Articles

Delegated Legislation and Administrative Law

The modern state performs a vast variety of functions, necessitating a large body of laws and rules
to govern these spheres. It is not practical for the legislature to enact all such rules itself. Delegated
legislation refers to the laws made by bodies like the executive, judiciary, or statutory entities under
the powers delegated to them by the legislature. The concept occupies an important position in
administrative law.

Definition of Delegated Legislation

Delegated legislation can be defined as “that form of legislation where the legislature, instead of
making the law itself, delegates its law-making powers to some other authority”. The laws directly
made by Parliament or state legislatures are termed as Supreme or Superior legislation, while laws
made through delegation are called Subordinate legislation. The subordinate law-making bodies
function as delegates of the legislature.

Also Read: Notes on Administrative Law

Need for Delegated Legislation

There are several factors that make delegation of legislative power in modern times a practical
necessity:

1.​ Increasing Legislative Burden: With the adoption of the welfare state model and
expansion of governmental functions, the range of laws needed has amplified manifold.
The Parliament does not have the time or resources to enact the mountain of regulations
needed today. Delegation enables sharing of the legislative load.
 2.​ Need for Expert Knowledge: The executive has various departments like commerce,
finance, defense etc. manned by specialized personnel. They possess expert knowledge
regarding the technical aspects that need to be regulated under law. The legislature lacks
such expertise.
3.​ Flexibility and Expedition: Circumstances change frequently. The executive can amend
and issue fresh rules more quickly through delegated authority to suit the changing needs
without awaiting Parliament nod each time.
4.​ Emergency Situations: Rapid action may be required at times to deal with unforeseen
contingencies and crises. Ordinances are a common method used to empower
authorities to promulgate urgent laws.
5.​ Secrecy Needs: Certain regulations concerning defense equipment, installations, war
strategy etc. need confidentiality which the executive is better placed to maintain.
Broadcasting details can hamper security interests.
6.​ Convenience in Administration: As the executive has to implement the laws, involving
it in rule making on aspects incidental to the legislation policy facilitates administration.

Constitutional Validity of Delegated Legislation

Earlier judicial decisions had invalidated delegation of legislative power on two main grounds:

1.​ Violation of Separation of Powers: Making laws is the exclusive domain of the
legislature. Allowing the executive to frame laws results in encroaching on legislature’s
functioning thereby breaching separation of powers between institutions.
2.​ Delegatus Non Potest Delegare: The legislature being a delegate itself (of the people’s
sovereignty) cannot further delegate, as per this principle.

However, on account of the multifarious advantages offered by delegated legislation, the courts
changed their stance. In India, a Constitution Bench of the Supreme Court in Re: Delhi Laws Act
case upheld constitutional validity of delegation subject to three safeguards:

1.​ Essential Legislative Functions cannot be delegated – Functions like determining the
legislative policy and formally enacting that policy into laws constitutes the ‘essence’ of
legislative power, and rests solely with the legislature.
 2.​ Adequate Guidelines Must be Provided – The parent statute itself must chalk out
proper guidance to steer the delegatee on exercising the delegated authority.
3.​ Limits should be placed – Wherever feasible, the boundaries within which delegated
powers can be used should be set out, for instance fixing upper limits for penalties to be
imposed by rules.

Thus, barring core aspects of lawmaking like framing policies and setting standards, delegation of
ancillary legislative powers is now constitutionally permissible in India.

Types of Delegated Legislation

There exist several modes adopted by the legislature for delegating law-making functions which can
be categorized under:

1.​ Skeleton Legislation: Here the legislature simply outlines the bare bones structure of
the law in the Act, while leaving the rule-making body to flesh out details through
subordinate legislation.

Example: Sec. 3 of Essential Supplies Act defined purposes for which rules can be framed but did
not provide exhaustive elaboration, which was delegated. In Harishankar Bagla v. State of MP,
creation of such skeletal legislation with adequate safeguards was upheld.

●​ Power of Inclusion/Exclusion: The parent law contains lists or schedules of entities like
organizations, individuals, goods etc. to which it applies. The subordinate agency is
thereafter empowered to add or remove entries to this list thereby expanding or shrinking
the Act’s ambit.
Example: Where an Act specified industries for which minimum wages were fixed and permitted
government to update the schedule by adding more industries, it was upheld in Edwad Mills v.
Ajmer.

●​ Power to Modify Statute: Enabling the executive to extend statutes to different areas or
allow incorporation of specific provisions from one law into another is a form of delegating
amendatory authority. Judicial interpretation is required to ensure modifications do not
amount to unauthorized substantive changes.

Example: Sec. 7(2) of Punjab Reorganization Act that empowered center to repeal/amend laws
concerning divided assets/liabilities was upheld in Bhaiya Lal v. Harikishan Das by reading it
narrowly to allow minor adjustments only.

●​ Taxation Powers: Here substantive power remains with legislature in imposing a tax,
while delegated legislation provides for rate fixation and associated aspects. Such
delegation for ancillary matters has been allowed by courts.

Example: Upholding customs duties imposed on imported coal under the Coal Mines Act through
delegated legislation in Union of India v. Delhi Cloth &General Mills Ltd., the SC held such delegation
was only to implement taxation already sanctioned by the law.

Control Over Delegated Legislation

Delegated authorities cannot be allowed unbridled powers. Adequate mechanism to check possible
misuse is required, hence subordinate legislation is put under varied controls:

A.​ Judicial Control

Using the tool of judicial review courts ensure delegated legislation does not overstep boundaries by
applying the principle of ultra vires to invalidate transgressing rules. Grounds include violation of
constitutional provisions or parent statute itself.

Example: Where rule prohibiting coal business without license was struck down in Dwarak Prasad
v. Bareilly as violating freedom under Article 19(1)(g).

●​ Legislative Control:

Parliamentary scrutiny of delegated law making is maintained through devices like laying rules
before Houses or conditioning commencement of rules upon legislative approval. Further,
Parliament committees also examine delegated legislation.

Example: The Committee on Subordinate Legislation oversees whether rules contradict parent act
or trespass into essential legislative domain.

●​ Procedural Control:

To ensure rule-making powers are carefully exercised various procedural safeguards have been
evolved like requirements of prior publication and consultation with affected interests. Breach of
mandatory procedures can invalidate rules.

In Raza Buland Sugar Co. v. Municipal Board Rampur, the SC held that when a law stated rules
‘shall’ be published in Hindi, using Urdu papers was valid as object of publicizing the law was met.

Other Aspects of Delegated Legislation Certain other facets concerning delegated legislation as
discussed in judicial decisions are:
 1.​ Retrospective Operation- Legislature can enact laws having retrospective effect (except
in criminal law). But subordinate legislation is prospective by nature. In ITC
Bhadrachalam Paper Boards v. MRO, arbitrarily made retrospective rules resulting in
tax liability for past periods were struck down by the SC.
2.​ Excluding Judicial Review- Being quintessential to upholding rule of law and
constitution, power of courts to review laws cannot be barred. In India legislative
provisions barring review have been read down to uphold judicial authority.
3.​ Delay in Framing Rules- Inordinate delay in framing essential rules can severely hamper
implementation of the law itself. Courts have had to intervene and issue directions to fill
such temporary vacuum. In T.K. Rangarajan v. Govt. of Tamil Nadu, the SC pointed out
that GST delay in notifying forms under statutes paralyzes machinery under the law.
4.​ Waiver of Rules- Relaxation in application of rules has to be in conformity with the parent
law itself. Authorities cannot ignore or override statutory requirements through
administrative instructions, notifications etc. as held in DTC v. BPL.

