UNIT 1

NATURE AND SCOPE OF ADMINISTRATIVE LAW

MEANING OF ADMINISTRATIVE LAW

Administrative law strives to develop a rule of law. It regulates the relationships

between citizens and government & protects the common man from arbitrary
decisions of officials. It consists of all executive actions, its programs & policies; all
administrative aspects of parliament & judiciary; all actions of state like actors
(agency & instrumentality of the state); all actions of non-state actors (private
entities) exercising public functions. It is the branch of public law which ensures the
working of government at both central and state levels and also deals with the
organizations and powers of administrative and quasi- administrative bodies. It is
judge-made law in general which ensures public
welfare by providing guidelines.

DEFINITION OF ADMINISTRATIVE LAW

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

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

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

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

NATURE OF ADMINISTRATIVE LAW

(i) Administrative law is the law related to the control of powers of governance and
administration,

(ii) It is a law ensuring the organization of governance and administration, their

rights, powers, functions and responsibilities,

(iii) It is a law made by the courts, and

(iv) This is a law that establishes control over administrative work. The aim of which
is to establish harmony between the rule of law and administrative discretion.

Due to its nature it is called the science of power of administrative authorities. This
can be studied under three headings –
(a) relationship,
(b) judicial,
(c) Executive.

SCOPE OF ADMINISTRATIVE LAW

Scope means an area of study or the variety of subjects that are being discussed or
considered. As administrative law is almost judge-made law so it changes according
to societal needs but in the guidance of the basic principles so the scope of this law
is wider in comparison to other laws. Administrative law determines the powers and
duties of the organization and the administrative authorities.

1. Principles of natural justice and for rulemaking

2. Notion of the Rule of law

3. Law conferred power to administration as per Article 13 of the Indian Constitution

4. Accountability of powers, no power is absolute or uncontrolled

5. There should be a reasonable restriction on the regulations of such powers

6. The power of the court to issues writs

7. Opinions of public and mass media.

EVOLUTION OF ADMINISTRATIVE LAW

Pre colonialism period:

The roots of administrative law in India can be traced back to the ancient times,
specifically during the rule of the Mauryas and the Gupta dynasties. These
dynasties had a centralized administrative system in place. This was followed by the
Mughal era, which also had a similar system of administration.

The primary responsibilities of the kings during these ancient times were threefold -
safeguarding the state from foreign invasions, tax collection, and maintaining peace
and order within the state.

independence period:

The advent of the British in India marked the introduction of a new legal system.
The
formation of the East India Company significantly amplified the powers of the
government. The British Parliament introduced numerous acts, legislatures, and
statutes aimed at regulating public safety, health, morality, transportation, and labor
relations. During the British era, India functioned as a police state.
The roots of many operational and structural elements such as the All-India
Services, recruitment processes, training programs, secretariat system, office
procedures, budgeting, centralised tendency, revenue, local and police
administration can be traced back to this period.

Post independence period:

The concept of social welfare was swiftly embraced following independence,

particularly after the constitution was adopted. The preamble of the constitution
proclaims India as a socialist, secular, and democratic republic committed to
providing justice, liberty, equality, and fraternity to all its citizens.
The Indian Constitution specifically embodies
the philosophy of a welfare state. It includes provisions to ensure social, economic,
and political justice, as well as equality of status and opportunity for all citizens.

Relationship BTW administrative law & constitutional law

administrative law invades into the territory of constitutional law, so it is very
important for jurists, scholars and law students to develop a proper understanding
between the relationships between these two. Both constitutional law and
administrative law are parts of the public law which shows that constitutional law is
the mother of administrative law and it cannot be totally separated from each other.

In constitutional law, arbitrary action is limited by the norms and principles of

administrative law of fairness, reasonable and justness. Administrative law deals
with the organizations, powers, functions, and duties of administrative authorities,
on the
other hand, constitutional law deals with the general principles relating to the
organization and powers of various organs of the state and the relationship of these
organs with the individuals. The constitution describes the various organs of the
government at rest, while administrative law describes them in motion. It may be
pointed out that constitutional law deals with the rights and administrative law focus
on public needs.

