ of certiorari. But if the
doing something. Therefore, it is both person can never enforce a public right
question affects the public at large,
negative and positive and hence can which does not specifically belong to
any person may apply. The distinction,
do the work of all other writs. It can be any individual. Mandamus can be
however, is that where the application
issued on all those counts on which issued on the petition of a taxpayer to
is made by the aggrieved party, the
certiorari and prohibition can be restrain a municipality from
court should grant relief ex debito
issued. misallocation or misappropriation of
justitiae, but if it is made by a party not
public funds.
directly affected in the litigation, grant Conditions for the grant of Mandamus
of writ is entirely in the discretion of the - (1) There must be a public duty - Against whom mandamus would not
court. Mandamus would lie only to enforce a lie - A writ of mandamus will not lie
duty, which is public in nature. It will against the President or the Governor
(vi) Against whom certiorari would lie. -
not issue against a private individual to of a State for the exercise and
A writ of certiorari is a judicial writ. It
enforce a private right such as a performance of powers and duties of
lies against subordinate courts, inferior
contract. Even though mandamus his office or for any act done or
tribunals, quasi-judicial bodies and
does not lie to enforce a contract inter purporting to be done by him in the
adjudicating authorities.
partes, it will lie where the petitioner's exercise and performance of those
(vii) Alternative remedy - A writ of contractual right with a third party is powers and duties (Article 361). It will
certiorari is a discretionary remedy and interfered with by the State. In Gujarat not lie against the State legislature to
State Financial Corpn. v. Lotus Hotel prevent them from considering
enacting a law alleged to be violative nor any other legal right cannot ask for appeal from any judgment, decree,
of constitutional provisions. Narinder quo- warranto. The High Court held determination, sentence of order in
Chand v. Lt. Governor, H.P., (1971)2 that there was no reason to refuse a any cause or matter passed or made
SCC 585 : AIR 1969 SC 1306. citizen under a democratic republican by any court or tribunal in the territory
Alternative remedy - A writ of Constitution to move for a writ of quo- of India.
mandamus will not be refused on the warranto for testing the validity of high
ground of alternative remedy being appointment under the Constitution. (2) Nothing in clause (1) shall apply to
available if the petitioner approaches On merit, however, it was held that any judgment, determination, sentence
the court with an allegation that his there was no defect in the appointment or order passed or made by any court
fundamental right has been infringed. questioned in the writ. or tribunal constituted by or under any
It is the duty of the High Court to law relating to the Armed Forces." (ii)
safeguard the fundamental rights of The writ of quo-warranto can go only Object - The rapid growth of
the petitioner and the writ of to public offices and not to private administrative law has brought into
mandamus will be issued. But if the bodies like the Managing Committee of existence many administrative
complaint is not about the infringement a school, as has been held in tribunals and adjudicating bodies.
of any fundamental right, the Amrendra v. Narendra, AIR 1953 Cal. They are invested with wide judicial
availability of an alternative remedy 114. and quasi-judicial powers thereby
may be a relevant consideration. necessitating effective control. With
Q. 45. What Constitutional remedies this object in mind, the framers of the
Q. 44. Discuss the nature and scope are available to a person aggrieved Constitution have conferred very wide
of writ of quo warranto. of action of Administrative and extensive powers on the Supreme
Authority ? Court.
Ans. Quo-Warranto : - By issuing the
writ of quo-warranto the court seeks Ans. Under the Constitution of India, (iii) - The article commences with the
from the person to whom it is issued the following remedies are available to words "Notwithstanding anything in
information as to the warrant or a person aggrieved by an action of this Chapter". These words indicate
authority by which the said person administrative authority : that the intention of the Founding
supports his right to an office, Fathers of the Constitution was to
franchise or liberty. It lies against a (a) Extraordinary Remedies - As disregard in extraordinary cases the
person who claims or usurps an office, already discussed, an aggrieved party limitations contained in the previous
franchise or liberty with respect to has a right to approach the Supreme articles on the power of the Supreme
which information is sought so that Court under Article 32 or a High Court Court to entertain appeals. The
such person's right to the same may under Article 226 of the Constitution of Supreme Court can grant special leave
be determined in the light of the India for an appropriate writ, direction and hear appeals even though no
authority or warranto cited by such or order. They are extraordinary or statute makes provision for such an
person in support thereof. The writ of prerogative remedies. appeal.
