Earlier Administrative law was considered to be a part of the constitutional law.

It is a
complex and fast-growing discipline. It is a judge made law. It is a juristic science; it
develops certain procedures and principles by which we can judge the validity of decision of
the administration.
It is a branch of public law; it regulates the relationship between state and citizens. Its main
aim is to enforce fairness and justice. It is an anti-authoritarian law which gives citizens the
right to the citizens to raise grievances against arbitrary state actions.
In India we have no administrative procedure code so it is difficult to find out how do we
proceed. In US there us an administrative court which clearly lays down the procedure. In
UK there is also administrative law courts and procedural law for administrative law. In India
everything is left to the administrative authorities. Hence, we bring a variety of procedure
sometimes the authorities are given power to develop their own procedure for Eg- NHRC.
However, when there is no procedure laid down by the authority there are several procedural
safeguards sometimes the administrative authorities have to follow the same procedure like as
courts. Where administrative actions are incorrect, how to challenge them and where to
challenge them.
What we are supposed to cover in this semester
A. INTRODUCTION
1. How do you define Admin Law we try to describe it instead of defining it
2. Purpose, Scope and Assumptions of Admin Law
3. What is the inference between constitutional law and administration law, earlier it
was studied as the part of constitutional law but now administration process has
grown so much that it is studied as another subject. Constitution deals with the
government at rest while admin law deals with it in motion.
4. Conceptual objections against the growth of administrative law. Earlier in the
Victorian era the govt. was only concerned with maintaining law and order and
security however now the govt is breathing on the neck of all people and is interfering
with almost all aspects of life of an individual. Govt has started to act as the provider,
regulator and businessmen hence the people become apprehensive. Now govt. is
acting as a monarch and is jeopardising with our freedoms. By the growth of
administrative process the, rule of law and separation of powers is violated. Due to
these arguments the administrative growth was halted however the people soon
realised that in a democracy the state has to interfere but now there has to be checks
and balances to the exercise of power.
5. Administrative law is used in different sense. For example, if there is dispute between
individual and administration in France, it will be decided by administrative courts
and there they will be governed by the council de etat, why it was not adopted by
India
B.
Now when we are using the word administration, we have to know we are referring to
what?
Administration exercises law-making power (quasi-legislative, derivative legislation),
judicial (quasi-judicial powers) all the residual powers.
 C. DELEGATED POWERS
1. The law by which we are mainly governed is not coming from parliamentary
legislation but from the administrative legislations
2. What is the meaning of delegated legislation
3. What extent the powers can be delegated
4. Constitutionality of Delegation
5. Two limitations. The statute from which the delegation is done.(enabling law)
(laying provision). Constitutional control. Procedural safeguards. In Re Delhi
Laws Act, is considered to be bible of delegated legislation.
D. PRINCIPLE OF NATURAL JUSTICE
The Principles of Natural Justice and the Procedural Safeguards. In India, almost 80 % of the
cases relating to the administrative law cases are related to natural justice.
In US there is Administrative Law Act. In England there is Tribunal and
enforcementAct,2007.
In civil law, the phrase used is proportionality. In U.S the word used is due process.
In which situation the principles of natural justice will prevail. Whenever a person suffers
from a civil wrong or any decision pre-judicial to a person is taken or any legitimate
expectation() is not given to him. Two principles
1. Nemo judex causa sua – rule against bias – no person should be made judge in his
own cause.
2. Audi alteram partem- a person should be given a fair hearing if any decision
prejudicial is taken against him. The pre and post decisional hearing. Sometimes the
fairness demands that no hearing should be given. If the person is to be arrested then
his passport is to be impounded without any pre-hearing so as to make sure he does
not escape.
3. The decisions of authorities should be reasoned. The rule of speaking orders- there are
some circumstances where not giving reasons is fair. If a person is found guilty of
indecent assault on female student then not giving reasons is fairer. In England , the
reasons are given only if demanded. In India it is given mostly so as to make judicial
review possible.(if one person hears and other person gives decision. Disciplinary
Committee prepares file and head gives the decision based on the file provided)
If the principles of natural justice are not attracted in some cases for fairness to take place.
Exclusion in cases of emergency, exclusion in cases of impractibility, Exception of
confidentiality, exclusion in cases of preventive detention. In cases of contractual obligations
it is not necessary to give hearing and in some cases the hearing may be useless formality.
(there are 11 exceptions).
The University calls usually 3 persons for interview but in a certain year it calls only 2 then
the legitimate expectation of one person is taken away.
E. ADMINISTRATIVE DISCRETION (SUBJECTIVELY WORDED POWERS)
Administrative discretion is a necessary evil. Administration cannot discharge its function if
there are not given an area which they can manoeuvre to give discretionary powers. It is a no
rule area and hence it is likely to be misused. It is one such factor which is pushing the
country to a failed state.
Monopoly + Discretion – Accountability = Corruption
It is usually given by wide and vague wording of a statute which gives wide powers to the
administrator. It can be controlled. Constitution says that executive can appoint the head of
UPSC as per their discretion. In such case administrative comes into play in order to make
sure that the power is exercised reasonably.
F. JUDICIAL REVIEW OF ADMINITRATIVE ACTIONS
If the appellate system is exhausted then you can approach the HC under Article 226 , Article
32 (in case of a fundamental right).
1. Locus standi
2. Doctrine of Latches
3. Res Judicata
4. Political/ Policy Discretions
5. The legality, irrationality and procedural impropriety and proportionality,
Wednesbury rule
6. The Finality clause- The action by the administrative authority is final and in India the
concept of Judicial review is a basic feature hence this finality clause is inapplicable
in India.

G. CITIZENS AND ADMINISTRATIVE LAW

If there is so much interference of the administrative actions and there are so many
disputes in the courts are there any other alternatives
1. Ombudsman
2. Evolution from Sweden
3. Evolution in India- Administrative Reform Committee referred it to check corruption
and also to give relief. The govt prepared a bill and in 1968 the bill was introduced
but the bill lapsed and thereafter 12 attempts again failed but in 2014 the Lokayukta
Bill passed after Anna Hazare Movement 2011. But he has not started functioning yet,
because the govt has not given the concurrence. Is the PM under the purview of
lokayukta.