Conclusion

In today’s regulatory state delegated legislation has become indispensable, yet adequate control
mechanisms are essential to prevent misuse and safeguard democratic values. The higher judiciary
in India has had a defining role in evolving interpretative principles to keep this sphere of subordinate
law making within constitutional bounds. With increasing powers being delegated even by
legislatures, continuing vigilance is needed so that the delicate balance between expediency and
propriety remains intact while using delegated legislation.

Principles of Natural Justice and Administrative Law

Natural justice refers to the basic principles of fair procedure that should be followed by administrative
authorities while making decisions that affect rights of individuals. The principles of natural justice ensure
that the process of decision making is fair and reasonable. These principles are deeply rooted in common
law and form an integral part of administrative law in India.

The three main pillars of natural justice are:

 Nemo judex in causa sua: No one should be a judge in his own cause

Audi alteram partem: Hear the other side

Reasoned Decision

These principles are flexible and their application depends on the facts and circumstances of each case.
They apply not only to quasi-judicial functions but also to administrative and executive functions to a
limited extent, especially where such functions affect rights of individuals.

Rule Against Bias

The rule against bias flows from the maxim nemo judex in causa sua which means that no person can be
the judge in his own cause. It requires that the authority deciding a case must not be biased in favor of
one party and against the other. The test is whether there is a reasonable apprehension in the mind of
one party that the decision making authority will be biased.

The Supreme Court has laid down that justice should not only be done, but it must manifestly appear to
be done. The appearance of bias is sufficient to vitiate the decision even if there is no actual bias. If right
minded persons reasonably apprehend bias, then such apprehension is conclusive evidence of likelihood
of bias.

There are several forms of bias:

Personal bias: Where the deciding authority has some personal interest in the outcome of the
proceedings or is related to one of the parties. Presence of personal bias renders the decision void.

Pecuniary bias: Where the deciding authority has some financial or monetary interest in the proceedings.
Even a small pecuniary interest is enough to disqualify the authority if there is a reasonable likelihood that
it will influence the decision.

Bias as to subject matter: Mere support or opposition to some ideology or philosophy by itself does not
indicate bias unless the authority has predetermined the case due to such reasons. Courts usually do not
interfere on grounds of subject matter bias alone unless evidence shows the authority had a closed mind.
Departmental bias: Possibility of bias in favor of a government department over private citizens. But mere
fact that decision making authority belongs to same department is not enough. There must be real
likelihood of bias.

Pre-conceived notion bias: Mere holding of an opinion or belief on some issue does not disqualify an
authority from deciding a case. One cannot expect authorities to have blank minds. There must be real
likelihood that the pre-conceived notions will adversely affect fair hearing.

Right to Fair Hearing

Audi alteram partem is the second principle of natural justice which means that no one should be
condemned unheard. Both sides must be heard before passing an order affecting rights of parties. The
components of fair hearing are:

Right to notice: Adequate and proper notice must be given to the affected party before initiating action.
The notice must clearly set out the charges and mention the action proposed to be taken. Ambiguous
notice leads to denial of reasonable opportunity.

Right to legal representation: Presence of lawyers is generally not integral to administrative hearings. But
right to legal representation may be necessary in certain situations depending on facts of each case e.g.
where one has to face criminal charges or the matter involves complex questions of law.

Right to present case: A reasonable opportunity must be afforded enabling the affected party to effectively
present its case including written submissions and oral arguments. What constitutes reasonable
opportunity depends on facts of each case.

Right to rebut evidence: Any material or evidence brought on record by opposite party must be disclosed
and reasonable opportunity given to rebut such evidence. This includes right to cross examine witnesses.
Reliance on evidence collected behind the back of a party is breach of natural justice.

Right to Reasoned Decision

In addition to the twin pillars of natural justice i.e. nemo judex in causa sua and audi alteram partem,
administrative law jurisprudence has evolved a third principle requiring reasoned decisions from
authorities exercising quasi-judicial functions.
 The basis for such a right can be found in Article 14 and 21 of the Constitution which mandate fairness,
non-arbitrariness and justness in State actions. An unreasoned order is an arbitrary order as one does not
know the rationale behind such order or what material was considered while arriving at the decision.

The Supreme Court has read an implied duty to give reasoned decisions while exercising statutory power
which (a) affects fundamental rights of citizens; (b) imposes penal consequences; or (c) determines rights
and liabilities of parties. Reasons provide the link between the decision and the mind of the decision
maker.

The right to reasoned order has the following implications:

Where statute requires, the authority must record reasons in support of its decision. This requirement
cannot be dispensed with.

Even where the statute does not require reasons, reasons may still have to be given in line with principles
of natural justice under Article 14 and 21 especially in cases involving civil liberties and penalties.
However, reasons need not be elaborate.

If one statutory authority records detailed reasons and the decision is affirmed by the appellate authority,
the appellate authority need not give detailed reasons again. Concurrence with reasons given by lower
authority is sufficient.

The concept of reasoned orders is an evolving jurisprudence. In exceptional situations it may be relaxed if
adherence will obstruct or delay actions in public interest. The touchstone is balancing administrative
efficiency with basic fairness.

Thus, there exists a general rule requiring administrative authorities to pass reasoned orders so that
citizens can understand the rationale behind the orders affecting their rights and liberties. However,
exceptions can be made based on legitimate goals where giving detailed reasons is not feasible or will
impede public administration.

Exceptions to Natural Justice

The principles of natural justice are not absolute. Courts have carved out exceptions where adherence to
such principles is not required depending on justifiability and necessity

Emergencies: Requirement of hearing may be excluded when prompt action is required to cope with
emergent situations. But such exclusion must be proportional to the need i.e. only to the extent absolutely
necessary.

Confidential matters: Principles of natural justice have no application in matters of confidential and
classified information related to national security, defence etc. Disclosure may be against public interest.

Impracticability: Where it is impractical or impossible to give hearing the rule may be excluded e.g. riots,
natural disasters requiring immediate action.

Statutory exclusion: Principles of natural justice apply unless expressly or impliedly excluded by a statute.
Such exclusion must be strictly interpreted.

Where hearing is meaningless: If the affected party has nothing useful to say or hearing would be an
empty formality, the right to hearing may be denied.

Effect of Violation of Natural Justice

Failure to comply with principles of natural justice renders the decision or order void and not voidable.
Such decisions are nullities and non-est in the eye of law. They have no existence in law and thus no
legal consequences.

Even when natural justice is excluded by statute, violation of basic principles of fair hearing may still
invalidate decisions under Article 14 or 21 especially when such violation leads to arbitrariness or
unreasonableness. Principles of natural justice have constitutional foundations and form part of basic
structure of the Constitution. They cannot be arbitrarily violated without legitimate public purpose even by
a statute.

Conclusion
 Principles of natural justice underpin fair decision making in administration. They inject an element of
rationality and protect against arbitrary exercise of power. Courts have expanded the horizons of natural
justice to uphold rule of law and reasonableness in State actions underlining its dynamic nature. However,
at the same time, exclusion of such principles is justified in certain exceptional situations. The question in
each case is one of proportion. The extent of exclusion must have a reasonable nexus with the objective
sought to be achieved.

Quasi Judicial Functions and Administrative Law

Introduction
Administrative authorities are often empowered to make decisions that affect the rights and
liabilities of individuals. Though not acting in a purely judicial capacity, such authorities take on a
quasi-judicial role when discharging these functions. Understanding the nature of quasi-judicial
functions, how they differ from administrative and judicial functions, and the associated
procedural requirements is key in administrative law. This blog analyses the characteristics,
advantages and issues related to quasi-judicial functions of administrative bodies along with
relevant case laws and statutory provisions.