In a written Constitution, the control mechanism over the powers of the

administrative authorities is sometimes delineated at length. For example, in India,
which has a written Constitution, there are several constitutional provisions, e.g.,
Articles 32, 136, 226, 226, 227,299 and 300, whichcomprehensively devise the
modes of judicial control over different kinds of administrative actions. There is no
gainsaying that the judicial activism of recent years has potentially contributed to the
development of administrative law in India. The dynamic interpretation of various
remedial provision of the Constitution has expanded the horizons of judicial control
of administrative action.

RULE OF LAW
Definition of Rule of Law
• According to Edward Coke , “Rule of Law means:
A) Absence of arbitrary power on the part of the Government.
B) No man is punishable or can be made to suffer in body or good except for a
distinct breach of law established in the ordinary legal manner before the ordinary
courts of the land.

Dicey’s Rule of Law

• The Rule of Law, in its most basic form, is the principle that no one is above the
law. The rule follows logically from the idea that truth,
and therefore law, is based upon fundamental principles which can be discovered,
but which cannot be created through an act of will.
Origin of Rule of Law
• The origins of the Rule of Law theory can be traced back to the Ancient Romans
during the formation of the first republic; it has since been championed by several
medieval thinkers in Europe such as Hobbs, Locke and Rousseau through the
social contract theory.
• Indian philosophers such as Chanakya have also espoused the rule of law theory
in their own way, by maintain that the King should be governed by the word of law.
The concept of Rule of Law is that the state is governed, not by the ruler or the
nominated representatives of the people but by the law.
• The expression 'Rule of Law' has been derived from the French phrase 'la
principle de legalite', i.e. a Government based on the principles of law.
Rule of Law – Meaning & Scope
Dicey in his work stated that the Rule of Law is fundamental to the English legal
system and gives the following three meanings to the doctrine:

Supremacy of Law

Rule of law according to Dicey means the absolute supremacy or predominance of

regular law as opposed to the influence of arbitrary power or wide discretionary
power.
It means the exclusion of the existence of arbitrariness on the part of the
government.
This in essence means that no man can be arrested, punished or be lawfully made
to suffer in body or in goods except by the due process of law and for breach of a
law established in the ordinary legal manner before the ordinary courts of the land.

Equality before Law

While explaining this aspect of the doctrine, Dicey stated that there must be equality
before the law or equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts.
Dicey believed that the exemption of civil servants from the jurisdiction of the
ordinary courts of law and providing them with special tribunals was the negation of
equality.
He stated that any encroachments on the jurisdiction of the courts and any
restriction on the subject’s unimpeded access to them are bound to jeopardise his
rights.

Judge-made Constitution
Dicey observed that in many countries rights such as the right to personal liberty,
freedom from arrest, freedom to hold public meetings, etc. are guaranteed by a
written Constitution; in England, it is not so.
In England, those rights are the result of judicial decisions in concrete cases that
have actually arisen between the parties.
Thus he emphasized the role of the courts of law as guarantors of liberty and
suggested
that the rights would be secured more adequately if they were enforceable in the
courts of law than by mere declaration of those rights in a document.

Exceptions to Rule of Law

Some exceptions to the concept of the rule of law are discussed below.

‘Equality of Law’ does not mean that the powers of private citizens are the same as
the powers of public officials. e.g. a police officer has the power to arrest which the
private citizen does not have.
The rule of law does not prevent certain classes of persons from being subject to
special rules, for example, the armed forces are governed by military laws.
Ministers and other executive bodies are given wide discretionary powers by the
statute.
Certain members of society are governed by special rules in their professions like
lawyers,
doctors and nurses.