H. TRIBUNALS
1. Why were they conceptualised?
2. How they are controlled by the executive
3. In UK the tribunals were incorporated into the judicial system

I. GLOBAL LEVEL ADMINISTRATION

Q1. HOW DID THE ADMINISTRATIVE LAW COME INTO PLACE?
French System was among the first countries to develop the system of Admonistrative law.
The English law and Common Law system did not support the Administrative law because
they were of the view that how can a system which is managed by the Administration give
justice to the citizens against administration.
In India, the government was very eager to weed out inequality and poverty in the society so
the administration grew very rapidly. Soon the problems related to ineffective disposal of
complaints against administration and the need for administrative law grew. From the time
after liberalisation the need for regulation of private corporates.
THE FIVE FUNCTIONS OF ADMIN LAW
1. What sought of powers will the administration exercise
2. What will be the limits of the powers of Administrative Powers?
3. What will be the procedure of Administrative authorities?
4. In what ways the administrative authorities exercising their powers ca be kept within
their limits?
5. What legal Remedies are available against the misuse of administrative power.?
THE ASSUMPTIONS OF ADMINISTRATIVE LAW
1. No power which is given to administrative authorities can be unlimited
2. Every administrative is a public trust- No administrative can act in an arbitrary
manner and it must be discharged in the best interest of the public.
3. Every power can be misused therefore administrative law is there to make sure that
the power is exercised in the best interest of all.
THE OBJECTIVES OF ADMIN LAW
1. To check the abuse of power and to make sure that the administrative authorities
function within their limitations laid down in the law
2. To ensure impartial disposal of disputes. (What is the composition of the commission,
what is the character of the commission)
3. To protect the rights and entitlements by the middle class.
Cellular Operators Association v. TRAI
We would exhort Parliament to take up this issue and frame a legislation along the lines of
the U.S. Administrative Procedure Act (with certain well defined exceptions) by which all
subordinate legislation is subject to a transparent process by which due consultations with
all stakeholders are held, and the rule or regulation making power is exercised after due
consideration of all stakeholders’ submissions, together with an explanatory memorandum
which broadly takes into account what they have said and the reasons for agreeing or
disagreeing with them.
What is meant by Administrative action?
1. Quasi Legislative action
2. Quasi-Judicial Action
3. Administrative Action
Among this gamut if you take out take out legislative action and judicial action what is
left is administrative action.
 Administrative law is said to be the most important invention of 21 st century because a
good society will collapse under its own weight because the people will not be able to
assert their rights against the administration.

Nature of Administrative Law

1. It is an insecure science. It deals with contextuality: in what context an action is being
taken. Therefore, the application of principles of administrative law differs in every
case. It is done so that justice is done fairly in individual case. Administrative law
brings the law nearer to the lifeline of the people.
2. Administrative law does not belong to the area of philosophy of law but to the
sociology of law: constitutional law belongs to the philosophy of law area. Philosophy
of law: we deal with the law as a metaphysical concept, we take into account whole
cosmos of law and then try of develop certain fundamental principles out of it which
are universal and then we try to apply them in the administration of society. Sociology
of law: we emphasis justice to the individual. We emphasize rule of law and fairness,
reasonableness and justness. It tries to solve the problem of the people which the
people daily face while dealing with the administration.
3. Administrative is not logic but is experience. This is not merely argumentative, we
don’t believe on syllogistic thinking, we believe in helping the people in their dealings
with administration. It is people centric.
4. Administrative law cannot be divorced from socio-economic and political realities of
the society.