quo-warranto cannot be issued unless
(b) Appeals to Supreme Court - However, Article 136 does not confer a
the defendant is in actual possession
Articles 132 to 135 of the Constitution right on any party but confers a
of the office and exercises the office -
deal with appeal powers of the discretionary power on the Supreme
R.V. Green, 2 QB 460. The holding of
Supreme Court in constitutional Court. In other words, a party cannot
a liberty as a matter of fact is a
matters and in civil and criminal cases. approach the Supreme Court under
condition precedent to the
Article 139A enables the Supreme Article 136 as of right. The grant of
determination of a right to the same
Court to withdraw or transfer cases special leave to appeal is, thus,
and the calling up of information with
from one court to another court. entirely a matter of discretion of the
regard to it. A motion for a writ of quo
warranto can be made at the instance Supreme Court.
(c) Special Leave Petitions (i)
of a private person although he is not Constitutional provisions - Article 136
personally aggrieved or interested in (iv) The language of Article 136 is very
of the Constitution of India confers wide and comprehensive.
the matter. The motion does not extraordinary powers on the Supreme
require the intervention of the Court to grant special leave to appeal (v) When Supreme Court may refuse
Government or any public authority. from any judgement, decree, leave -
This type of writ is a discretionary determination, sentence or order
remedy and is not issued as a matter. passed by any court or tribunal. Though this power is comprehensive
and undefined, the court has imposed
In G. D. Karkare v. T. L. Shevde, AIR 136. Special leave to appeal by the certain limitations upon its own
1952 Nag. 330, the appointment of the Supreme Court - powers. This power is extraordinary
Advocate General of Madhya Pradesh
and it should be exercised only in
was questioned by Quo-Warranto. An (1) Notwithstanding anything in this exceptional circumstances. Thus, the
objection was taken that mere a Chapter, the Supreme Court may, in Supreme Court would not ordinarily
private individual seeking neither its discretion, grant special leave to grant a leave against the order of a
enforcement of his fundamental right
tribunal where the alternative remedy jurisdiction, with the object of securing order and judgment of a District Judge,
is available, or finding of act is that all such institutions exercise their the remedy available to the aggrieved
challenged, or the matter falls within powers and discharge their duties person is to file a revision before the
the discretion of the authority, or where properly and in accordance with law. High Court under Section 115 of the
a new point is raised for the first time The power of superintendence over C.P.C. Where remedy for filing a
before the Supreme Court, or where inferior courts and tribunals conferred revision before the High Court under
the petitioner is unable to show the on High Court is judicial as well as Section 115 of CPC has been
presence of special circumstances to administrative. The power conferred by expressly barred by a State
grant special leave. this provision on every High Court is Government, only in such case a
unlimited and unfettered. petition under Article 227 of the
When Supreme Court may grant leave Constitution would lie and not under
- On the other hand, in the following In "Sadhana Lodh v. National Article 226 of the Constitution. As a
circumstances the Supreme Court Insurance Co. Ltd." AIR 2003 SC 1561 matter of an illustration, where a trial
would entertain the appeal under it was observed that the supervisory Court in a civil suit refused to grant
Article 136 : Where the tribunal has jurisdiction conferred on the High temporary injunction and an appeal
acted in excess of jurisdiction or has Courts under Article 227 of the against refusal to grant injunction has
failed to exercise jurisdiction vested in Constitution is confined only to see been rejected, and a State enactment
it; or where there is error apparent on whether an inferior Court or Tribunal has barred the remedy of filing revision
the face of the record; or where the has proceeded within its parameters under Section 115, CPC, in such a
order is against the principles of and not to correct an error apparent on situation a writ petition under Article
natural justice; or where irrelevant the face of the record, much less an 227 would lie and not under Article 226
considerations have been ignored; or error of law. In exercising the of the Constitution. Thus where the
where the findings of the tribunals are supervisory power under Article 227 of State legislature has barred a remedy
perverse; or where there is the Constitution, the High Court does of filing a revision petition before the
miscarriage of justice. not act as an Appellate Court or the High Court under Section 115, C.P.C.,
Tribunal. It is also not permissible to a no petition under Article 226 of the
Q. 46. Discuss about Supervisory High Court on a petition filed under Constitution would lie for the reason
Jurisdiction of High Court under the Article 227 of the Constitution to that a mere wrong decision without
Constitution of India. review or re-weigh the evidence upon anything more is not enough to attract
which the inferior Court or Tribunal jurisdiction of High Court under Article
Ans. Article 227 of the Constitution purports to have passed the order or to 226 of the Constitution.