Characteristics of Quasi-Judicial Functions

The following attributes help identify and distinguish a quasi-judicial function:

Lis Inter Partes

A lis or dispute between two or more contesting parties is usually involved, similar to a judicial
proceeding. For example, a rent tribunal determining ‘fair rent’ between a landlord and tenant.

Provision for Administrative Appeal

Decisions of quasi-judicial bodies are often appellable to administrative appellate authorities.
However, a statutory appeal provision alone may not conclusively establish the quasi-judicial
nature if the appeal is intended to be administrative in nature (State of Gujarat v Shantilal
Mangaldas, AIR 1969 SC 634).

Powers akin to a Civil Court

If the body is vested with certain powers similar to those of a civil court, it indicates its
quasi-judicial role. Eg. Summoning witnesses, administering oath, examining parties, etc.

Consequences on Civil Rights and Liabilities

If the decision substantially impacts or determines civil rights and liabilities, as opposed to
purely administrative outcomes, the function assumes a quasi-judicial character.

Duty to Act Judicially

This is widely accepted as the most reliable test for recognizing a quasi-judicial function. It
requires the body to objectively examine the facts and evidence while hearing parties to the lis
before arriving at a reasoned decision within the letter of the law.
Administrative v Quasi and Judicial Functions
Purely administrative functions are distinguishable from judicial and quasi-judicial ones based
on the below key aspects:

Object and Purpose

Administrative actions aim to effectively and efficiently discharge governmental responsibilities,
maintenance of law and order, etc. whereas judicial adjudications seek to uphold rights and
dispense justice through interpretation and application of the law. Quasi-judicial decisions
exhibit an overlap between the two purposes.

Impact on Rights and Liabilities

Judicial and quasi-judicial decisions directly impact and alter rights and liabilities in personam as
opposed to consequences of administrative actions which tend to be in rem.

Manner of Disposal
Judicial disposals follow substantive and procedural laws strictly. Pure administrative
adjudications are guided by departmental policies and devoid of elaborate procedures.
Quasi-judicial disposals fall in between by and large adhering to principles of natural justice
though not bound by strict codes of procedure and evidence.

Discretionary Power
Administrative adjudicators enjoy greater flexibility and discretionary latitude over rights,
liabilities and implementation of orders. Judicial authorities have relatively limited discretion
while determining issues based on established facts and settled questions of law. Quasi-judicial
authorities have an intermediary position.

Advantages of Quasi-Judicial Decision Making

Quasi-judicial mechanism in administrative adjudication brings several benefits:

Socialization of Law
It makes rule of law concepts more accessible and applicable in spheres of governmental
operation outside regular courts.

Quick and qualitatively satisfactory remedial mechanism

Quasi-judicial redress tends to be more expeditious and contextually nuanced. It obviates the
need to resort to lengthy, expensive and overworked court processes.

Preventive rather than only curative action

It allows for timely and more effective preventive interventions when compared to post-facto
judicial remedies.

Functional approach
Quasi judicial process allows factoring in of policy considerations, contemporary developments
and special circumstances – as long as judicially guided discretion is not breached. Regular
courts may lack this flexibility.

Rich experience
Quasi-judicial bodies focused on specific sectors and regulatory operations tend to gain
unparalleled experience and insights over time.

Issues in Quasi-judicial Functioning

While quasi-judicial structures offer advantages, several concerns challenge their efficacy and
accountability:

Lack of uniform appeal process

One central quasi-judicial appellate body would be ideal. Instead appeals currently lie before a
multitude of authorities in different areas increasing confusion.

Inadequate reasoning and transparency

Quasi-judicial orders often lack detailed reasoning regarding facts and evidence weighing
preventing effective assessment. Reasoned decisions uphold principles of fairness and justice
while facilitating accountability.

Risk of bias
Executives exercising adjudicatory powers in own administration increases the possibility of
institutional bias – violating natural justice expectations of impartiality.

Exclusion of legal representation

Disallowing party representation by legal counsel inhibits fair opportunity to present one’s case
fully.

Plea bargaining tendencies

Permitting withdrawal of complaints or proposals pending decision incentivizes extraneous
pressure and other considerations contaminating objective adjudication.

The above lacunae demand greater ‘judicialization’ – importing court like safeguards without
compromising the advantages of quasi-judicial processes.

Case Laws
Need for quasi-judicial functions
In Mahabir Jute Mills Ltd. v S.L. Saxena (1998) 6 SCC 310, the Supreme Court took 40 years to
decide the matter of wrongful dismissal of workmen highlighting the inability of regular courts to
address such issues expeditiously – thus requiring quasi-judicial industrial tribunals focused on
labour-management disputes.

When enquiry permissible against quasi-judicial authority

Union of India v KK Dhawan AIR 1993 SC 1769 laid down that quasi-judicial authorities must
not be interfered with or subjected to disciplinary enquiries unless recklessness, misconduct or
mala fides in performance of duties is prima facie evident. Principles of independence of
quasi-judicial functioning require reasonable threshold conditions to be met for initiating enquiry
proceedings.

Constitutional validity of statutory administrative tribunals

Court struck down clauses in Administrative Tribunal Act 1985 excluding jurisdiction of
constitutional courts (S.P. Sampath v Union of India AIR 1987 SC 386) while also holding
Tribunal members not to be judges and their decrees not judicial orders (State of T.N. v T.
Valsaraj AIR 1996 SC 3032). This exemplifies stringent review by judiciary regarding legislative
attempts to replace it with statutory quasi-judicial bodies. Need for course correction where
quasi-judicial model compromises principles of constitutional justice.

Conclusion
Quasi-judicial set up attempts to infuse adjudicatory flavour into administrative decision making
while retaining executive discretion appropriate for public administration. However, the ongoing
tug of war between contending considerations with judicial primacy keeps quasi-judicial
mechanisms precariously balanced. Addressing structural, functional and attitudinal limitations
besieging quasi-judiciary remains imperative for a mutually respectful and productive
administrative jurisprudence. Ability to harmoniously blend policy sensitivity with judicially tested
procedural robustness will define the future evolution of quasi-justice in administrative
governance.

State Liability under Administrative Law

The liability of the state is an important concept in administrative law. It deals with the extent to which the
state is legally responsible for the acts and omissions of its agencies and officials.

Constitutional Provisions on State Liability

Articles 298, 299 and 300 of the Indian Constitution deal with state liability in contracts. Article 300
specifically provides that the liability of the Union and state governments will be the same as that of the
pre-constitutional Government of India, as laid down in the Government of India Acts of 1915, 1935 and
1858. This ultimately refers back to the liability of the East India Company, which did not enjoy sovereign
immunity from legal liability.

Contractual Liability
In addition to the constitutional requirements under Articles 298-300, government contracts are also
subject to the provisions of the Indian Contract Act 1872. Hence, the essential elements of a valid
contract under section 10 have to be fulfilled. Provisions relating to consideration, damages, etc. would
also apply.

Article 299 prescribes three mandatory conditions for government contracts:

Expressed as made on behalf of the President/Governor

Executed on behalf of the President/Governor

Executed by a person authorized by the President/Governor

These conditions are mandatory and non-compliance can invalidate the contract, as held in Karamshi v.
State of Bombay. However, the Supreme Court has relaxed the rigour of some of these requirements,
holding that even implied authorization may suffice, as seen in State of Bihar v. Karamchand Thaper &
Brothers. Where the government has derived benefit under an invalid contract, it will still be liable under
the doctrine of unjust enrichment embodied in Section 70 of the Contract Act, as held in New Marine
Lines Construction Company v. Government of India.