Approaches of Administrative Law

1. Circumscriptive approach [Red light approach]: administration having legislative,

judicial and executive power emerged as new monarchs. Give as less power as
possible. Circumscribe their power and it must be clearly identified and limits must be
laid down. If this is not done, the rights and liberties of people are at a great risk. It
was after the death of Victorian Golden Era of lassiez faire system. The idea was
analytical positivism and they believed that they should give administrative
2. Prescriptive approach [Green light approach]: when states became welfare states,
people started demanding that the give the administrators as much power as they
need. Because it is necessary for properly executing the socio-economic programmes
which are going to benefit the disadvantages sections of the society. Hand in hand,
provide control mechanism. It is presently followed approach, mainly in developing
countries.
3. Amber Like Approach- In certain area where it is a matter of social justice then green
light approach should be chosen but where the administration but where the
fundamental rights are curtailed by administrative action then red light approach
should be resorted to . In this
What are the commonalities between Administrative Law and Constitutional Law?
 1. Both of these has the same objective establishing a government which is accountable
and should have values to abide by.
2. Both of these have identical mandate. Both aim service to the people both think that
the power of the administrative should be limited and not misused.
3. Both has the same trajectory. Both deal with the executive legislature judiciary and
the rights of the people’
4. Both have identical horizons which are democracy, socialism, secularism, Dignity of
an Individual, Fraternity and etc.
Though, in UK where there is no written constitution the line is blurred but there are
differences. In judicial systems which have a written constitution.
What are the differences between administrative law and Constitutional Law
1. Constitutional law deals with govt. at rest and the administrative law deals with the
govt in motion we are not concerned that how the ministers are appointed but where
he takes any decision then the administrative law comes in motion.
2. Constitutional Law deals with who governs and the admin law deals with how
governs. Con Law deals with who is appointed and how is majority in the parliament
constituted.
3. Con law is anti-majoritarian and administration law is anti-authoritarian. Democracy
is not a majoritarian concept it is that what the majority decides and if it is
constitutionally sustainable (Will of the people subject to the constitutional
limitations). Admin law is anti-authoritarian that when administration takes decision
then it has to be fairly and reasonably exercised.
4. Constitutional Law is the source of governance and the admin law is the delivery
mechanism of the policy and programmes.
5. Constitutional law is a value laden document with a political theory While the
administration law is value neutral. In administration law is concerned only with the
whether the administrative officer is functioning fairly and reasonably.
6. Constitution was a product of revolution (French Constitution) it may be a product of
gradualism (British Constitution) a constitution may be a product of assignment
Constitution can be a product of compromise (US Constitution was a product of
compromise between Southern States and Northern States.) Constitution may be
product of consensus (Indian Constitution). Administrative law always has to be the
product of evolution and gradualism
7. Constitutional law is a grundnorm while administrative law is a norm. Administrative
law derives its validity from the Constitution.
8. Constitution is descriptive and administrative law is prescriptive. Constitution is
usually general in nature and in open-texture. Indian Constitution is unlike US
constitution is visible. Indian Constitution floats on surface. Administrative deals with
details. Constitution is a reflection of rights and admin law is incrementation of the
rights. Take for E.g.-Right for Education is
9. Constitutional is inspirational and administrative law is aspirational. Con law lays
down the ideal society. While administration law is what the people actually want.
10. Constitutional law deals with constitutionality while admin law deals with legality.
11. Constitutional is “ought” while administrative law is “is”. Con Law lays down how
should society be while administration deals with how the society is.
Final conclusion is given by Whitmore and Benjamin. don’t waste time in differentiating the
two because both overlap and interlock. If one draws two circles, then at some point they
would overlap and this overlap is the area which is a watershed area. Therefore, a student of
administrative law and constitutional law must cover that overlapped area. Overlap: Judicial
control of administrative action [Articles 32,226,136, 227, 141, 300, 311]; Part III of the
Constitution: it imposes restrictions on the government and the administration; about
constitutional limits on the delegation of power [legislative and judicial] to the executive;
both have to study certain administrative authorities which are created under the constitution
[financial commission art 280, inter-state council 263, inter-state water dispute authority 202,
election commission 329, public service commission 315].
Definition of Administrative Law
Initially the role of the administration as limited, but after world wars, most of the states
became welfare state and it lead to the huge growth in the administrative process and it lead
to emergence of a separate branch. In continent, it was existing right from the time of French
revolution.
J. F. Port (1929, Administrative Law): Administrative law is made up of all legal rules either
formally expressed by statute or applied in prerogative [inherent power of the crown] which
have as their ultimate object the fulfilment of public law [purpose is to regulate the
relationship of the private individual with the administration]. There were certain limitations
on the inherent powers also.
A. V. Dicey: He has in mind the continental system of administrative system. It is a separate
portion of law. Administrative law is that portion of legal system which:
1. Determines the legal status and liabilities of the state officials
2. Defines the rights and liabilities of a private individual in their dealing with the public
officials
3. Which specifies the procedure by which those rights and liabilities are enforced.
K. C. Davis: administrative law concerns the powers and procedures of administrative
agencies including specially the law governing judicial review of administrative actions. He
put more emphasis on the procedure which the administrative authority follow. We, in the
common law, concerns more on the judicial review.
Prof. Endy Cott: administrative law includes a complex variety of processes and doctrines
that confer and control public power and impose rule of law [fairness, reasonableness and
justness] on public authorities.
Prof. Baxi: administrative law is a weapon in the hands of the middle classes to secure their
rights and entitlements against the administration.
Prof I P Massey: administrative law [it is a law in the realist sense of the term and not in the
lawyer sense of the term. Lawyer sense: law passed by the parliament and rules and
regulations formed by the administrative authorities. We include here: statute law, delegated
legislation; Judge made law; higher law, principles of natural justice, procedural fairness;
those particular things which are generally not considered a law, e.g. policy decision,
government memoranda, government resolutions, administrative directions; long customs and
traditions followed by the administrative authorities] is a branch of public law [public laws
deals with the disputes between private individuals when he is in conflict with a public
authority] which deals with the structure, powers and functions [how an administrative
authority has been constituted, what are the powers conferred, what functions the law
requires the administrative authority to perform. This is the focus of public administration] of
administrative and quasi-administrative authorities [1. Administrative authority which is
created by law; 2. Authorities which are created not by law but under the law e.g. authorities
registered under the societies act; authorities registered under the companies act] [quasi-
administrative authorities]; those authorities which are considered as State under Article 12
and something else as well; 3. Authorities which are agencies and authorities of the state,
they are not created by law but they are controlled by the government; 4. Private authorities
which are exercising public functions, e.g. BCCI] and prescribes principles and rules [for
good governance so that these authorities can perform their functions in a reasonable fair and
just manner. E.g. post-decisional hearing] by which administrative action [law making
action, adjudicatory actor, administrative action, purely administrative action. We are not
concerned about the rightness of the decision, we are concerned about the procedure] is
reached and thereafter controlled [by the higher administrative authorities, by the judiciary
[writ jurisdiction, original jurisdiction], informally by mass media, unions, civil societies,
quasi-administrative authorities such as ombudsman, Lokpal] in order to reconcile power
with liberty of the people [power of the administration which is likely to be misused. To
maintain a balance between power and rights of the subjects].

Administrative law is a chemotherapy for a cancerous administration: the administration