confers on every High Court the power correct errors of law in the decision.
of superintendence over all the The supervisory jurisdiction conferred
subordinate courts and inferior tribunal In "State of Maharashtra v. Milind" AIR on the High Courts under Article 227 of
in the State. 2001 SC 393 it was observed that the the Constitution is confined only to see
power of the High Court under Article whether an inferior Court or Tribunal
Object - The underlying object of this 227 of the Constitution of India, while has proceeded within its parameters
provision to make the High Court the exercising the power of judicial review and not to correct an error apparent on
custodian of all justice within the against an order of inferior tribunal the face of the record, much less of an
territorial limits of its jurisdiction and to being supervisory and not appellate, error of law. In exercising the
arm it with a weapon that could be the High Court would be justified in supervisory power under Article 227 of
wielded for the purpose of seeing that interfering with the conclusion of the the Constitution, the High Court does
justice is meted out fairly and properly tribunal, only when it records a finding not act as an Appellate Court or the
by the authorities mentioned therein. that the inferior tribunal's conclusion is Tribunal. It is also not permissible to a
This jurisdiction extends to keeping the based upon exclusion of some High Court on a petition filed under
subordinate courts and inferior admissible evidence or consideration Article 227 of the Constitution to
tribunals within the limits of their of same inadmissible evidence or the review or re-weigh the evidence upon
authority and to seeing that they obey inferior tribunal has no jurisdiction at all which the inferior Court or Tribunal
the law and they do what their duty or that the finding is such, which no purports to have passed the order or to
requires and they do it in a legal reasonable man could arrive at, on the correct errors of law in the decision.
manner. This jurisdiction cannot be materials on record.
limited or fettered by any Act, except Q. 47. What do you understand by
by a constitutional amendment. In "Sadhana Lodh v. National Ombudsman ? What are the
Insurance Co. Ltd." AIR 2003 SC 1561 function and power of ombudsman
Nature and scope - In Waryam Singh it was observed that where a statutory ?
v. Amarnath, AIR 1954 SC 215, it was right to file an appeal has been
observed that Article 227 of the provided for, it is not open to High Ans. "Ombudsman" means `a
Constitution confers on every High Court to entertain a petition under delegate, agent, officer or
Court, a special power and Article 227 of the Constitution. Even if commissioner'. A precise definition of
responsibility over all subordinate where a remedy by way of an appeal `Ombudsman' is not possible, but
courts and tribunals within its territorial has not been provided for against the Garner rightly describes him as "an
officer of Parliament, having as his duty of the Ombudsman to satisfy Bihar (1973), Uttar Pradesh (1975),
primary function, the duty of acting as himself whether or not the complaint Under U.P. Lokayukta and Up
an agent for Parliament, for the was justified. He can even act suo Lokayukta Act, 1975, the Lokayukta
purpose of safeguarding citizens motu. He can grant relief to the should be appointed by the Governor
against abuse or misuse of aggrieved person, as unlike the with the consultation of the Chief
administrative power by the executive" powers of a civil court, his powers are Justice of the High Court and Leader
not limited. of the opposition in the Legislative
The literal meaning of "Ombudsman" is Assembly. Up Lokayukta shall be
"a delegate or agent." In the words of The authority of Ombudsman extends appointed with the consultation of
Prof. S. K. Agrawala the term to the police, the armed forces, and Lokayukta. The Lokayukta shall be a
"Ombudsman" refers to institution, the personal houses, the hospital and person who is or has been a Judge of
which have three basic and unique mental health authorities and to the the Supreme Court or a High Court.