Tortious Liability

Prior to the Constitution, there was some uncertainty on whether the state enjoyed sovereign immunity
against tortious liability. Some decisions had indicated that immunity would apply to acts done in exercise
of “sovereign powers”, but others rejected any such immunity.

Article 300 resolved this by equating the state’s liability to that of the East India Company. Hence
sovereign immunity has not survived in India. This was affirmed in State decisions like State of Rajasthan
v. Vidhyawati, which held the state vicariously liable for torts committed by its employees.

The issue of sovereign functions was revisited in Kasturilal Ralia Ram v. State of UP, where the Supreme
Court conferred immunity for acts done in discharge of sovereign powers like police functions. However,
subsequent Constitution Bench decisions have rejected the sovereign-non-sovereign distinction
altogether. In N. Nagendra Rao v. State of AP, the Supreme Court held that this distinction is outdated
and should no longer apply to determine state liability.
Thus, the state can no longer claim immunity from tortious liability solely on the ground of an act being
done in discharge of sovereign functions. At the same time, certain primary functions like administration of
justice and maintenance of law and order do enjoy some degree of immunity. Barring such exceptional
cases, the general rule is that the state will be vicariously liable for torts committed by its employees
under the misfeasance in public office doctrine.

Constitutional Torts

A constitutional tort is one that involves violation of Fundamental Rights under the Constitution. The
concept of sovereign immunity has no application to such torts. In Nilabati Behera v. State of Orissa, the
Supreme Court awarded compensation against the State for custodial death caused due to its
negligence. Such liability exists irrespective of whether the state action relates to a sovereign function or
not.

Distinction between Sovereign and Non-Sovereign Functions

The classification of governmental functions into sovereign and non-sovereign functions was an important
factor historically in determining the liability of the state.

Sovereign Functions refer to core, primary functions that are intrinsically connected with the state’s
sovereign powers. These include:

Functions related to external sovereignty like defense, war, foreign affairs etc.

Maintenance of law and order

Administration of justice

Legislation

Powers like taxation which represent sovereign attributes

Non-Sovereign Functions comprise the welfare, regulatory and commercial functions undertaken by the
modern state as part of governance. These include:
Running of public utilities likes railways, posts and telegraphs etc.

Social welfare measures

Public health

Education

Commerce and trade

The key distinction between the two was that traditionally, the doctrine of sovereign immunity protected
the state from legal liability arising out of acts done in discharge of sovereign functions. So the state
would be immune from tortious liability if a tort was committed by say, the armed forces during wartime
operations. However, no such immunity would be available where the state undertaking was in the nature
of a non-sovereign or commercial activity.

Post Constitutional Developments in the Sovereign Immunity

This demarcation was subjected to criticism over time. It was argued that most activities of the modern
welfare state cannot be strictly classified into narrow traditional heads of sovereign and non-sovereign
functions. Interpretational issues also plagued the classification exercise.

The Supreme Court noted this criticism in N. Nagendra Rao v. State of AP. It held that the distinction has
largely lost relevance under modern notions of state responsibility. Instead, the crucial test is the nature
and manner of exercise of power – if it involves political questions or falls under primary functions of
governance like law and order, the scope for judicial intervention may be limited.

Barring such exceptional cases where some degree of immunity applies even now, the state is liable for
torts committed by its employees under the misfeasance in public office doctrine. The state cannot
escape liability merely on the sovereign functions defense.

Thus, post-constitutional developments in India have rendered the traditional sovereign-non sovereign
classification largely redundant. The state’s liability today is determined on grounds like the degree of
policy discretion available and not based on this functional distinction.
Creation of Statutory Corporations

The increasing liability imposed on the state paved the way for establishing statutory corporations with
distinct legal personalities. Being independent corporate entities, they have better autonomy in decision
making and are not subject to political interference. Moreover, they enjoy limited liability under law, unlike
state governments that have unlimited fiscal liability. This has facilitated the state’s venture into
commercial activities.

Conclusion

The privileged position of the state as enjoying sovereign immunity has substantially disappeared over
time. This accords with the human rights framework of the Constitution. Effective remedies in contract and
tort are now available against the Union and state governments to compensate for and prevent harm
caused by abuse of state power. Certain core governance functions may still be accorded differential
treatment, but the scope of such exceptions is very limited. Through wider liability as well as statutory
corporations, administrative law in India has delineated an optimal balance between state autonomy and
legal accountability towards citizens.

Administrative Law, Articles

Judicial Review of Administrative Actions under Administrative Law

Judicial review is the power of the courts to examine the actions of administrative bodies to determine
whether they are consistent with the law. Through judicial review, courts act as a check on administrative
power to safeguard against abuse of power and violation of rights. Judicial review aims to ensure that the
executive and administrative arms of government operate within their constitutionally and statutorily
prescribed limits of power.

The source of power of judicial review lies in the Constitution – Articles 32, 226 and the power of High
Courts to issue writs. Over the years, courts have developed rules and doctrines to maintain judicial
control over administrative excesses and keep the administration within legal bounds without impinging
on the government’s policy-making role. The exercise seeks to balance individual rights and larger public
interest. This article examines key aspects concerning judicial review of administrative actions under
administrative law jurisprudence evolved by Indian higher judiciary.
Doctrines Governing Exercise of Judicial Review Powers

Certain doctrines have developed through judicial decisions that govern how courts exercise powers of
judicial review of administrative actions. These help regulate intervention in policy or discretionary
domains of administration. Important ones are:

Doctrine of Procedural Propriety: Failure to comply with important procedural safeguards like hearing,
notice, or times limits could invalidate administrative decisions. But inconsequential technical flaws may
not justify interference. Courts use balancing tests to decide based on harm caused.

Wednesbury Principles of Reasonableness: Associated Provincial Picture Houses Ltd. v. Wednesbury

Corporation, (1948) laid down that courts will not intervene to examine merits or correctness of
administrative decisions. But judicial review is permissible on limited grounds like irrationality, perversity,
and patent unreasonableness in decision. This means that the decision is so outrageous or absurd that
no sensible person applying his mind could have arrived at it.

Doctrine of Legitimate Expectation: Where a regular practice creates reasonable expectation that an
authority will follow a certain procedure, courts may intervene if such legitimate expectation is violated
without overriding public interest. Courts however don’t secure legal rights but only procedural
protections.

Doctrine of Proportionality: Punitive actions of authorities should not be excessive but proportionate to
faults or infractions to comply with this doctrine. Disproportionate orders that violate this ground are liable
to be set aside judicially.

Courts in India have also evolved concepts like epistolary jurisdiction, continuing mandamus and
constitutional torts, expanding the idea of judicial review itself. Public interest litigation has made access
to review remedies easier, especially for underprivileged sections.

Distinction between Public Law and Private Law Review

There are two broad regimes through which judicial review over administration is undertaken:
Public Law Review: Here, review happens through writ petitions before High Courts under Article 226 and
Supreme Court under Article 32 of the Constitution. Grounds for intervention include violation of
constitutional rights or statutory powers through mechanical exercise of jurisdiction, total absence of
jurisdiction, violations of principles of natural justice, bias, mala fides etc. Remedies include issue of
directions and prerogative writs. Focus is on public duties imposed under Constitution and statutes.