Separation of Powers

Administrative law is law that relates to the administration of a government's

bureaucratic agencies. Its power is derived from the highest branches of
government and the constitution by which they were formed. In the context of
administrative law, separation of powers is the concept that each of the branches of
government has unique responsibilities and powers. This ensures that no one
branch of government can supersede the others and claim ultimate power for
itself.Separation of powers divides the mechanism of governance into three
branches i.e. Legislature, Executive and the Judiciary. Although different authors
give different definitions, in general, we can frame three features of this doctrine.
Each organ should have different persons in capacity, i.e., a person with a function
in one organ should not be a part of another organ.
Objectives of Separation of Powers:
The following are the fundamental objectives of the doctrine of separation of
powers:
Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an
accountable and democratic form of government.
Secondly, it prevents the misuse of powers within the different organs of the
government. The Indian Constitution provides certain limits and boundaries for each
domain of the government and they are supposed to perform their function within
such limits. In India, the Constitution is the ultimate sovereign and if anything goes
beyond the provisions of the constitution, it will automatically be considered as null,
void and unconstitutional.
Thirdly, it keeps a check on all the branches of the government by making them
accountable for themselves.
Fourthly, separation of powers maintains a
balance among the three organs of government by dividing the powers among them
so that powers do not concentrate on any one branch leading to arbitrariness.
Fifthly, this principle allows all the branches to specialize themselves in their
respective field with an intention to enhance and improve the efficiency of the
government.

Elements of Separation of Powers

Legislative
The legislative organ of the government is also known as the rule-making body. The
primary function of the legislature is to make laws for good governance of a state. It
has the authority of amending the existing rules and regulations as well. Generally,
the parliament holds the power of making rules and laws.

Executive
This branch of government is responsible for governing the state. The executives
mainly implement and enforce the laws made by the
legislature. The President and the Bureaucrats form the Executive branch of
government.

Judiciary
Judiciary plays a very crucial role in any state. It interprets and applies the laws
made by the legislature and safeguards the rights of the individuals. It also resolves
the disputes within the state or internationally.

Advantages:
There are various advantages with the acceptance of this doctrine in the system;
The efficiency of the organs of state increased due to separation of works hence
time consumption decreases.
Since the experts will handle the matters of their parts so the degree of purity and
correctness increases.
There is the division of work and hence division of skill and labour occurs.
Due to division of work there is no overlapping remains in the system and hence
nobody interfere with others working area.
Since the overlapping removed then there is no possibility of the competition in
between different organs

Classification of administrative functions:-legislative , administrative & judicial

Administrative action is a comprehensive term and defies exact definition. In

modern times the administrative process as a byproduct of intensive form of
government cuts across the traditional classification of governmental powers and
combines into one all the powers which were traditionally exercised by three
different organs of the State.
The administration is the meeting point of the three types of governmental functions,
namely legislative, judicial and administrative.
LEGISLATIVE, EXECUTIVE AND JUDICIAL FUNCTIONS

Legislative functions

When any administrative authority exercises the law making power delegated to it
by legislature, it is known as the rule making action of the administration or quasi
legislative action. The legislative functions of the executive consist of making rules,
regulations, bye-laws etc.
If a particular function is termed 'legislative' or 'rule making' rather than 'judicial' or
'adjudication' it may have substantial effects upon the parties concerned.
If the function is treated as legislative in nature, there is no right to a notice and
hearing unless a statute expressly requires them.

Judicial functions
According to committee on Ministers Power - Pure Judicial Function pre supposes
an existing dispute between two or more parties & dispute between two or more
parties & it involves four requisites.
• Presentation of their cause by the parties to the dispute
• If the dispute is question of fact- ascertainment by evidence, arrangements etc.
• If the dispute is question of Law submission of Legal argument by the parties.
• A decision- by finding facts in dispute & application of Law to the facts- ruling upon
disputed question of Law. Thus in a pure judicial function - The aforesaid if
requisites must be present the decision is Judicial decision even though it might
have been made by Minister, Board Exe-authority Adm./ officer, tribunal etc.