characteristics :- whole of the civil service. He should neither be a member of any
legislature nor connected with any
(i) The Ombudsman is an independent The only institutions exempted from political party or any profession. He
and non-partisan officer of the his cognizance are :- shall hold office for five years. The
legislature who supervises the Lokayukta or Up Lokayukta may
administration; (1) Parliament,
investigate any action taken by (a) a
(2) Law courts, and minister or a secretary, or (b) any
(ii) He deals with specific complaints
public servant including a public
from the public against administrative
(3) Autonomous Local Councils. servant notified for this purpose by the
injustice and mal-administration (or
State Government. He will investigate
may proceed on his own information in
Anyone may complain to him. Letters the matter on complaint, which must
similar circumstances);
from convicted persons are be accompanied by an affidavit, and
(iii) He has the power to investigate, uncensored. Furthermore, he need not complaint should not have any other
criticize and report back to the wait for complaints; he can take action remedy. The State Government may
legislative, but not to reverse sou motu. He can examine any exclude any complaint involving a
administrative action. activity, civil or military, look into even grievance or an allegation against a
secret files, and summon anyone to public servant, from the jurisdiction of
Usually, the Ombudsman is a lawyer, appear before him and grant legal aid the Lokayukta or Up Lokayukta. On
Professor or Judge with no political or to sue any branch of the Government. complaint if the Lokayukta or Up
financial axe to grind. He is paid very When he considers that a Minister has Lokayukta is satisfied on investigation
well and is elected for four years term. to be made answerable at law for his that injustice or undue hardship has
He makes a detailed annual report to conduct or official acts, he can been done, he shall recommend to the
the Parliament and he sats out the recommend Parliament to call him to public servant and the competent
reactions of the people against the account. authority concerned that such injustice
Government, their complaints against shall be remedied or redressed. If he is
it together with his recommendations Q. 48. What is the position of not satisfied with the action he may
for eliminating the causes for the Ombudsman in India ? make special report to the Governor.
complaints.
Ans. Ombudsman in India :- Inspired The Lokayukta and Up Lokayukta shall
Historical growth - This institution by the view that there is no adequate present annually a consolidated report
originated in Sweden in 1809 and procedure or mechanism to redress on the performance of their functions
thereafter it has been accepted in individual's grievances against under the Act to the Governor.
other countries including Denmark, administrative evils, the office of
Finland, New Zealand, England and Lokpal similar to that of the The Lokpal Bill of 1977 - This bill refers
India (Lokpal and Lokayukta) Ombudsman has been recommended only to the Central Administration. It
by the Administrative Reform provides for the appointment of one
Powers and duties - The Ombudsman Commission, in its Interim Report. A Lokpal by the President of India after
inquires and investigates into draft bill has also been appended to consultation with the Chief Justice of
complaints made by citizens against the Interim Report of the Commission. India and the Speaker of Lok Sabha
abuse of discretionary power, mal- Broadly on the basis of that bill and the Chairman of Rajya Sabha. His
administration or administrative attempts have been made by the term of office will be five years and he
inefficiency and takes appropriate Government to put new drafts of the cannot be given second term or any
actions. For that purpose, very wide Lokpal Bill 1969 and 1971, but it could employment under the Government.
powers are conferred on him. He has not be enacted as it lapsed. Before fixed tenure, he can be
access to departmental files. The removed from his office in the same
complainant is not required to lead any Lokayukta in States - Several States in manner as there is provision for the
evidence before the Ombudsman to India enacted the Lokayukta statutes. removal of Judge under Judges
prove his case. It is the function and These States are Orissa (1970), (Inquiry) Act, 1968.