Private Law Review: Under this review, powers emanate from ordinary laws like Contract, Tort etc.
Subordinate civil courts or consumer forums approach administrative actions like contractual disputes,
tortious liability where government is in same position as a private party before law. Issues relate to
determinations of private rights and corresponding liabilities/remedies like damages, injunctions and
declarations.

The choice depends on nature of administrative action impugned and type of grievance raised. Rule of
law requires that administration should remain bound by ordinary laws even in dealing with private
parties. Attempt is to balance public interest with protection of individual rights.

Writ Jurisdiction of High Courts and Supreme Court

The High Courts and Supreme Court derive power of judicial review from the Constitution of India. While
Article 32 of the Constitution vests power of an activist kind exclusively in the Supreme Court for
enforcement of fundamental rights, Article 226 confers a discretionary power on all High Courts in the
country to issue writs including for any non-fundamental rights violations.

Some leading cases highlighting expansive understanding taken by courts regarding constitutional
powers of judicial review through writs are:

In State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, the Supreme Court held that power
under Article 32 stands widely recognized as a guarantor and protector of fundamental human rights and
universal access to justice is its integral aspect.

In L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, it was held that power of High Courts under
Article 226 and Supreme Court under Article 32 is paramount and shall always prevail over ordinary
statutes. Jurisdiction under Articles 32 and 226 is a basic feature of the Constitution.

In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, (1954) SCR 803, the Supreme Court
highlighted that Article 226 confers very wide discretionary and equitable jurisdiction on High Courts to
issue writs against any authority for enforcement of fundamental as well as ordinary legal rights.
While the Supreme Court can take cognizance only when there is substantial violation of a fundamental
right, under Article 226, a writ petition can be moved before the High Court both for violation of
fundamental rights as well as where non-fundamental rights are at stake.

Types of Writs under Judicial Review Jurisdiction

The constitutional courts chiefly exercise judicial review powers by issuance of five types of writs under
Articles 32, 226 and also 227. Important writ remedies evolved are:

Habeas Corpus: This commands production of illegally detained person before court to adjudicate legality
of such detention. Grounds include absence of jurisdiction, violation of principles of natural justice, mala
fide exercise of power etc. In Kanu Sanyal v. District Magistrate, it was held that physical appearance is
not mandatory if it threatens public peace.

Mandamus: This is issued to direct statutory and public authorities to perform mandatory duties owed to
an individual if prerequisites like demand, refusal etc. exist. It aims to remedy inaction or failure to act.
However, in UoI v. T.R. Varma, (1958) SCR 499, the Supreme Court made it clear that mandamus cannot
issue to enforce contractual obligations between parties.

Prohibition: The Supreme Court or High Court can pass this writ directing an inferior court or tribunal
exercising quasi-judicial functions not to proceed on a matter without or in excess of its jurisdiction or in
contravention of principles of natural justice etc. The difference from certiorari is that it is available at a
pre-decision stage if statutory authority is threatening to overstep authority.

Certiorari: Under this, higher courts quash decisions of authorities reached while acting without or in
excess of jurisdiction or in violation of principles of natural justice or that are manifestly perverse and
patently illegal. Certiorari operates post an impugned decision. It is a limited form of review – courts can
only quash but not substitute decisions or assessments made.

Quo Warranto: Through this writ, judiciary inquires into legality of claim of a person to public office.
Prerequisite conditions include office being public exhibiting government control, substantive in nature
and person already occupying office. In University of Mysore v. C.D. Govinda Rao, (1965) it was held that
E.C. cannot intervene to remove on grounds of procedural lapses in appointment.

Recourse to these writs depends on timing of intervention sought, grounds raised and type of public office
or action involved etc. Courts also blend remedies with interlocutory directions based on case exigencies.
Key Procedural Doctrines Governing Judicial Review

Over the course of time, judiciary has itself laid down certain doctrines and rules regulating exercise of its
own judicial review powers under writ jurisdiction. Following are among the notable ones:

Exhaustion of Alternative Remedies: Based on equity principle that extraordinary constitutional powers
must be exercised with restraint, locus standi rules initially mandated that the party must first exhaust
other remedies before invoking writ. However, in Chief Controller of Imports v. Mohanlal, (1975) 2 SCC
836, the Supreme Court held that while existence of alternative remedies is relevant for writ exercise,
efficacy of such remedies will determine whether constitutional powers under Article 226 may be invoked
ignoring available statutory modes of redressal.

No Mandamus for Contract Enforcement: Courts generally don’t issue mandamus for securing contractual
rights, damages claims or specific relief through writs. The domain of enforcing contractual obligations is
meant for ordinary civil courts, not constitutional courts exercising public law powers. However, writ can
issue where substantial public interest is involved.

Rule Against Bias and Principles of Natural Justice: Violation of principles of impartial hearing and fair
administrative procedure constitute common grounds for exercise of judicial review powers and writ
jurisdiction.

Thus over the years, while reticence marked initial period, judiciary later expanded contours of review
powers through doctrines like continuing mandamus, substantive due process, public accountability etc.
Reasonableness, good faith and larger public good have guided evolution of principles regulating review
processes.

Private Law Remedies Complementing Judicial Review

The scope of judicial review mechanisms extends beyond writ remedies under constitutional law to
incorporate within its fold dispute adjudication powers of ordinary courts under specific statutes or
common law principles, providing dual protection to citizens. When government or its instrumentalities
function in the same way as private entities, jurisdiction of civil courts can be invoked to enforce
accountability and legal compliance like any citizen through private law remedies. These operate as
supplementary avenues for securing judicial review over administration. Main remedies include:
Injunctions: These are discretionary equitable remedies ordering a party to do or desist from doing a
certain act. Both permanent prohibitory injunctions and temporary injunctions are suited to check
administrative actions. Courts apply ‘balance of convenience’ tests to determine whether to grant
injunction against public authorities.

Declarations: These clarify legal position between parties without directly providing any actual relief or
remedy. They accrue precedential value guiding future conduct. Requires consequential reliefs too.

Damages: Compensate plaintiff for loss suffered due to acts of omission or commission of defendants. To
avoid multiplicity, in constitutional torts (violation of fundamental rights), courts may award compensation
if facts are undisputed and chain of causation is established.

The presence of efficacious remedies like injunctions adds to the array of options available before
judiciary in keeping administration within legal bounds and thus furthers the objective of accountability
that judicial review seeks to secure.

Concluding Analysis

Administrative law jurisprudence has seen significant advance across both procedural and substantive
aspects of judicial review law. While earlier excessive judicial activism witnessed recalibration, continuing
mandamus and structural injunctions have allowed nuanced interventions balancing review with restraint.
Tests of proportionality and legitimate expectation have brought substantive depth.

The basic objective is to achieve reasoned decision making where discretionary choices incorporate
filtered influences of law, policy, ethics, pragmatism and experience. This mediatory approach preserves
semantic unity of rule of law in letter and spirit, best exemplified through integrated exercise of
constitutional and statutory review mechanisms – weaving a holistic accountability web for citizens and
governments alike. Easy accessibility, contextual understanding and dynamic remedies hold the key to a
responsive review framework. Innovation of existing doctrines coupled with articulation of new standards
reflecting socio-political realities will shape future evolution of judicial review guiding interplay of power,
justice and rights in a democracy.
Writs and Writ Jurisdiction under Administrative Law

Introduction

The Constitution of India under Article 32 and 226 provides the right to move the Supreme Court and High
Courts respectively for enforcement of fundamental rights through appropriate writs. This extraordinary
jurisdiction empowers the highest judicial bodies to issue binding orders and directions to any person or
authority in the territory of India for upholding the Constitution. The purpose is to act as a check on
administrative authorities, tribunals and even legislative bodies to ensure rule of law and protect
fundamental rights.