Administrative Functions
In Ram Jawaya V/s State of Punjab, Mukherjee C.J. observed. "It may not be
possible to frame an exhaustive definition of what executive functions means and
implies.
Ordinarily the executive power connotes the residence of Govt. function that
remains after Legislative & Judicial functions are taken away.
Following characteristics are inherent in
Administrative functions:
(1) Administrative order generally based on Govt. policy/ expediency.
(2) In administrative decision - no legal obligation to adopt judicial approach-
decision-subjective.
(3) Not bound by the rules of evidence of procedure.
(4) Can take decision in exercise of statutory powers or in the absence of statutory
provisions.
(5) Administrative functions - delegated / Sub-delegated
(6) Administrative authority may consider
evidence, even use discretion.
(7) Administrative authority is not always bound principle of natural justice unless
statutory provision.
(8) Administrative action may be held invalid on the ground of unreasonableness.

DELEGATED LEGISLATION:- MEANING, NATURE, SCOPE, FORMS AND ITS

GROWTH

MEANING OF DELEGATED LEGISLATION

According to Salmond, delegation legislation is the legislation that comes from any
form of authority apart from the sovereign power and depends on a supreme
authority for the continuance of its existence.
Delegated legislation is a kind of subordinate legislation. Generally, the 'delegated
legislation' means the law made by the executive under the powers delegated to it
by the Supreme legislative authority.
It comes in the form of orders, bye-laws etc. The Committee on Minister's power
said that
the term delegated legislation has two meanings-

1. Firstly, it means the exercise of power that is delegated to the executive to make
rules.

2. Secondly, it means the output or the rules or regulations etc. made under the
power so given

OR
Delegated legislation, also known as subordinate or secondary legislation, refers to
laws made by individuals or bodies authorized by the legislature to create detailed
regulations under a specific Act of Parliament.

Delegated legislation derives its authority from an enabling Act passed by the
legislature. The Act grants the responsible authority the power to create regulations
within the scope defined by the primary legislation.
NATURE OF DELEGATED LEGISLATION

1. *Authorization:* Delegated legislation is authorized by the primary or enabling

legislation passed by the legislature, which grants specific powers to a delegated authority
to make rules and regulations.

2. *Scope:* It covers a wide range of matters, including administrative procedures,

technical standards, licensing requirements, and implementation details of primary laws.

3. *Types:* Delegated legislation can take various forms, such as regulations, orders, rules,
bylaws, statutory instruments, and administrative decisions.

4. *Purpose:* It serves to fill in the details and practical aspects of primary legislation,
allowing for flexibility, expertise, and efficiency in implementing and enforcing laws.
5. *Accountability:* Delegated authorities are accountable to the legislature or higher
government bodies, ensuring oversight and review of their actions to prevent abuse of
power.

6. *Validity:* Delegated legislation must adhere to the principles set out in the enabling act,
including procedural fairness, consistency with the parent legislation, and compliance with
constitutional limits.

7. *Review:* It is subject to judicial review to ensure legality, reasonableness, and

conformity with the constitution and other legal standards.

8. *Amendment and Repeal:* Delegated legislation can be amended, revoked, or repealed

by the same authority that enacted it or by the legislature, providing for adaptability and
responsiveness to changing circumstances.

SCOPE OF ADMINISTRATIVE LAW

The scope of delegated administration refers to

1. *Policy Implementation:* Delegated administration involves the implementation of

policies and laws enacted by the legislature. This includes interpreting and applying the law,
making decisions, and taking actions to achieve the legislative objectives.

2. *Regulatory Functions:* Administrative agencies are often tasked with regulatory

functions such as issuing permits, licenses, and approvals; setting standards and guidelines;
conducting inspections and enforcement activities; and imposing sanctions for non-
compliance.

3. *Discretionary Powers:* Delegated administration grants agencies discretionary powers

to make decisions based on their expertise and judgment within the framework of the law.
This may include granting exemptions, waivers, or variances in certain situations.

