Emerging Trends in Administrative Law : Prof. S.S. Vishweshwaraiah

EMERGING TRENDS IN ADMINISTRATIVE LAW*
Prof. S.S. Vishweshwaraiah**
Administrative law is basically concerned with the powers of

administrative authorities, the extent of such powers, the procedures
prescribed for the exercise of such powers, the remedies available to the
aggrieved citizens when such powers are abused or misused. Broadly
speaking, the actions and at times, the non-actions of administrative bodies
are impugned in Judicial Review Proceedings. Administrative action includes
rule-making, adjudication inquiry, inspection, supervision, imposition of
conditions while granting leases, licences, to mention a few. Non-action
relates to non-performance of a statutory duty.
With the advent of LPG, we have often heard pleas for deregulation,
dereservation, abolition of permits and licences and the necessary freedom
and independence for enterpreneurs to engage effectively in their economic
activities in an open market economy. Do all these suggest or indicate that
administrative action would be minimal in nature in the future and market
forces would determine what shall be or shall not be done or undertaken. To
answer this question, we should advert to our Constitution and its commands.
Lecture delivered as a Resource Person at the National Law School of India

University, Bangalore to the I.A.S. Officers on July 26th, 2004.
** B.Sc., LL.M., (S.J.D.) (Northwestern, U.S.A.) Formerly, Professor, Chairman and

Dean, Faculty of Law, Karnatak University, Dharwad, Karnataka.
Justice Krishna Iyer has averred that the signature tune or the ideological
signature of our constitution is Social Justice. Here, the Preamble to the
Constitution and Directive Principles, in Part IV, need be referred to.
According to Prof. Upendra Baxi, a Constitution cannot be a rigid, static
document. It has to look to the future and should not archive the dead past.
It should be a life-giving force and not a death-bestowing entity. Further, our
Apex Court has observed; A constitutional provision is never static, it is everevolving and ever-changing and therefore, does not admit of a narrow,
pedantic or syllogistic approach. Secretary Ministry of I & B v. Cricket
Association, Bengal, AIR 1995 S.C. 1236, at 1250.
If the protective umbrella of the Constitution has to be unfurled to

protect and secure the interests and rights of the exploitable workers, women
and children, gullible investors, uninformed and indebted consumers and
citizens against activities resulting in environmental degradation, then state
control over numerous activities in our society would be indispensable.
With the fore-going preface, we may now take a look at the Emerging
Trends in Administrative Law.
1. In the area of Delegated Legislation, the central injunction of the Apex

Court that the legislature cannot delegate its essential legislative function
still holds the field despite the demonstrable judicial acquiescence in the
delegation of rule-making power in very broad terms. So, when the
delegation is excessive and the delegating statute prescribes no norms or

standards, the reviewing Court may strike the statute down on the ground
of abdication of essential legislative function E.g. Avinder Singh v. State
of Punjab, AIR 1979 S.C. 321; A.N. Parasuraman v. Tamil Nadu, (1989)4
SCC 683.
Excessive Delegation of legislative power paving way for discrimination

exercises can now be assailed on the group that it offends the Equality
Doctrine under Act 14.
Illustration :
Law enacted to revise pension for judges and the parent law leaving it
to the discretion of the states to fix the dates on which the revised pension
scheme becomes effective.
It should be noted that the rules, regulations, etc., issued by the

administrative authority in the exercise of its subordinate law-making power
should supplement the parent law through filling details. They can never
supplant the delegating statute. St. Johns Teachers Training Institute v.
Regional Director, National Council for Teachers Education, (2003) 2ACE
249.
2.
The dividing line between administrative function and quasi-judicial

function has been almost obliterated in the light of Kraipak v. Union of
India, AIR, 1970 S.C. 150. The Supreme Court has expanded the frontier
of Natural Justice by insisting that fair play in action must be manifest in
administrative action also. Thus, in Maneka Gandhi, AIR, 1978, the
Supreme Court has ruled that since the aim of both administrative and
quasi-judicial inquiry is to arrive at a just decision and if a rule of natural
justice is calculated to secure justice or to prevent miscarriage of
justice it is difficult to see why it should be applicable to quasi-judicial
inquiry and not to administrative inquiry. It must apply logically to both.
See Style (Dress Land) v. Union Territory, Chandigarh, (1999) 7SCC 89,
at 99.
It is now well-established that any administrative action which involves

civil consequences must be made in consonance with the principles of
natural justice. Further, right to counsel, right to reasoned decision, and
the Doctrine of Legitimate Expectation have been injected into the
concept of Natural Justice.
3.
The Doctrine of ultravires evolved a as technique of Judicial review to

ensure that administrative authorities do not transgress their statutorily
ordained limits stands affected, at times, through the development of the
Doctrine of Promissory Estoppel. Thus, an administrative authority in the
exercise of discretion may give an assurance that it would not impose
Sales Tax on a particular group of persons. It may turn out that such an
assurance is without statutory authority. But, in equity, the persons who
have acted upon the assurance to their prejudice cannot be left in the
lurch. If the Court rules that the administrative is estopped from going
back on its assurances, the ultravires Doctrine is eclipsed, Motilal
Padampat Sugar Mills, AIR 1979, S.C. 621: Cf, Jit Ram Shiv Kumar v.
Haryana, AIR, 1980, S.C. 1285. It should, however, be pointed out that in
Jit Ram, the apex court has laid down, inter alia, the following principles:
i.
Estoppel plea not available to prevent the government from