always tries to misuse power.
Administrative law deals with the pathology of power in a society and relates with the control
of government powers: what are the real state of exercise of power in a particular society
[pathology of power] e.g. arrogance of power, chaotic exercise of power, corruption,
factionalism, low performance of public institutions. Our emphasis in administrative law is
how to control this pathology.
There is a Syllogism: method of thinking: no power of an administrative authority is absolute.
Every power can be misused. Therefore, the conclusion is that every power is to be
controlled.
If the functions of the state can be divided into three: legislative, judicial and executive or
administrative, then administrative law deals with the administrative branch of the state. E.g.
judiciary and legislative powers also exercises administrative functions.
S Schwartz: administrative law is an equalizer between powerful administration and
disempowered citizens. If there is not a good administration, then even the most
economically advanced countries would collapse under its own weight.
Administrative law attempts to regulate administrative space national or international in order
to infuse fairness and accountability in the best interest of the individual in the society.
Administrative law is pervasive and covers an uncharted areas whenever there is an
allegation of misuse of power by the administrative.
Conceptual Objections Against the Growth of Administrative Process
When Administrative process started rising an army of administrative process began rising
and the state began taking maternalistic then the people began opposing the administration
and called it despotic and absolutist because of their wide powers. The people were very
concerned about their liberties. Hence, they used “rule of law” as a weapon against the
administration.
While in USA, states were very concerned about their independence. They wanted federal
government to be weak and states to be strong. They wanted federal to be limited to
protection from external aggression. They used “separation of power” as a tool to oppose
administration. They said that in administration all three powers are included in one organ.
Hence it was against the strict separation of power.
In this topic we will analyse these objections and figure out if they are correct.
Rule Of Law
The theory of Rule of Law of AV Dicey. He was called to give two lectures in Oxford one
was called the supremacy of Parliament in this lecture he told that there was no Judicial
Review to the powers of Parliament. The supremacy of Parliament had many problems and
hence several nations did not follow it. If the legislature is representative of people then the
country will turn into majoritarianism if there powers are not subjected to constitutional
limitations.
AV Dicey was thinking in the context of France, he thought that what is the reason why
French are not able to enjoy their freedoms and English people are enjoying it. He said that
English people are able to enjoy their freedoms because they have rule of law. Rule of Law is
the conceptual abstraction and therefore difficult to define.
Rule by law and rule of law are different. The previous means that you are governed by any
law which is legislated by the parliament. But Rule of Law means
Origin of the concept dates to France, there was a concept of “Principle de legalite” it meant
that law should be based on some principle (morality) as opposed to majoritarianism. When
Edward Coke, was trying some cases and the king approached him and asked him that he
should pass some cases to him that he had personal interests in. There Edward Coke asserted
that king is also under Law and God and this is the fundamental conception of Rule of Law.
Then came “Magna Carta” according to which no person shall be indicted until he is judged
by his peers. It extinguished the concept of king’s superiority over law.
In India, when the west was still living in wilderness India had a flourishing civilisation. The
vedas said that law be based on equality and freedom. It said that law should eb such that
weak should prevail over the strong. It was also based on the concept of dharma. In India, a
home was considered to be the castle of a person in which he should not be subjected any
interference. During this this time, in West there was a rule that private people have to open
the doors to their quarters if army asked them to do so.
Western Law talks about fairness in the governance but Indian Law talks also about fairness
in society as well. Social Meaning of Rule of Law is that power must also be rendered
accountable and governance must be made progressively just and state should be just and
fair. Rule of law can only exist in Democracy because there system cannot be saved from the
arbitrary exercise of power.
AV Dicey gave the first lecture on Supremacy of Parliament and second on the Rule of law.
When Dicey was writing the thesis, he was trying to analyse that what was happening in
France he came to conclusion that In UK people were enjoying because there was Rule of
Law but in France there was no Rule of Law. In France there were parallelly two legal
systems, one was private legal system and another was Public System law. He stated that if
the administration is subjected to a different legal system there can be no justice and hence
administrative law is against the rule of law. However Dicey was not correct because later
Four principles of rule of law:
Pre-eminence of law & lack of arbitrariness
The principle of supremacy of law. The principle of legality In a society, law must be
supreme and not man. He was not in favour of rule by law. Government must be under law
and not law under the government. It means that any law that government passes may not be
law but government is under every law is passes. However high one may be, the law will
always be above you.
Every power of the government must flow from law. Whenever any government officer take
any action against you they must show authority of law. There must be some provision under
which power is exercised by administrative authority.
All law must come from ordinary legislative organs of the state. It means that every law of
which you are governed must be passed by an elected person. Thus, Dicey was against judge
made law, administrative rule making. All law must come from ordinary legislative organs.

Absence of wide discretionary powers with the administrative authorities. Direction is

something where there is absence of law. Admin authorities should have limited powers,
which are defined and regulated by law. In frame, he was watching that wide discretionary
power are there with the government. According to him, some discretion can be given but not
wide because discretion is ‘no law area’.

Dicey says that pre-eminence law does not mean any legislature but law which is based on
fundamental principles of common law. Natural law:

1. Principle of fairness: law just be fair and reasonable.

2. Law must not be arbitrary. Arbitrary law passed b legislature is no law. It can be
declared as unconstitutional. [Rupa Hurra’s case: brought concept of arbitrariness into
article 21 & 14] Fairness means law with the help of which the poor can prevail over
the rich
3. Law must be informed by public good.
4. Law must protect the basic right of people. law must be such which makes the holder
of power accountable to the people. all must have equal access to justice.
5. Law which is government people in the society must be based on generality. It means
that it forecloses many majoritarian options.
6. Law should not be specific: should not be passed by one person.
7. Generality: less chances of arbitrariness.
8. There should be predictability: law should not be vague.
 9. There should be prospectivity: law must always be for future application and it should
not be made for retrospective operation unless it is reasonable and is on fair basis. In
criminal law, retrospective criminal law can never be made.

Pre-eminence of equality before law.