Maharashtra (1971), Rajasthan (1973),
The Bill does not positively lay down Q. 49. What do you understand by (1) A Corporation is established by or
any qualification for the appointment of "Public Corporation" ? Discuss under a statute. It possesses an
the office of Lokpal. But it lays down their importance in Modern Times. independent corporate personality and
negative qualifications, e.g. - He shall Enumerate some of the important it is an entity different from the Union
not be a member of Parliament or of Public Corporations in India and or the State Government.
State Legislature, should not hold any discuss their working.
office of profit or trust, should not be (2) There may be several members or
related to any political party etc. Ans. As discussed earlier, policy of shareholders of a corporation. The
"Laissez fair" was given away. State is law, however, knows only one body
The salary, pensions and other no longer confined to work of law and corporate. Juristic personality of
perquisites of the Lokpal are equal to order only but has also become corporation is distinct from its
that of the Chief Justice of India. He "Welfare State" ensuring social individual members.
may investigate into any administrative security and welfare. Keeping in view
action taken by or with the approval of this object Government entered into (3) A Corporation exercises its rights,
a Minister or Secretary of the Union or field of trade and commerce giving rise performs its functions and discharges
a State Government on receipt of a to public corporations. its duties and obligations entrusted to it
written complaint. In respect of by its constituent statute. Its powers do
grievance the Indian Ombudsman, The Public Corporation in the words of not extend beyond what the statute
Lokpal will broadly cover Prof. Wade, is a "hybrid organism, provides expressly or by necessary
administrative action which is showing some of the features of implication.
unreasonable, unjust, oppressive or government department and some of
improperly discriminatory contrary to the features of a business company, (4) Every action of a corporation not
law, based on mistake of law or fact. and standing outside the ordinary expressly or impliedly authorised by
framework of Central and Local the statute or charter is ultra vires and
Everybody who is not a public servant Government." The corporations are having no legal effect whatsoever.
shall be entitled to file the complaint semi-Governmental, autonomous
which should be in prescribed form bodies, primarily concerned with (5) A Corporation can possess, hold
and supported by an affidavit. A fee of managerial, commercial and industrial and dispose of property.
Rs. 1,000/- (One Thousand) has to be enterprises and run various public
(6) Subject to the provisions of the
deposited for meeting the expenses of utilities which the State does not
statute by or under which a corporation
the investigation. The Lokpal may choose to run departmentally as its
is created, such corporation is by and
exempt this fee, if satisfied on some normal Government function. It is a
large an autonomous body. Even
adequate grounds. The investigation ready instrument of the public
though the ownership, control and
shall be conducted in camera; unless enterprise and manages the
management of a corporation might be
decided otherwise, for which reasons nationalized undertaking.
vested in the Union or the State.
have to be recorded by the Lokpal. He
has been given powers of a Civil Court With a view to achieving the objectives
(7) The constituent statute or charter
for several matters. The proceedings of socialistic pattern of society, the
may delegate the rule-making power to
before him shall be deemed to be framers of our Constitution in
a corporation.