Habeas Corpus

The literal meaning of habeas corpus is ‘to produce the body’. It is issued to secure release of a person
who is illegally deprived of his personal liberty through detention. The court can examine legality of
detention orders under preventive detention law or in case of minors, insane persons, women detained by
relatives etc.

In Kanu Sanyal v District Magistrate, Darjeeling, the Supreme Court held that for reasons of public order,
it is not mandatory to physically produce the detained person in court. But the legality of detention has to
be justified.

The procedural requirements for filing have also been relaxed in habeas corpus petitions. In Ichhu Devi
Choraria v Union of India, 1980 AIR 1436, the Supreme Court held that even a postcard written to the
court was enough to invoke habeas jurisdiction. Strict rules of pleadings and burden of proof are not
followed given the urgency involved regarding personal liberty.

In Rudul Sah v State of Bihar, AIR 1983 SC 1086, the principle of res judicata was also held inapplicable
as multiple habeas petitions can be filed if detention is found illegal. This writ can be claimed as a matter
of right and not at discretion of the court unlike others.

Mandamus

Mandamus literally means ‘we command’. It is issued against any public body or authority to enforce
performance of public duties cast by law. The duty must be mandatory and not discretionary in nature and
the petitioner must have a legal right to claim performance of such duty.
In Union of India v Tarachand Gupta, the Supreme Court observed that there should be a demand and
corresponding refusal before mandamus is issued. Failure to respond promptly to a demand could also
constitute refusal. If the authority has a discretion, court can order exercise of discretion but not the
manner of exercise in a particular way.

This writ does not lie for enforcement of contractual obligations as held in State of Himachal Pradesh v
Himachal Techno Engineers. However, where a statutory body enters into a contract while discharging a
statutory duty, the obligation becomes a statutory one enforceable by mandamus as held in U.P.
Warehousing Corp. v Vijay Narain.

In the landmark case of Kesavananda Bharati v State of Kerala, mandamus was issued to the Kerala
Government to not pursue land reform legislations that were held unconstitutional by the Supreme Court.

Certiorari

Certiorari means ‘to be certified’. It is prayed for to quash orders passed by administrative agencies,
quasi-judicial bodies or judicial authorities acting in excess of their jurisdiction. The grounds include errors
of law apparent on face of the record, violation of natural justice, excess of jurisdiction and mala fides. It
can only be issued after the order is passed.

In Hari Vishnu Kamath v Syed Ahmad Ishaque, the Supreme Court observed that an error of law which is
apparent ex facie is one which does not require detailed examination or argument to establish it. If the
error is not self-evident but requires demonstration, certiorari is not available.

Prohibition

The writ of prohibition is available at a stage before the impugned action is taken while certiorari is for
quashing the same after it is already done. For instance, if a tribunal is about to hear a matter in violation
of natural justice, it can be prohibited from doing so through this writ. Else the hearing order would have to
be quashed by certiorari which causes unnecessary multiplicity of proceedings.

The grounds for prohibition are essentially same as of certiorari like lacking of or acting in excess of
jurisdiction, violation of natural justice etc. In Re Special Reference No. 1 of 1964, the Supreme Court
prohibited the Punjab Legislative Assembly from expelling a member since it had no jurisdiction to
regulate its internal proceedings after President’s Rule was imposed.

Quo Warranto
The writ of quo warranto which means ‘by what authority’ calls upon the public office holder to show under
which authority of law he holds office. It can be claimed when a person is illegally occupying a public
office or when the appointment itself is contrary to statutory provisions. Office must also be substantive
i.e. permanent in nature and person should be actually occupying it.

In University of Mysore v C.D. Govinda Rao, 1964 AIR 469, the Supreme Court clarified that ‘public office’
means an office created by the Constitution, law or by executive power of State. It must entail
independent responsibilities except to superior authority. The Court can examine if statutory requirements
and procedure for appointment were followed or not through this writ.

Distinction between Injunction and Mandamus

Though mandamus is a public law and injunction a private law remedy, there are some similarities. Both
are equitable remedies aimed at compelling performance or preventing action. However injunction can be
claimed only against private bodies under specific statutes while mandamus lies against public authorities
or those discharging public functions. Monetary compensation is possible under injunction but not
mandamus. Statutory bar does not apply and procedural requirements u/s 80 CPC don’t have to be
followed for the latter. Courts have held that constitutional remedies enjoy primacy over ordinary statutory
ones.

Writ Jurisdiction of Supreme Court and High Courts

Article 32 provides the right to move the Supreme Court directly for enforcing fundamental rights while
Article 226 confers power (not right) on High Courts to issue writs based on violation of any legal right.
Territory wise jurisdiction of HC’s is wider as against the pan-India SC jurisdiction. Alternative remedy
does not bar the SC but writ can be refused by HC under discretionary jurisdiction if efficacious alternative
remedy exists or owing to inordinate delay etc.

Under 226, even private bodies discharging public functions can be made liable unlike under Article 32
where only State authorities are covered. Orders under 32 cannot be ordinarily appealed against making
SC the final court for fundamental rights while writs under 226 can be challenged before division bench of
HC and then SC.

Thus, the writ mechanism forms an indispensable part of Indian administrative law framework for
protecting rule of law and checking abuse of power through immediate judicial intervention, irrespective of
status of the violator. Ordinary remedies under law often prove inadequate to tackle high handedness of
State agencies and the extraordinary writs aptly fit this purpose.
Conclusion

The writ system has enabled the common man to directly approach the highest constitutional courts and
seek reliefs and directions against most powerful governmental authorities within a short span of time.
Gradually, writ jurisdiction expanded to cover even non-statutory bodies and now private institutions
discharging public functions. Scope was further enhanced by Public Interest Litigations which relaxed
procedural bottlenecks. This shows evolution of writ remedies as the true guardians of people’s rights and
sentinel to uphold justice.

Ombudsman, CVC, Lokpal, and Lokayukt

An ombudsman, central vigilance commission (CVC), Lokpal, and Lokayukt are important institutions
aimed at ensuring accountability, transparency and efficient grievance redressal in public administration in
India. They investigate complaints of corruption, maladministration and abuse of power against public
officials and authorities. This blog analyzes the key features, roles, appointment processes, limitations of
the ombudsman, CVC, Lokpal and Lokayukt in detail.

OMBUDSMAN
The ombudsman, derived from Swedish word “ombuds” meaning agent or representative, is an
independent and impartial quasi-judicial institution that investigates complaints of citizens against
administrative actions and inactions of public functionaries. The Administrative Reforms Commission in
1966 first recommended establishing the institution to supplement the overburdened courts in ensuring
administrative justice.

Also Read: Notes on Administrative Law

Functions and Powers

The key functions of the ombudsman include:

Investigating allegations of corruption, maladministration, abuse of power and discretion against

government officials based on complaints.
Recommending disciplinary or remedial action where necessary.
Mediating fair settlements and redressal between citizens and administration.
Undertaking suo moto investigations and inspections.
The wide-ranging powers of the ombudsman include examining witnesses, ordering production of
documents, conducting spot inspections, appointing experts for assistance and suggesting systemic
improvements. As per the Andhra High Court ruling in A.P. Ombudsman Vs. Sri Kutumba Rao, the
ombudsman also has power to award compensation to aggrieved citizens.