a. Every person must be subjected to same system of law and the same system of courts.
Common man and government were subject to different courts. He says nobody can
enjoy special privileges. In france, government servants were enjoying special
privileges.
b. Everybody irrespective of his status, must be subjected to same system of courts
which are independent and decides the matter independently. He was saying that court
system must be independent because they aree the real protector. He saw in France
that court system was not independent and impartial.
c. He was against special courts. He did not want special system for administrative
purposes. He want unified judiciary. In India, HC and SC exercises jurisdiction over
administrative authorities. Thus India does not violate rule of law by having special
courts like labor courts etc. decision of such courts can be challenged.
Pre-eminence of equality:
a. The courts must be independent and impartial, otherwise there is no justice. In
France, the Judges are appointed and governed by the government and thus they are
not impartial.
b. There should be no special courts. There should be only one system of court and
everybody should be subjected to it.
Pre-eminence of accountability:
a. Every administrator must work within the limits of his power, otherwise he must be
held accountable to the people.
b. Every government officer must exercise the power for which it is give, other he must
be held accountable;
c. Every government officer must exercise the power with due process, fairness and
justness.
d. Dicey says that the common courts must hold them accountable. Their cases must be
tried by common law courts.
Pre-eminence of common law rights:
d. That the fundamental rights of the people must not flow from any legislation or any
book, they must flow from the common law of England, i.e. natural law. The source
of fundamental rights is the human person himself because of which he has certain
inalienable and inherent rights. Habeas Corpus case: Article 21 is the source of the
rights. Constitution can only be the reflector or consequence of the fundamental rights
not an originator of right.
e. Dicey feared that if the origination of any fundamental right is from written statute
then it can be abrogated or suspended easily.
Purpose of rule of law:
1. To limit the power of the government: to control the arbitrary, capricious and
oppressive exercise of administrative state power. The law is always above the
administration.
2. To fortify the fundamental rights of the people
3. To control many majoritarian options in democracy.
 Contents of rule of law: Dicey did it to foreclose the majoritarian option. But he meant that
rule of law would be a limitation on the sovereignty of the parliament. It would be a
limitation only on the exercise of administrative powers. Two guarantees that Parliament
would not misuse their powers:
i. Wisdom of the people: the way the people elect their representative in a democracy. It
supposes that the people would select them wisely
ii. Values and principles of common law: common law means the customs and traditions
of the people recognized by the courts in the administration of justice. It places a
restriction on the majoritiarinism of the supremacy of the parliament.
These limitations are vague, so the system of constitutional democracy developed.
 Generality (general rules that apply to classes of persons and behaviours as opposed to
individuals), fairness , prospective application (little or no retroactive laws), consistency (no
contradictory laws), and due process are are central to the rule of law. j
 The central normative principle of rule of law is Generality: If the law is general, then there is
a rule of law, if the rule is specific for any particular person or a group then there are chances
of discrimination and bias and thus it would not be a rule of law principle and it would cease
to be objective. It must be the same and equally apply to all. All does not mean everybody.
Classification must be based on reasonable differentia which must have a reasonable
relationship with the object that the class tries to achieve. Why generality is the core value of
law:
i. it forecloses majoritarian options. If the majority has the temptation of passing a
law specially for a specific minority, they would not be able to do it.
ii. More generality more acceptability:
iii. More generality, more inclusiveness in the society: society becomes a whole when
the law for everybody is same.
iv. More generality more individual freedom. Law is not for the individual. It has
been made keeping the ultimate benefit of the society in mind.
 Law must be fair: fair is reasonable and rational. Fair is something which maintains a
property balances between the instrument of law as a means to achieve an end. It must be
based on the doctrine of proportionality. Wednesbury’s reasonableness: how to decide that a
particular law is reasonable or not. The test laid down is that if the law is so outrageous in
defines of logic and standards of the morality of the society and that no sensible and a
reasonable man can come to that conclusion, then the law would be unreasonable.
 Law must be prospective: always for future application. Criminal law cannot be retrospective.
Civil law can be retrospective. However, there must be a power to make a law with
retrospective effect and there must be some social purpose for retrospectivity.
 Law must be impartially applied: the judicial system must be independent and impartial. It
must be open and transparent. There should not be any exception unless expressly provided
by the law.

Rule of law can be understood in two senses

1. Formalistic Sense- It refers to organised power instead of rule by one man.
2. Ideological Sense - it refers to regulation of pf the relationship between citizen and

Entrenchment of Rule of Law in Indian Constitution

 Supreme Court has held that rule of law is the basic feature of the Indian Constitution. it has
become a juristic norm on the basis of which court shall have power to declare any act as
unconstitutional.
 Rule of law is reflected in the preamble. Law must be based on the ideals provided in the
preamble of the constitution.
 Independence of judiciary and power of the judicial review. They are also held to be the basic
feature of the Indian constitution.
 The whole chapter on fundamental rights is a limitation on the power of the legislature and
thus the law must be based on the international standards of human rights.
 Article 21 contains due process. A. K. Gopalan v Union of India case: any procedure laid
down by the law is a good procedure. In Maneka Gandhi: law means a law which is based on
certain fundamental principles of justice, fairness and reasonableness. Rule of law principles
are imported to Article 21. Procedural and substantive due process.
 300A: property cannot be taken away without the authority of law.
 The courts have held that the british doctrine that king can do no wrong or that the king is not
bound by its own law is not applicable in India. Government is bound by the law in the same
manner a person is bound unless exempted expressly or by necessary implications.
 In the matters of Kesavanada Bharati the court opined that the rule of law is a part of te basic
structure of the constitution. In Raj Narain v Indira Gandhi the court pointed out that the
Article 329A of the constitution which immunised the election of Prime Minister from
Judicial Review was unconstitutional as it offended the rule of law which attempts to
minimise the arbitrariness in all spheres of the governmental functions.
 Absence of arbitrary power is the first and foremost postulate of Rule of Law . Exercise of
discretion without any principle is antithetical to rule of law. In the recent cases the concept
of rule of law is not only limited to the non-exercise of arbitrary power by state but also the
responsibility of the state to ensure fairness towards citizens while exercising public power
by setting up procedural safeguards.
Now rule of law has become a positive concept. In 1959, international commission of Jurists,
meeting in Delhi, made a declaration that positive and socio-economic contents. They said
that rule of law means existence of such socio-economic, political and cultural condition in
society by which every human person has equal and ample opportunities to develop his
personality to the fullness.
Under rule of law, we are not concerned about who rules, but also about how he rules. Hence
the concept of Separation of powers is conceptualised.
Separation of Power
In America:
Doctrine of separation of power: if violation, the freedom and liberty of people cannot be
safely guarded. It is fundamental principle of American constitution. the purpose of this
doctrine is to protect people from arbitrary, capricious and oppressive exercise of the power
by government. This doctrine is also derived from natural law. It is a conception derivation
from that higher law. Montesquieu gave it a concrete shape. He got content of his theory from
England. At that time, there was monarchy in England, powers were misused, excecised in
arbitrary manner and thus there wa a movement agiainst this. Thwere was a agreement
between parliament and king that parliament will exercise all legislative and taxing powers.
Judiciary will exercise judicial powers. Kiing will exercise executive power.
 In 1748, he wrote a book called espirit de lois, i.e. spirit of the laws and in this, he wrote
when the legislative and executive powers are united in the same person or body, there is no
liberty. Again there is no liberty if the judicial power be not separated from legislative and
executive powers. When judicial power is joined with legislative power, the life and liberty of
people will suffer for that the judge will be legislator and judge both and where the judicial
power is joined with executive power, they may act with violence and oppression.
There will be an end of everything where the same man or body to exercise all the three
powers.
People in America said that administrative actions are given law making and adjudicatory
and executive powers. This is against freedome and liberty of people.
When admin process starts rising, everybody criticised. People from England come to
America to protect rights, liberties and righteous freedoms.
Thesis behind doctrine of separation of power: if anybody is violating your right, all 3 organs
should co-operate in helping you out. If one person has all the powers, he can put you in jail
anytime.
Use of this doctrine in democratic setup: Jefferson [architect of amercian constitution]: and
Madison: accumulation of all power, legislative, executive and judicial in the same hands,
whether of one, few or many and whether hereditary, self appointed or elected may be
pronounced as the definition of tyranny.
Jefferson: concentration of legislative, executive and judicial power in the same hand is
precisely the definition of despotic government. It is no alleviation that these powers will be
exercised by plurality of hands and not be a single person because 173 despots will be as
oppressive as 1. This is known as elected dictatorship. This, it is not like that in a democracy.
There is no chance of dictatorship.
What kept check on legislature: difference lies in 2 thing:
 Wisdom of people in electing their representatives
 Unilateral values of common law, tradition, custom etc.
In India, democracy is there, but soil still remains undemocratic.