judicial within the meaning of section unequivocal terms mentioned a
193 of the Indian Penal Code. He will specific provision in the Chapter of (8) A corporation created by or under a
communicate his conclusions and Directive Principles of State policy statute can be said to be an agency or
recommendations in writing to the which provides as follows :
instrumentality of the Government and
competent authority after the `State' within the meaning of Article 12
allegations made out in the complaint "The State shall so direct its policy,
of the Constitution, and therefore, is
are partially or completely proved. The that (a) the ownership and control of
subject to the jurisdiction of the
competent authority has to material resources of the community
Supreme Court under Article 32 and
communicate the proposed action to are distributed to subserve the
the High Courts under Article 226 of
Lokpal within three months. The common good, and (b) the operation of
the Constitution :
Lokpal shall submit a consolidated the economic system shall not result in
report every year with respect to the the concentration of wealth and means (9) Employees of a corporation do not
administration of this Act. of production to the common hold `civil post' under the Union or the
detriment." (Article 39 of the State within the meaning of Part XIV of
The institution of Lokpal is immune Constitution). the Constitution of India.
from judicial control of inferior courts
but not the jurisdiction on the High The above provision naturally gave (10) A corporation cannot be said to be
Court under Article 226 and Article 227 impetus to public sector. It can be said a `citizen' within the meaning of Part II
of the Supreme Court under Article that a corporation created by or under of the Constitution and, therefore, it
136, unless the Constitution itself is a statute possesses the following main cannot claim benefits of those
amended to that extent. characteristics :
Fundamental Rights which have been
conferred only on the citizens.
The public corporation in India can be report of the inquiry will have to be Bihar and West Bengal. The members
classified under three heads - sent to the Central Government. are whole-time, salaried employees of
the Corporation. The Government of
(i) Financial Corporations, like the Very wide discretionary powers have India is empowered to remove and
L.I.C., Reserve Bank of India, Export been conferred on the Reserve Bank. member any member for incapacity or
Credit and Guarantee Corporation It determines the policy relating to abuse of position.
Ltd., Film Finance Corporation Ltd., bank advances, frames proposals for
etc. amalgamation of two or more banks. It The objects of this Corporation are to
may make a representation for the promote and operate irrigation
(ii) Promotional and Development operation of the Banking Companies schemes, water supply, drainage,
Corporations, like Food Corporation of Act to be suspended. The Governor of generation of electricity and electrical
India, Rehabilitation Housing the Bank is empowered to suspend the energy, navigation, etc. in the river
Corporation Ltd., National Research operation of the Act for 30 days in an Damodar. The river is well known for
Development Corporation Ltd., etc. emergency. its notorious propensities. Due to
heavy flooding which causes wide-
(iii) Commercial and Industrial (ii) Oil and Natural Gas Commission spread damage and destruction in the
Corporations such as State Trading (ONGC) - The commission was first States of Bihar and West Bengal, one
Corporation, Hindustan Machine Tools established in the year 1956 as a of the important objects of the
Ltd., Indian Airlines Corporation, etc. Government department. By the Oil Corporation is flood control. It is
and Natural Gas Commission Act, empowered to establish, maintain and
Working of Public Corporations - The 1959, the commission was given a operate laboratories, experimental
Constitution of the corporations and status of a public corporation. The institutions and research stations to
their functions, powers and duties may commission consists of a Chairman achieve the above-mentioned objects.
be understood by a study of the actual and two or more (not exceeding eight) It helps in construction of dams,
working of a few public corporations. members, to be duly appointed by the barrages, reservoirs, power houses,
Central Government. Except a Finance etc. It supplies water and electricity
(i) Reserve Bank of India (RBI) - The
Member, others may be part-time or and can levy rates for it.