4. *Rulemaking Authority:* Administrative agencies have the authority to make rules and
regulations that provide detailed requirements, procedures, and standards for compliance
with the law. These rules have the force of law and are enforceable.

5. *Adjudicatory Functions:* Some administrative bodies also have quasi-judicial functions,

such as conducting hearings, adjudicating disputes, issuing rulings, and resolving legal
conflicts within their designated areas of authority.

6. *Monitoring and Evaluation:* Delegated administration includes monitoring and

evaluating compliance with regulations, assessing the effectiveness of policies, collecting
data and information, and making recommendations for improvements or revisions to the
law.
7. *Interagency Coordination:* In complex regulatory environments, administrative
agencies may collaborate with other agencies, departments, or levels of government to
ensure consistency, coordination, and cooperation in policy implementation and
enforcement.

8. *Public Engagement:* Delegated administration often involves engaging stakeholders,

such as businesses, organizations, communities, and the public, through consultations,
hearings, feedback mechanisms, and transparency measures to enhance accountability and
legitimacy.
UNIT 2 OF ADMINISTRATIVE LAW

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

Grounds of Judicial Control; Principles of Natural Justice; Administrative Discretion and its
Control; Writ Jurisdiction of High Court's and Supreme Court: Habeas Corpus, Mandamus,
Certiorari, Prohibition and Quo-warranto Writs; Judicial Responses; Power of Judicial
Review: Grounds and Scope; Jurisdictional Error/Ultra Vires, Abuse and Non-Exercise
Jurisdiction, Error Apparent on the Face of the Record; Violation of Principles of Natural
Justice: Rule Against Bias (Nemo Judex In Causa Sua); Audi Alteram Partem (or Audiatur Et
Altera Pars) Right to Consult a Lawyer, Reasoned and Speaking Decision;

GROUNDS OF JUDICIAL CONTROL

1.Lack of jurisdiction:
When any public official or administrative authority acts over and beyond its jurisdiction,
the court has the power to declare such an act to be ultra vires. For instance- In an
organization, a particular authority is vested with the power to take certain decisions or
actions and any authority other than the competent authority exercises such power of
decision making then one can seek court's intervention under the provision of jurisdictional
error.

2.Irrationality:
The general principle is that the powers conferred by administrative authorities are
exercised reasonably. But if an administrative authority gives a decision that overrides the
moral standards of the society and is such that which is absent under law then a such
decision can be held to be unreasonable. This can also be called misfeasance in law.

The concept of irrationality as a ground for judicial control was established through the
case law Associated Provincial Picture House vs. Wednesbury (1947). This case is also
known as the Wednesbury test as the court laid down three tests to determine whether or
not a court has the right to intervene on the basis of irrationality:
If the defendant has not taken into consideration any fact which was to be taken into
consideration.
If the defendant has taken into consideration any fact was which was not to be taken into
consideration.
If the decision is such that any reasonable authority would not have taken into
consideration of imposition of such decision after reasonable application of mind.
The court also stated that any court could not intervene simply on the ground of
disagreement.

3.Procedural Impropriety:
It means the failure of an administrative authority to comply with the laid rules and
procedures or the common law. In the case of procedural impropriety, the judiciary has the
power to intervene even if the principles of natural justice are not denied. Under the case
of Council of civil service unions vs. Minister for the civil service Lord Diplock considered
procedural impropriety as one of the heads to determine whether or not any
administrative action is subject to judicial intervention.

4.Proportionality:
It means that whatever action is taken by the administrative authority should be limited to
the proportion of the objective of the decision. Before upholding:
Irrationality:
This could also be referred to as "Wednesbury Unreasonableness". It applies to a decision
which is so outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided could have arrived
at it. Any action by an administrative authority it is necessary for the court to consider its
advantages as well as disadvantages.