Secret of human liberty lies in the separation of powers. In France, there is no security of the
liberty of people because there was monarchy at that time and English men are enjoying
liberty.
According to him,
 separation of power means separation of the organs exercising the powers.
 One organ must not exercise the functions of the other organs of the government. There must
be total separation of functions
 There must be separation of personnel who constitutes the government. Executive should not
sit in the legislature. Ministers should not be the members of the parliament [in the classical
sense]. In America, there is a presidential form of government. Congress represents
legislature, President represents executive, SC represents judicial powers. In India, only the
 executive power is vested in the President of India. Other powers are not vested through the
Constitution. in the parliamentary form of government, the classical separation of power does
not hold implications. Because here we have a parliament system where the executive is the
inherent part of the legislature. Instead of parliament directing the executive, executive
directs the parliament. The doctrine of separation of power means independence of the
judiciary only. Because judiciary is separate and the other powers are combined. Execulature
and judiciary are the two organs in parliamentary form of government. Independence and
impartiality of the judiciary is the only way to secure the constitution. In America, they have
mutually checking arrangement. Both houses of the congress check each other. Lower house
is constituted based on population of the state. Upper house is based on the equality concept,
each state have 2 votes. President check legislature: exercising veto power. President checks
judiciary by appointment the judges. The proposals are made by the president, senate may or
may not accept it. He also exercises law making powers. He has power to issue notification
and they have the power of law. He has the treaty making power and in exercise of that
power, the president can even modify any provision of law. Still, strict separation is not
possible. Congress passes budget and if the budget is not passed, president cannot function.
They have the power to pass procedural laws which the judiciary has to follow. They have
the power to fix the number of judges. They have the power to establish special courts and
give them jurisdiction. They have the power to impeach the president and the judges. The
doctrine of separation of power in a classical sense is not applicable anywhere in the sense in
which Montesquieu took it. Judiciary interferes into the functioning of the other organs as
they have the power to declare on the constitutionality of the laws. In 1803, by Marbury v.
Madison, the court held that they have the power to declare a law unconstitutional.
 In India, the doctrine of separation of power has not been specifically recognized. Only
executive power is vested and other powers are not vested. Therefore, president exercises
legislative powers. Article 123: ordinance making power. Article 357: legislative powers
during Emergency. Judicial functions e.g. deciding the disqualifications of the MPs, deciding
on the dispute about the age of the high court judge, he appoints judges. Now, the Court has
amended the situation and now collegium suggests the name of the judges. Government can
delay the appointment.
Legislature interferes with the functions of other organs as they can impeach president and
the judges. Judiciary can interfere with both the organs of the government as it can declare
their actions as unconstitutional.
Has the doctrine lost relevance in the modern system of governance? No, the logic behind the
doctrine is still valid though the application may not be valid. If one combine all the three
powers into one hand, it would lead to absolutism on the people. therefore, not separation but
mutual check and balance is necessary. Divide the government against itself: the logic is still
alive. Put power against the power. Only power can check power. John Randorf: one may
cover whole constitution with limitation, it means nothing. Because only power can check
power. Logic behind this doctrine is not separation but is mutual check and balances.
Separation of power in 21st century means inter-dependence. Separation does not mean water
tight Compartmentalisation of the government, but interaction. It means not autonomy of
organs, but reciprocity, they must respond to each other. Threat to liberty lies in blending and
no in connecting the power. Not amalgamation or assimilation but interaction.
We are not talking here that one must check the other, we are concerned with co-operation of
all the organs of the government for achieving public good. Wer are not talking about co-
operative federalism, we need not fight on power but concerned with public good. For co-
operation, if we exercise the power of the organs of the government, it does not mean
violation of separation of power.
In America, residuary power belongs to the state and the people and there is a weak centre.
We wanted opposite. America has against become a strong centre country. Union
Government has become strong by exercising vast powers: we have move away from
separation to co-operation. In America, they use the doctrine of separation of power to check
the process of growth of administrative power. Therefore, they argued that first growth of
administrative process should not be there, but if it is there, give them as little power as
possible. They is known as red light theory. Now, they say that given them as much power as
possible but keep that power under control [green light theory].
Sources of power must be different but the power that flows from those sources can flow in
one channel, there is no violation of rule of law and separation of power. Law that checks
them is the administrative law.
Ram Jawaya Kapur v. State of Punjab
In India the separation of powers is not recognised in classical sense. It is only limited to the
fact that no organ of government can trample over the core function of another organ.
There has to be functional overlapping between different organs of the government for it to
work.
Keasavanda Bharati v State of Kerala
In this case the SC clearly demarcated between the Constituent Powers and Constituted
Powers of the Parliament
State of Punjab v Salil Sabhlok
The Chairman of the Punjab Public Service Commission was appointed as Harish Dhanda.
The petitioner approached the court asking that since the aforesaid post is a constitutional
position under the Article 318 of the constitution hence the government should provide
guidelines and the procedure of the appointment. The Punjab and Haryana HC framed
guidelines but the SC quashed it saying that though some procedure must be framed but we
cannot frame the laws.
Jeet Ram v State of UP
Criticisms of the Separation of Powers Doctrine
1. The theory was developed was enunciated by the Montesquieu by observing the
British System where the separation of powers was followed only for a very short
period of time.
2. A Welfare State cannot exist with the separation of powers as in such cases there has
to be functional overlap between them in order to solve complex socio-economic
problems.
3. This doctrine is based on the assumption that the three functions of the government
are separable in watertight compartments however that is not so as neither of the
power is distinguishable from the other two
 4. It will be impossible to take day to day decisions if the strict separation of powers is
done. Delegation of powers from legislature is done as it is not omnipotent nor does it
have expertise over all fields. Courts have to make its own procedures to deal with its
day to day problems regarding disposal of cases hence separation of power is not
desirable for effective and accountable governance.
Importance of the Doctrine
1. Checks and Balances
2. Incidental Infringement can be done infringement must not be of essential powers.
Separation of powers is not possible nor unalterable but checks and balances. We can
reconcile between the administration as the powers delegated to the administrative authorities
are only incidental in nature. Though Legislative powers are given to the administration
however they are merely
Droit Administratif
Total system of the Tribunal. After French Revolution when the napoleon gained power and
he observed that judicial courts were interfering in the administrative activities and the
developmental activities were stalled so he established Administrative courts.
Dicey opposed this system, he claimed that it was against the separation of powers and there
was no chance of justice before it. When the Consel de etat was established in 1799, then it
was only an advisory body which could only be approached after referral from the
administration. There was no open haering in these courts and the counsel de etat could only
advise the administration.
Blanco Notification was passed by the Napolean, where this court was made a court where
open hearing was taken but the filing was still done by the administration and the role of the
counsel de etat was still advisory.
1889 counsel de etat finally became court which pronounced binding judgements. Later the
administrative courts were found to be more effective than English courts. The probable
reason for the same was that the administrative courts gave the specialised justice as they
were more technically sound than the judicial officers.,
Anatomy Of Administrative law.
Conseil Des Conflict: which case will go to administrative court and to the civil courts. They
have developed the theory of governmental liability. Administrative function: it can be
classified into 4 categories:
1. Quasi legislative actions---- Those actions which are administrative but they have certain
trapping of law as passed by the legislature. They have the trapping of the ordinary laws. This
is called the rule making actions of the administration or delegated legislation. Administrative
authority as such cannot make law, but because of certain difficulties, they have started
exercising law making powers also. This power must be specifically delegated to them by the
legislature; it should not violate the principle of the constitution which says that the essential
legislative powers cannot be delegated. Only ancillary powers can be delegated. How to
determine that an action is quasi legislative
2. Quasi-judicial actions--- Administrative authorities not only makes laws nut also resoves
the disputes regarding applications of the rules and regulations so made.
3. Administrative actions or rule application—Bulk of the actions of the administrative
authorities constitute Administrative actions which is left out after the whole gamut of
adjudicatory actions and quasi-legislative actions are taken out.
4. Ministerial actions—These actions unlike administrative actions are such where
administrative authorities have no discretion whatsoever, the authority has to do the work
mechanically as laid down in the law.