Reserve Bank of India was constituted
full-time members. The Central
under the Reserve Bank of India Act,
Government prescribes the rules fixing The Corporation is empowered to
1934. It was nationalized in 1948 by
their terms of office and conditions of acquire, hold and dispose of property.
the Reserve Bank (Transfer to Public
service. It can remove any member It has its own funds deposited in the
Ownership) Act, 1948. It was primarily
even before the expiry of the period, Reserve Bank of India. It can borrow
established to regulate the credit
after issuing a show-cause notice. Its money with the previous approval of
structure, to carry on banking business
functions range from planning, the Government of India. It has a
and to secure monetary stability in the
promotion, organization or separate and independent existence
country. A Board of Directors,
implementation of programs for the and it is an autonomous body
consisting of a Governor, two Deputy
development of petroleum resources independent of the Central or the State
Governors and a number of directors
to production and sale of petroleum Governments. There is no interference
manages it. They are appointed by the
products it produces. It conducts by the Government in the matter of
Central Government for a term of five
geological surveys for the exploration execution of its programs and day-to-
years and are eligible for re-
of petroleum and undertakes drilling day administration. Nevertheless, the
employment.
and prospecting operations. The Corporation is subject to overall control
Under the Banking Companies Act, commission determines its own of the Central Government, Parliament
1949, the Reserve Bank has extensive procedure by framing rules and its and the State legislatures of Bihar and
powers over the banking business in decisions are by majority vote. The West Bengal. It has to send its annual
India. It grants licences without which Government can acquire lands for the reports to the Governments. They are
no company can carry on banking purposes of the commission under the placed on the tables of Parliament and
business. Before granting such provisions of the Land Acquisition Act, the two State legislatures. The
licence, it can inquire into the affairs of 1894. accounts of the Corporation are to be
the company to satisfy itself as regards audited in the manner prescribed by
(iii) Damodar Valley Corporation (DVC) the Auditor General of India.
the company's capacity to pay back to
- The Damodar Valley Corporation was
its depositors. It can cancel a licence
established under the Damodar Valley (iv) Life Insurance Corporation of India
on the ground that the conditions
Corporation Act, 1948. Like other (LIC) - The Life Insurance Corporation
specified therein have not been
corporations, it is a body corporate of India was established under the Life
complied with. Even after granting
having perpetual succession and a Insurance Corporation Act, 1956. It
such a licence it may inquire into the
common seal. The Board of shares certain common characteristics
affairs of any bank, inspect its books of
Management consists of a Chairman with the other corporations. It is a body
accounts and hold an investigation
and two members appointed by the corporate with perpetual succession
either under the direction of the
Government of India in consultation and a common seal. It has power to
Central Government or suo motu. The
with the Governments of the States of acquire, hold and dispose of property.
It can sue and be sued. The Government wholly owns the Central available for the asking and answering
Corporation was established `to carry Government and two Secretaries of questions.
on life insurance business' and given the Government of India hold it and all
the privilege of carrying on this the shares. (4) Half an hour discussion. - Under
business to the exclusion of all other Rule 55 of the rules of procedure of
persons and institutions. The Act The object of the corporation as laid the Lok Sabha, the Speaker can
requires the Corporation to develop down in the Memorandum of provide half an hour for raising
the business to the best advantage of Association is to organize and discussion on a matter of a recent
the community. The Central undertake generally with the State question and answer which needs
Government may give directions in trading countries as also other elucidation on matter of fact.
writing in the matters of policy countries in commodities entrusted to
involving public interest. Such it for such purpose by the Central (5) Statement by Ministers. - Under
directions shall guide the corporation. Government from time to time the Rule 372 of the Lok Sabha Rules,
95% of the profits are to be reserved purchase, sale and transport of such Minister may make a statement on a
for policy holders and the balance is to commodities in India or anywhere else matter of public importance with the
be utilized as the Central Government in the world. Since it is constituted consent of the Speaker. So far,
may decide. under the Companies Act, 1956 all the however, the method has not been
provisions of the Act apply to it. A used extensively in the matter of public
The corporation is an autonomous competent court can wind it up. Its corporations.
body. It is free from ministerial control functions are commercial in nature. It
except as to the broad guidelines of is neither a department nor an organ of (6) Resolution. - Discussion on matters
policy. the government of India. relating to public corporation may
occur through the medium of
(v) Road Transport Corporations Q. 50. Discuss about Parliamentary resolution (Rules 136 and 137 of the
(RTCs) - Various State Governments and Government Control over Rajya Sabha Rules).
have established Road transport Public Corporation.