5.Ultra Vires: This Latin term means "beyond the powers." Courts can review administrative
actions to ensure they fall within the scope of authority granted to the agency by the
legislature. If an administrative agency acts beyond its delegated authority, the court can
declare its actions void.
6.Procedural Irregularities: Courts scrutinize administrative procedures to ensure fairness,
transparency, and adherence to due process. This includes ensuring proper notice,
opportunity to be heard, and impartial decision-making.
7.Error of Law: Courts review administrative decisions to ensure they correctly interpret
and apply the law. If an administrative agency misinterprets a statute or applies it
incorrectly, the court can overturn the decision.
8.Error of Fact: Courts may intervene if there is evidence that the administrative decision is
based on a factual error or there is no substantial evidence to support the agency's
findings.

Forms Of Judicial Control Over Administration

1.Judicial Review
2.Statutory Appeal
3.Suits Against The Government
4.Criminal And Civil Suits Against Public Officials
5.Extraordinary Remedies

Judicial Review
Judicial review is one of the most significant powers of High courts and the Supreme court.
It is basic requirement of a developing civilization to protect and safeguard the rights of the
public by checking upon the administrative actions and their contitutionality as well as
legality.
This doctrine prevails in the countries where the constitution is considered as their
supreme law, for eg- USA, India, Australia etc. The power of courts to conduct judicial
review is restricted by constitution. However, the Legislature cannot exclude judicial review
if the administrative action is ultra vires to the constitution or harms public interest.
The doctrine of Judicial review was first established on February 24, 1803 by the U.S
Supreme Court in the case of Marbury vs. Madison when it declared an act of legislative
(congress) unconstitutional.

Following Are The Mechanisms Of Judicial Review:

Judicial Review Of Legislative Actions.
Judicial Review Of Judicial Decision.
Judicial Review Of Administrative Action.

In the cases of Keshvananda Bharti, Chandra Kumar vs. UOI judicial review was held to be
necessary and was declared to be an essential and integral part of the Indian Constitution.

In Sri Sankari Prasad Singh Deo vs Union Of India, the first amendment act of 1951 was
challenged but the Apex court rejected the contention by conceding absolute powers to the
parliament to amend the constitution.

In the landmark case of Golaknath v. State of Punjab "The supreme court reversed its
decision as it observed that Article 368 does not provide the power to amend the
constitution."

Statutory Appeal
The statutes and laws made by the legislature themselves provide for seeking judicial
intervention in case of any grief or harm. The aggrieved party has the right to appeal to a
higher administrative tribunal than the original decision-making tribunal. For instance, any
person aggrieved by the decision of a session court can appeal to the high court for
intervention. The apex court or the supreme court is the highest court and hence, no right
to appeal lies against its decisions.

Suits Against The Government

There are certain limitations with regard to constituting suits against the government. The
liability of the government under the contract law is similar to that of the citizens subject to
the limitations which can be regulated by the parliament under the constitution. However,
the government is liable for only those acts of their officials for which they are answerable.
The government can be held liable for the actions of its officials in regard to non-sovereign
functions only.

Civil And Criminal Suits Against Public Officials

The laws related to civil and criminal proceedings against public official's acts vary from
country to country. In India, the code of criminal procedure creates the personal liability of
public officials for the acts done by them in such capacity and allows suits to be filed
against such acts with two months prior notice. However, certain authorities except the
ministers are immune to such civil suits such as the President and the governor. In Britain,
the monarch and in the USA the president is immune from such legal proceedings.

Extraordinary Remedies
Apart from the abovementioned types of judicial controls, the Indian constitution provides
a few additional remedies by way of the writs under Article 13 and Article 226. The court
has discretionary powers to provide these remedies except the writ of habeas corpus when
no other remedy is available.

These writs are issued by the supreme court in order to protect only the fundamental rights
of the citizens but the High court is empowered to issue these writs for the protection of
other rights also. The writ of injunction is not specifically provided under the Indian
constitution but yet it is provided as a remedy by the supreme court. The writ of injunction
is of two types- preventive and mandatory. The mandatory writ is somehow similar to the
writ of mandamus and the preventive is similar to that of prohibition. The writ of injunction
is issued against executive authorities.