Why study classes of actions?

The type of action will determine the extent of power of judicial review of the courts. If the
action is Quasi-legislative or administrative, judicial review would be less. If the actions
quasi-judicial action, judicial review will be of first order. If the action is ministerial action,
no judicial review.

1. Rule making action is a essentially an administrative action

2. Generality: Rule making is often general in character
3. Predictability: if the action is such which limits one’s actions then law must be specific and
predictable.
4. It must be prospective.
5. It must be published.
6. Principles of natural justice are not attracted: it is not necessary to consult every subject of
the rule. Noting and hearing are not necessary in this kind of actions
7. Such power cannot be sub-delegated unless authorized by the legislature.
8. There is no duty to give reasons.
9. Based on policy and not objective criterions.
Express Newspaper v Union of India, 1958
Government passed working journalist wage fixing act. A wage board is created which is an
administrative body. They were given power to decide the wages of the working journalists.
Wage board heard the arguments of the working journalists, accepted certain documents to
prove their claims, invited the owners of the presses and papers and they asked them about
the demands of the journalists. They showed their profits and expenses and submitted their
own documents. Board allowed the lawyers of journalists to cross-examine the owner and
vice versa. After all the hearing, Board decide a particular wage for the journalists. The other
party argued that it is not a law making action but an adjudicatory action, so it is a quasi-
judicial action. But the action had all the characteristics of the rule making actions. The SC
did not decide on this matter. Where a rule has to be framed which is to be based on facts,
which are to be ascertained objectively, then that particular rule which is made would be
under a rule making power of the administrative.
UOI v. Cyanamide India
In this case while dealing with a similar set of circumstances such that the administrative
authority had the duty to hear both party’s representation and then take decision regarding
fixing of drug’s prices the court opined that the power was quasi -legislative in nature.
government wanted to fix the price for essential drugs. Whether fixing of the price is what
function? It being a matter of policy, therefore it is quasi-legislative decision.
State of Punjab v Tehel Singh, 2002:
In this case the authority was created by law to ascertain the jurisdictional limits of the gram
Sabha when the order was issued that marked out the territorial jurisdiction.
Whether the action of the administrative authority determining the area of the Gram Sabha is
quasi-legislative actions? They had to action evidences for deciding the same. It was held to
be quasi-legislative action as it is based on policy and there is no objective criteria which
would be applied as it is in the courts. The courts generally do not interfere unless there is a
violation of any constitutional provision of express provision of a statute.
Automotive Tyres Manufacturers Association v Designated Authority, 2011
Under the anti-dumping law, to decide on the dumping duty, what kind of a function it is? It
is a quasi-judicial authority as there is an objective criterion and anti-dumping law has to be
applied. They need to take evidence as to the injury to the local industries. There is a
provision of appeal also.
Difference between law passed by the legislature and law made by the administrative
authority:
1. Nomenclature: law passed by the legislature is considered as statutes or legislation or
supreme legislations. Law by administration is called rules and regulations and are
sub-legislations.
2. Source of the power is different:
i. legislature--- constitution
ii. administrative----statute or enabling act
3. The extent of power , the extent of power of legislature to make rules and laws is
confined to the constitution whereas the power of administrative authorities to make
rules
4. Status of the legislations passed by the legislature are called supreme legislation
whereas the administrative rules are called subordinate
5. Law must necessarily be published in Gazette however the administrative rules are
not necessary to be published in gazette rather there are multifarious
Committee of Minister’s Power , 1932
The Donoughmore committee on Minister’s powers (1932) analysed the characteristics of a
'true judicial decision’ and summed up the attributes, the presence or absence of which
stamped a decision as administrative decision-making or quasi-judicial action. The
Committee was of the view that a true judicial decision presupposes a lis between two or
more parties and then involves four requisites :-
1. Presentation of the case.
2. Ascertainment of questions of fact by means of evidence given by the parties.
3. Ascertainment of questions of law on the basis of submission of legal arguments.
4. A decision which disposes of the whole matter by applying the law to the facts.
A quasi-judicial decision involves the first two determinants, may or may involve the third
but never involves the fourth determinant, because the place of the fourth determinant is in
fact taken by administrative action, the character of which is determined by the minister’s
free choice involving expediency, discretion and policy considerations. Decisions which are
administrative stand on a wholly different footing from quasi-judicial as well as from judicial
decisions. In the case of administrative decisions, there is no legal obligation to consider and
weigh submission and arguments, or to collect any evidence, or to solve any issue. The
grounds upon which the action is taken and the procedure for taking the action are left
entirely to the discretion of the authority. This approach of the Committee seems fallacious
because the judges cannot be regarded as mere norm-producing slot machines, they do take
into consideration policy, socio-economic and political philosophy, expediency and exercise
discretion while deciding a case
Lord Atkin Test
Lord Atkin in the matters of R v. Electricity Commissioner where he stated that
Whenever any body having legal authority to determine questions affecting rights of the
parties and is under the obligation to act in a judicial manner then it is termed as a quasi-
judicial action.
Duty to act judicially may arise from two sources which are as follows
1. Express Provision
2. Implied Provision