Appointment and Removal

The ombudsman is appointed by the state government in consultation with the chief justice of the High
Court. The person appointed must be either a retired Supreme Court or High Court judge or an officer
qualified for such judgeship. To ensure independence, security of tenure is provided wherein the
ombudsman can be removed only through the same process as a high court judge.
Limitations
The non-binding recommendations of the ombudsman are the main limitations. While regularly published
investigation reports naming erring officials build public pressure, the concerned government departments
often ignore the recommendations without adequate explanation or justification. Lack of awareness
among citizens about the institution also hinders its optimal impact.

THE CENTRAL VIGILANCE COMMISSION

The Central Vigilance Commission (CVC) was established in 1964 based on the recommendations of the
Santhanam Committee to advise and guide central government agencies in vigilance related matters. It
has the status of an autonomous statutory body.

Functions
The key functions performed by CVC include:
Overseeing and coordinating vigilance activities under central government.
Advising various authorities on planning and executing reforms to address corruption and
maladministration.
Inquiring into complaints of corruption, misconduct and abuse of power against central government
officials based on complaints as well as suo moto.
Overseeing functioning of Central Bureau of Investigation with respect to cases referred for inquiry to CBI.
Appointment and Removal
The central vigilance commissioner and other commissioners are appointed by the President on
recommendation of a committee consisting of the Prime Minister, Home Minister and Leader of
Opposition in Lok Sabha. They can be removed by the President on grounds of misbehaviour or
incapacity, only after a Supreme Court inquiry on reference by the President.

Limitations
CVC’s recommendations are advisory in nature and government departments can reject them without
sufficient justification. It lacks adequate resources and financial autonomy. CVC also cannot direct
investigations suo moto against senior officials above joint secretary rank without departmental
permission, thus hindering its independent functioning.

LOKPAL
The Lokpal is an anti-corruption authority envisioned as an independent body to inquire into allegations of
corruption against public functionaries in the Union Government with its roots in the 1966 ARC report.
However, the long delays in its operationalization led the Supreme Court to intervene and issue directives
for establishing Lokpal by framing a law.

Composition and Appointment

As per the Lokpal Act 2013, the Lokpal is chaired by a former Chief Justice or Judge of Supreme Court
and includes judges, Chief Justice of High Court, officers with impeccable integrity and at least two
eminent persons nominated by a high-level selection committee. 50% of the Members are Judicial
Members.

The Lokpal chairperson and members are appointed by the President on recommendations of a selection
committee comprising the PM, Lok Sabha Speaker, Leader of Opposition, Chief Justice of India and an
eminent jurist nominated by the President.

Jurisdiction and Powers

The Lokpal has jurisdiction over offences involving public servants under the Prevention of Corruption
Act, 1988. Its powers include superintendence over Delhi Special Police Establishment, conducting
preliminary inquiry and full investigation through any agency, prosecution of cases, and recommendation
of penalties and punishments. Appeals against Lokpal orders lie directly in Supreme Court.

Limitations
While the operationalization of Lokpal is a landmark step in anti-corruption efforts, concerns persist such
as non-inclusion of prime minister under Lokpal ambit except regarding international treaties,
discretionary exclusion of certain public servants notified by the government, lack of financial and
functional autonomy from government control.

LOKAYUKTA
Inspired by Sweden’s Ombudsman system, the Lokayukta or Ombudsman system was established at
State-level in India to redress citizens’ grievances against public functionaries and check corruption,
nepotism and maladministration. The 1973 Rajasthan Lokayukta law was the first such law.

Composition and Appointment

Lokayukta is generally headed by a former Supreme Court or High Court Chief Justice or Judge, and
includes members with impeccable integrity and special knowledge of law or public administration. In
some states, Lokayukta chairperson has the rank of a Supreme Court Judge and members rank of High
Court Chief Justice.

Lokayukta members are appointed by the Governor on advice of Chief Minister, Chief Justice of the High
Court and in consultation with the State Leader of Opposition.

Powers and Functions

The Lokayukta’s functions involve probing administrative actions and allegations of corruption, favoritism,
abuse of power and misconduct based on complaints or suo moto, and recommending suitable action to
concerned competent authorities. The Lokayukta Act in many states empowers it to ensure satisfactory
public service delivery and address systemic deficiencies and maladministration. Its quasi judicial powers
include issuing search warrants, attachment and confiscation of property, ordering compliance and
levying penalties.

Limitations

While the Supreme Court has termed state Lokayuktas as ‘watchdogs against corruption’, many states
have failed to establish an independent and empowered Lokayukta. Non-binding recommendations which
are frequently disregarded by the government without repercussion, inadequate staffing, lack of financial
autonomy are some limitations impeding its effective functioning in many states.

Suggested Reform Measures

To enhance independence and effectiveness of these anti-corruption institutions, reform measures are
imperative such as:

Independent, merit-based and transparent

appointment process under Lokpal Act.

Establishing adequate infrastructure, financial, and staffing support systems.

Vesting adequate enforcement and sanction powers for autonomous functioning.

Strengthening capacity to utilize technology and innovative methods in investigation.

Conducting regular independent performance audits.

Addressing delays in selection committees and appointments.

Expanding authority over wider range of public servants.

Enacting Whistleblower Protection Act.

Increasing awareness among citizens regarding legal rights and duties.

Conclusion

An empowered and independent anti-corruption framework safeguards citizens’ rights in public services,
ensures accountability and effectiveness of administration. Thus apart from facilitating inclusive growth,
establishing robust institutions like ombudsman, CVC, Lokpal and Lokayukt boosts transparency, checks
abuse of power and upholds constitutionalism. However, much ground needs to be covered in terms of
optimal resourcing and true autonomy of these bodies. As the Supreme Court asserted, “If Lokpal is to be
effective, it needs to be appropriately empowered and enabled to discharge its onerous duties”.

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Administrative Law, Articles
Administrative Discretion under Administrative Law
January 15, 2024
Introduction

Administrative discretion refers to the flexibility and autonomy given to administrators and executive
authorities while applying broad policies to individual situations. It allows them to assess each case based
on its unique circumstances and take decisions they deem fit instead of mechanically following set rules.
However, unfettered discretion can lead to arbitrariness and injustice. Therefore, administrative discretion
needs to be kept in check through political and legal controls.

Evolution of the Concept

The foundations of administrative discretion can be traced back thousands of years to the principles of
ethical decision-making laid down by Greek philosophers like Socrates. In modern history, its emergence
can be seen during President Andrew Jackson’s tenure when he started appointing his supporters to
government positions, leading to the “spoils system.” This enabled administrators to exercise significant
discretion in hiring federal employees.
The New Deal programs under President Franklin D Roosevelt’s administration also relied heavily on
administrative discretion to disburse welfare benefits. Subsequently, the passing of the Administrative
Procedure Act, 1946 in the United States formally recognized the role of discretion while also putting in
place statutory safeguards against its misuse.

Need for Administrative Discretion

Administrative discretion has become indispensable today with the state performing a multiplicity of
functions. As the Supreme Court noted in Paschim Banga Khet Mazdoor Samity v. State of West Bengal,
“In a welfare state the primary duty of the government is to secure the welfare of the people.“

To fulfill this duty, the state deals with complex socio-economic problems like poverty, healthcare,
education etc. that require case-by-case analysis rather than a “one size fits all” approach. Direct
legislation is not feasible for every administrative action. Discretion needs to be conferred to officials
involved in grassroot implementation for optimum utilization of resources.