Corporations for their respective State (7) Motions. - Actually motions provide
under the Road Transport Corporation Ans. Parliamentary Control - One of the general form of discussion of
Act, 1950, e.g. Gujarat State Road the principal reasons that had led to matters related to a public corporation
Transport Corporation. A Road the establishment of public corporation while the other procedures afford
Transport Corporation is managed by instead of departmental undertaking is special opportunities.
a Chief Executive Officer, a General the desire to avoid detailed
parliamentary scrutiny. This does not (8) Parliamentary Committee - In 1957,
Manager and a Chief Accountant
mean that public corporations enjoy Estimates Committee recommended
appointed by the State Government
complete freedom from such control. that public undertakings should
concerned. The Central Government
Parliament's right to keep an eye over prepare a performance and
contributes the capital in part, while the
the working of public corporations is programme statement for the budget
remaining capital is to be borne by the
undisputed in any diplomatic country. year together with the previous year's
State Government concerned in
statement and it should be made
agreed proportions. The Corporations
The following process has been available to Parliament at the time of
can raise capital by issuing non-
adopted for controlling the the annual budget.
transferable shares. The government
guarantees the capital, the shares and corporations :
Government Control - The government
the dividends.
(1) Legislation - The parliamentary exercises control over public
control begins with the very Act of undertaking through various ways. It
The primary function of the
legislation which brings the exercises the power to appoint and
Corporation is to provide efficient,
corporations into existence. Parliament remove the Chairman, directors or
adequate, economical and a properly
in India does take great pains to fulfil members of the Board and the
coordinated system of road transport
this responsibility. managing director. The Government
service in the country. The State
also controls the appointment of senior
Government is empowered to issue
(2) Laying of rules and regulations - By executive officers. The rule regarding
general instructions for the efficient
this process some of the Acts setting the regulation of Constitution of
performance of the functions of the
up public corporations provide that services of employees of these public
Corporation. It manufactures,
rules made under these Acts are to be corporations require the approval of
purchases, maintains and repairs
laid before parliament. the Government. The Comptroller and
rolling stock, appliance, plant and
Auditor General exercises varying
equipment. It can acquire, hold and (3) Questions - Under Rule 32 of the degree of control in the matter of audit
dispose of property.
Rules of Procedure of the Lok Sabha of accounts of the corporations.
unless Speaker otherwise directs, the
(vi) State Trading Corporation (STC) -
first hour of every sitting shall be (A) Appointment and removal of
State Trading Corporation of India is a
members - Generally, the power of
Government company. The
appointment and removal of the Act and the Rules made thereunder'
Chairman and the members of a public for enabling it to discharge its functions
corporation is vested in the under the Act. Thus, even in case of
Government. This is the key provision framing rules and regulations, the
and the most effective means of Government is having the upper hand.
control over a public corporation. In Regulations promulgated without
some statutes, a provision is made for previous approval of the Government
removal of a member on the ground cannot be said to be valid.
that the member is absent from
meetings for a specified period, he is
adjudged a bankrupt or is `otherwise
unsuitable' to continue as a member.

(B) Finance - The Government

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

(C) Directives - An important technique

involved to reconcile governmental
control with the autonomy of the
undertaking is to authorize the
Government to issue directives to
public undertakings on matters of
`policy' without interfering with the
matters of day-to-day administration. A
statute may empower the government
to issue such directives, as it may think
necessary on questions of policy
affecting the manner in which a
corporation may perform its function.

(D) Rules and Regulations - Usually a

constituent statute creating a
corporation contains provisions to
make rules and regulations. The
provision empowers the Central
Government to make rules `to give
effect to the provisions of the Act.' The
other provisions authorize the
corporation `with the prior approval of
the Central government' to make
regulations `not inconsistent with the