The Remedies By Way Of Writs Are As Follows:

Habeas corpus:
It is derived form a Latin term which means "you may have the body". It is used to secure a
person who is unlawfully or illegally detained. Through this writ the Supreme Court or the
High Court can order another person who has unlawfully detained another person, to
present the body of the latter before the court. The court requires the detaining person to
provide valid ground for detention and if he fails to do so then the person who was
detained will be released by the court. This writ can be issued against both public and
private authorities.

Court shall have powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for any other
purpose.

In the case of Ichhu Devi v. Union of India the Supreme Court held that even an application
through postcard by any pro bono publico will be considered for order to issue writ of
habeas corpus.

Mandamus:
It is an order by the Supreme Court and High court to lower or subordinate courts, tribunals
or public authorities. This writ can be issued to any government, court, corporation or
public authority, if they fail to do their respective duties. In the case of John Paily & Ors. v.
State of Kerala the Supreme Court held that the court cannot direct any state legislature to
establish a tribunal by issuing the writ of mandamus. The petition cannot be entertained
and was dismissed.

Quo Warranto:
This writ is issued against a private individual when he assumes office of a public servant on
which he has no right. The power to issue this writ is discretionary and it's up to the
discretion of the court whether to issue this writ or not. This writ can only be issued when a
substantive public office is involved and can't be issued against private or ministerial offices.
In the case of Niranjan Kumar Goenka v. The University of Bihar, Muzzafarpur the court
observed that the writ of quo warranto cannot be issued if the person is not holding the
public office.

Certiorari:
It is issued by a superior court to the inferior courts. It is corrective in nature and its work is
to correct the errors. It is issued when there is excess of jurisdiction to the inferior court or
the superior court wants to decide a matter himself in any case.

In the case of A.K. Kraipak v. Union of India The Supreme Court laid down the distinction
between quasi-judicial authorities and administrative authority. The Supreme Court
quashed the decision by issuing the writ of certiorari.

Prohibition:
This writ is not issued often and it is an extraordinary remedy which the superior court
issues to an inferior court or tribunal for stopping them to decide a case as they have no
jurisdiction. If the court or tribunal does not have a jurisdiction and still decides the case,
the decision will be invalid because for an act to be legal it must have sanction of law. This
writ can only be issued against judicial and quasi-judicial authorities.

In the case of Prudential Capital Markets v. State of A.P. and Others the question that was
raised was that "can the writ of prohibition be issued against district forums/state
commissions which had already passed the judgement regarding consumer cases?" The
court held that after the execution of the order, the writ of prohibition cannot be issued
and neither the judgement can be stopped nor prevented.

Recent Case Laws Related To Judicial Control

In the recent case of Azizur Rahaman vs. The state of WB & ors. The Calcutta High Court
held that the judiciary's power of judicial review is to check upon the legality and the
constitutionality of the administrative act and not the wisdom or soundness of such act.
The judiciary will only exercise its powers if the acts is completely arbitrary or for personal
gains or affects the interest of public.

The Supreme Court in the case of I.R. Coelho (Dead) By Lrs v. State of Tamil Nadu & Ors.,
held that laws that are added to the 9 th schedule of the constitution by way of
amendments after April 24, 1973 can be amended if they are ultra vires of the Constitution.
*PRINCIPAL OF NATURAL JUSTICE*
Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law and it is
closely related to Common law and moral principles but is not codified. It is a law of nature
which is not derived from any statute or constitution. The principle of natural justice is adhered
to by all the citizens of civilised State with Supreme importance. In the ancient days of fair
practice, at the time when industrial areas ruled with a harsh and rigid law to hire and fire, the
Supreme court gave its command with the passage of duration and establishment of social,
justice and economy statutory protection for the workmen.

Purpose of the principle

 To provide equal opportunity of being heard.