discharging its statutory functions.
ii.
When the public servant acts outside its statutory authority, Estoppel
Plea would not be available.
iii.
However, if the public servant, while acting within its authority, enters
into an agreement, makes a representation, the Court can command
it to abide by the agreement when the party acting on the promise or
representation has got into a disadvantageous position.
iv.
On grounds of General interests of the state, public servants can

alter conditions which may prejudicially affect persons or groups.
4.
The locus-standi rule has been liberalised with the advent of Public
interest Litigation. The Supreme Court has reiterated that in the case of
Public Interest Litigation, it is not necessary that the petitioner should
himself have a personal interest in the matter E.g. M/s J. Mohapatra &
Co., v. Orissa, AIR, 1984, S.C. 1572.
5.
A new Judicial trend is discernible in decisions bearing upon deprivation

of personal liberty. The Court has awarded compensation to persons
suffering bodily harm at the hands of the police or detained or imprisoned
without the authority of law. See, Khatri v. Bihar, (the Bhagalpur Blinding
Case, A.I.R. 1981 S.C. 1068 ; Rudul Shaw v. Bihar, A.I.R. 1983 S.C.
1086 Sebstain Hangray v. India, A.I.R. 1984 S.C. 1026.
The Supreme Court has, in Nelabati Behera v. State of Orissa, A.I.R.

1993 S.C. 746, observed : The citizen complaining of the infringement of
an indefeasible right under article 21 of the Constitution cannot be told
that for the established violation of the fundamental right to life he cannot
get any relief under the public law by the courts exercising writ
jurisdiction. However, in Rabindra Nath Ghosal, v. University of Calcutta,
(2002)4 SJC 505, while declaring that the above proposition of law is not
disputed, the Supreme Court has observed : It would not be correct to
assume that every minor infraction of public duty by every public officer
would commend the Court to grant compensation in a petition under
Articles 226 and 32 by applying the public law proceeding. The Court in
exercise of extraordinary power under Article 226 and 32 of the
Constitution, therefore, would not award damages against public
authorities merely because they have made some order which turns out
to be ultravires, or there has been some inaction in the performance of
the duties unless there is malice or conscious abuse. Before exemplary
damages can be awarded, it must be shown that some fundamental right
under Article 21 has been infringed by arbitrary or capricious action on the
part of the public functionaries and that the sufferer was a helpless victim
of the act.
6.
Judiciary, with a view to promote good governance and fair-dealing in

governments actions involving distribution of largesse, has emphasised
that the governments procedure should be transparent, just, fair and nonarbitrary.
Further, state cannot act as it pleases in the matter of giving largesse, like
awarding contracts, selling or leasing out its property. Contractual power
conferred on the government should be exercised properly, reasonably
and in a principled manner. The public authority must bear in mind the
public good and be guided by public interest.
M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, 496;
R.D. Shetty v. International Airport Authority, AIR 1979 SC 1036.
However, the Apex Courts observation in Tata Cellular v. India, (1996) 6
SCC 651 that Fair play in action in public matters is an essential element;
(also), fair play in joints of the administrative authority is also necessary,
may become an established norm in review proceedings.
7.
Transparency in administrative action would dissuade the Court to annul it

when challenged. Common Cause v. India, (1996) 6 SCC 530
(Governments procedures should be transparent, just, fair and nonarbitrary.
8.
It is possible that our Courts may emulate the English Decisions and
award exemplary damages against public servants who have improperly
exercised their power to search or arrest without warrant or on account of
their arbitrary, outrageous and malafide exercise of public power or
malicious, deliberate, injurious wrong doing. See Lucknow Development
Authority v. M.K. Gupta, (1994) 1 SCC 243 (Judicial recognition of
misfeasance in public office as a part of the Law of Tort)

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EMERGING TRENDS IN ADMINISTRATIVE LAW*

Prof. S.S. Vishweshwaraiah**

Administrative law is basically concerned with the powers of

Lecture delivered as a Resource Person at the National Law School of India

** B.Sc., LL.M., (S.J.D.) (Northwestern, U.S.A.) Formerly, Professor, Chairman and

If the protective umbrella of the Constitution has to be unfurled to

1. In the area of Delegated Legislation, the central injunction of the Apex

delegation is excessive and the delegating statute prescribes no norms or

Excessive Delegation of legislative power paving way for discrimination

It should be noted that the rules, regulations, etc., issued by the

The dividing line between administrative function and quasi-judicial

It is now well-established that any administrative action which involves

The Doctrine of ultravires evolved a as technique of Judicial review to

Estoppel plea not available to prevent the government from

On grounds of General interests of the state, public servants can

A new Judicial trend is discernible in decisions bearing upon deprivation

The Supreme Court has, in Nelabati Behera v. State of Orissa, A.I.R.

Judiciary, with a view to promote good governance and fair-dealing in

Transparency in administrative action would dissuade the Court to annul it

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