As Wade notes, “If the state is to care for its citizens from the cradle to the grave…it needs a huge
administrative apparatus. Relatively little can be done by merely passing Acts of Parliament and leaving it
to the courts to enforce them…There must be discretionary power.“

Forms of Administrative Discretion

Administrative discretion manifests itself in diverse forms across the expansive state machinery:

Licensing and Permits: Authorities have the discretion to grant/deny licenses based on prescribed
conditions.

Investigation: Agencies can decide whether investigation is warranted in a particular case.

Inspections: Authorities determine frequency/methods of inspections.

Allotment of Government Resources: Resources allotted based on officials’ assessment of public interest.

Public Procurement Contracts: Relative weighting given to factors like cost v/s quality is discretionary.

Tax Assessment: Complex tax calculations involve discretion of assessing officers.

Conducting Elections: Election Commission decides on code violations, use of force, re-polls etc. based
on its judgment.

As noted in Ram Jawaya Kapoor v. State of Punjab, these types of “residuary” functions requiring
case-by-case decision making comprise a bulk of modern administrative activity. Unchecked discretion
has the potential for misuse and arbitrary exercise of power. Thus, it is imperative to put in place control
mechanisms.

Control over Administrative Discretion

The key methods to control administrative discretion are political control via the legislature/Parliament and
legal control through judicial review.

Parliamentary Control

The executive remains accountable to the Parliament in India’s democratic structure. The Parliament can
frame policies, rules and guidelines restricting discretion available to administrators. MPs can also raise
grievances regarding administrative high-handedness through questions, debates etc. forcing the
executive to respond.

However, parliamentary control has limitations as the legislature lacks the time for examining individual
instances of misuse of discretion. Complete policy straitjacketing through parliamentary legislation is also
not feasible. The intricacies of implementation ultimately need to be left to the administrators’ judgment.

Judicial Control

Judicial review of administrative action flows from the basic structure of the Constitution as held in the
Kesavananda Bharati case. It is the most effective control mechanism keeping administrators within legal
bounds and ensuring rule of law. Through writ remedies and appeals, high courts and the Supreme Court
can quash administrative acts found to be illegal, irrational, vitiated by procedural impropriety or
disproportional.

As Lord Diplock notes in Council of Civil Services Unions v. Minister for the Civil Service, judicial review
ensures authorities act lawfully and fairly, follow correct procedure, exercise discretion reasonably and
proportionately, respect legitimate expectations created vis-a-vis individuals through previous conduct,
respect human rights and give everyone an equal right to be heard before deciding anything that affects
them detrimentally.

Important Grounds for Judicial Review

Some key grounds based on which courts can strike down unreasonable exercise of administrative
discretion are:

Exceeding jurisdiction
Denial of natural justice
Acting arbitrarily/in bad faith
Fettering discretion through rigid self-created rules
Taking irrelevant considerations into account
Failure to take relevant factors into account
Abuse of discretion amounting to mala fides
Violation of legitimate expectations
In cases like S.G. Jaisinghani v. Union of India and Maneka Gandhi v. Union of India, the Supreme Court
has warned all authorities that statutory discretion does not mean absolute, arbitrary power. It has to be
exercised judicially, objectively and in public interest. Citizens have a right to good governance and
discretion needs to facilitate it, not obstruct it.

Balancing Administrative Efficiency with Judicial Safeguards

While reviewing discretion, courts have to strike a practical balance between administrative efficiency and
legal safeguards against the “drunken driver” misusing his power. Blind judicial interference guided solely
by abstract notions of ultra vires could bring governance to a standstill.

As Lord Greene notes in Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, courts
must realize that discretion can be properly exercised in more than one way and only “a very extreme
case” would warrant judicial intervention.

Similarly, in election cases, while dealing with alleged misuse of discretion in violating the election code,
the Supreme Court has clarified that only substantial illegalities and procedural improprieties will merit
setting aside electoral results. Not every minor breach allows courts to nullify people’s mandate.

Conclusion

In conclusion, administrative discretion has to be structured in a way that balances expediency with
responsibility. Officials require flexibility to adapt policies to ground realities. But flexibility cannot extend to
absolutism. It is a “power plus responsibility” model that is squared by accountability. Mechanisms like
judicial review, audits, RTI and public participation offer the restraints needed to channelize discretion
constructively and fulfill constitutional ideals of a just, equitable and responsible state. Ultimately, utmost
probity and wisdom has to be cultivated within every link of the bureaucratic machinery. This remains an
unceasing challenge and pursuit for good governance.

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Administrative Law, Articles
Montesquieu’s Doctrine of Separation of Powers and Administrative Law
January 14, 2024
The concept of separation of powers finds its origin in the political philosophies of Locke and
Montesquieu. As Montesquieu notes in The Spirit of Laws (1748), “There can be no liberty where the
legislative and executive powers are united in the same person, or body of magistrates.” This core idea
evolved into the doctrine of separation of powers, which asserts that the major institutions of state –
legislative, executive, and judicial – should be functionally independent.

Foundation of the Doctrine

Montesquieu’s doctrine rests on two basic principles:

To prevent arbitrary rule and safeguard individual liberties, governmental powers must be separated and
balances amongst various institutions.
The Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights (2010) held
that the essence of this doctrine lies in having checks and balances to protect individuals from potential
excesses by any one institution.

Each organ of the government must be confined to the exercise of its own function and not allowed to
encroach upon the functions of other organs.
As noted in Ram Jawaya v. State of Punjab (1955), the Indian Constitution does not recognize rigid
separation of powers but broadly demarcates them to ensure smooth governance. Still, encroachment by
one organ on the domain of another is forbidden.
Also Read: Notes on Administrative Law

Three Rules of Separation

Montesquieu structured separation across three rules:

One organ should not interfere with the working of another organ. This promotes specialization and
efficiency in governance.
One organ must not exercise functions belonging to another. In Government of A.P. v. P. Laxmi Devi
(2008), the Supreme Court held that judicial functions cannot be exercised by the legislature or executive.
The same person should not form part of more than one organ. This prevents conflict of interest and
abuse of power.
Benefits of the Doctrine
Montesquieu envisioned several benefits from separating functions, including:
Preventing tyranny and safeguarding individual freedom
Promoting specialization of roles across institutions
Ensuring accountability as one check on the other
Improving efficiency in governance
As the Supreme Court noted in Kesavananda Bharati v. State of Kerala (1973), this doctrine protects
against “unfettered social control” by any one institution.

Modifications for Practical Governance

While the core principles hold merit, some modifications have been required in practice:

The Council of Ministers is drawn from the legislature, deviating from the rule against belonging to
multiple organs. As Granville Austin notes, the Indian Constitution creates a “blurred separation of
powers.“

The executive is accountable to the Parliament and its acts can be questioned there.

Delegated legislation allows the executive to exercise limited legislative powers. Similarly, in exercising
quasi-judicial functions the executive applies judicial expertise over specialized subjects.

As the Supreme Court held in In re Delhi Laws Act (1951), some overlap of functions is permitted out of
“necessities and convenience” of administration. Complete separation is neither possible nor prudent. A
harmony between the organs allows “community of action” for effective governance.

Conclusion
In conclusion, Montesquieu’s doctrine retains high relevance as it sets a principled foundation for efficient
and accountable governance. However, pragmatic modifications permit constructive overlap where strictly
bifurcated roles would hamper coordinated functioning across organs. Our Constitution incorporates a
balanced separation of powers, upholding liberty while also supporting good governance.