 Concept of Fairness.
 To fulfil the gaps and loopholes of the law.
 To protect the Fundamental Rights.
 Basic features of the Constitution.
 No miscarriage of Justice.

Rules of Natural Justice

 NEMO JUDEX IN CAUSA SUA

 AUDI ALTERAM PARTEM
 REASONED DECISION

Nemo Judex In Causa Sua

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

Type of Bias
1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

Personal bias

Personal bias arises from a relation between the party and deciding authority. Which lead the
deciding authority in a doubtful situation to make an unfair activity and give judgement in
favour of his person. Such equations arise due to various forms of personal and professional
relations.
In order to challenge the administrative action successfully on the ground of personal bias, it is
necessary to give a reasonable reason for bias.

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

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

Pecuniary bias

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

Subject matter bias

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

Departmental bias

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

Policy notion bias

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

Bias on the account of the obstinacy

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

Audi Alteram Partem

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

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

The literal meaning of this rule is that both parties should be given a fair chance to present
themselves with their relevant points and a fair trial should be conducted.This is an important
rule of natural justice and its pure form is not to penalize anyone without any valid and
reasonable ground. Prior notice should be given to a person so he can prepare to know what all
charges are framed against him. It is also known as a rule of fair hearing. The components of
fair hearing are not fixed or rigid in nature. It varies from case to case and authority to
authority.

Components

Issuance of notice– Valid and proper notice should be given to the required parties of the
matter to further proceed with the procedure of fair trial method. Even if the statute does not
include the provision of issue of notice then it will be given prior to making decisions. This was
held in the case of Fazalbhai vs. custodian.

In the case of Kanda vs. Government of Malaya, the court held that notice must directly and
clearly specify on the matter of bias, facts and circumstances against which needs to be taken.
It’s one of the rights of the individual to defend himself so he should be familiar with the
relevant matter so he may contradict the statement and safeguard himself.The notice should be
with regard to the charges framed against the accused person and proceeding to be held. He
can only be punished on the charges which are mentioned in the notice, not for any other
charges.

Right to present the case and evidence– After receiving the notice he must be given a
reasonable time period to prepare and present his case in a real and effective manner. The
refusal should not be done on the unreasonable ground or due to arbitrary.

Right to Cross Examination– Right of fair hearing includes the right to cross-examination the
statement made by the parties. If tribunals denied the right to cross-examination then it will
violate the principles of natural justice. And all the necessary copies of documents should be
given and failure of that will also encroach the principle. The department should make available
officers who are involved in the procedure of investigating and do cross-examination. Cross-
examination is defined under Section 137 of the Indian Evidence Act, 1872 (amended).

In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath
Mishra vs. Rajendra Medical College, under this case a male student was charged off some
indecent behaviour towards a female student. So, here the right to cross-examination was
denied for the male student as it will lead to embracement for the female student and it will not
also lead to violation of natural justice.

Right of Legal representative– In the process of enquiry, every party has the right to have a
legal representative. Each party will be presented by the legally trained person and no one can
deny (A.K.Roy). Similarly, the department has the same right to direct its officer even though
there are investigating officer in conducting an adjudicating proceeding (Sanghi textile
processor vs. Commissioner).
Reasoned Decision

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

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

POWER OF JUDICIAL REVIEW

Grounds of Judicial Control; Principles of Natural Justice; Administrative Discretion
and its Control; Writ Jurisdiction of High Court's and Supreme Court: Habeas Corpus,
Mandamus, Certiorari, Prohibition and Quo-warranto Writs; Judicial Responses;
Power of Judicial Review: Grounds and Scope; Jurisdictional Error/Ultra Vires, Abuse
and Non-Exercise Jurisdiction, Error Apparent on the Face of the Record; Violation of
Principles of Natural Justice: Rule Against Bias (Nemo Judex In Causa Sua); Audi
Alteram Partem (or Audiatur Et Altera Pars) Right to Consult a Lawyer, Reasoned and
Speaking Decision;