How to classify Judicial Actions?

Province of Bombay v. Khushaldas Advani
Section 3 of the Bombay Land Requisition act stated that the govt can acquire any property if
it considers it expedient to do so in interest of public without giving any hearing or notice.
The question came up that whether the action is quasi-judicial the court answered in negative
as there was no statutory requirement to conduct hearing or provide notice.
Radheshyam v. State of AP
The Municipalities Act of AP laid down that the government under Section 53(9) could
undertake the functioning of municipal corporation if it considers it is not functioning in the
right manner for a period of 18 months the court took the view that the said act was valid as
there was no statutory obligation to provide hearing or notice hence the act was not quasi-
judicial.
This stand was changed in the matters of AV Kraipak v UOI where the court laid down that
the implied provisions are also to be seen.
Nakuda Ali v Jayaratne 1951 Privy Council Case
A licence which was given to a corporation was cancelled on the ground of unfair practices.
This was questioned on the ground that hearing was not given to the aggrieved party. Hence
the question was raised that the no notice or hearing was given the court however reasoned
that
R v Metropolitan Police Commissioner
In this case the authority revoked a license on basis of a complaint and he approached the
court but it said that it is not a quasi-judicial function as no statutory requirement was given
to hold hearing.

Cooper v. Wandsworth Board Works

If a person wants to start a construction then he has to give a 7 days-notice a person started
constructing and the authority razed it in this case the court said that no notice needed
Ridge v Baldwin 1964
There is a police law and there is a watch committee which overlooks the functions of police
in this case a senior police officer was alleged to have obstructed the justice he was acquitted
however the judge in the trial against him and made some remarks about him hence the watch
committee removed him. In this case no notice or hearing was given, the court reasoned tht
since the law is silent it was not quasi-judicial action hence no need to follow natural justice.
On appeal this decision was overturned the court held that if the action of the administrative
authority affects the rights and obligation of the person then even if the law is silent the
natural justice criteria must be met.
What is the difference then the Administrative Actions and Quasi-Judicial actions?
If the action is quasi-judicial then the criteria of natural justice is to be followed strictly.
However, if there is administrative action then the mere requirement of fair and reasonable
exercise of power.
Hence now we have to see that in order to ascertain whether administrative actions have
implied requirement of judicious exercise
1. What impact or effects action have on the person?
2. What is the seriousness of the consequences (loss of property, loss of livelihood,
pecuniary damages,)
3. If there is lis between two parties
AK Kraipak v UOI [Read this case very carefully]
In Jammu and Kashmir, the forest department was earlier in the state control however it was
changed and brought in central control. A person was working as conservator of forest, the
central govt. decided to institute a selection committee for granting promotion he was a part
of this committee. The meeting was held he was also a candidate and the member of selection
committee. When his turn came he went out and appeared as a candidate and when his case
was considered he did not actively take part in selection but took place when other candidates
were discussed he actively took part. He was still selected in this case.
In this case the SC said that the duty to act judiciously can arise statutorily or impliedly. The
dividing line between quasi-judicial function and the administrative function has become thin
and is gradually been obscured. However there still remains a difference between them.
The duty to act judicially can arise from two sources
1. From the provisions of the law
2. The nature of functions- If they have a serious consequence then the administrative
authorities have to act in a fair , reasonable and just manner.
Suppose University manual provides that if the student is caught using unfair means then his
examination can be cancelled but the manual does not provide a hearing and notice even in
such a case the university has to act in a judicious manner because its consequences are
severe.
Maneka Gandhi v Union of India
This case is very important from constitutional law and administrative law. The government
said that she should not leave the country and decided that her passport has to be impounded.
She challenged it under the Passport Act by saying that she was not given any notice or
hearing. The govt took the plea that the act does not provide any notice and hearing therefore
it is an administrative act. The court decided that one has to look at the consequences and if it
prejudicially affects the person then one has to be given hearing and notice.
If there is emergency then the impounding can be done but it should be subject to “post
decisional hearing”. It was the first case in which post decisional hearing was developed. It
was contended that post decisional hearing is futile the court reasoned that post decisional
hearing is better than not giving any hearing. Post decisional hearing is in line with the
Article 21 process established by law.
MH Gill v Chief Election Commissioner
Some kind of hearing and notice must be given if the election is cancelled.
SN Kapoor v. Jagmohan
The power of the govt. under Municipalities Act to suspend a municipal corporation is an
action which has stigma and other prejudicial consequences hence there is a duty of acting in
a judicious manner.
It is settled that if there is administrative action then the authority is under duty to act
judicially if the act is
Province of Bombay v.
Characteristics of Quasi-Judicial Action
 1. There should be Lis between two parties. There should be a proposition from one
party and opposition to the same.
2. The authority must be under the duty to act judiciously.it can arise by two cases which
are 1. Statutory Requirement and 2. Consequences of the Action.
3. They are not bound by precedent even if the action is quasi-judicial. Therefore they
have to look at the proportionality,
4. If an administrative authority has been given quasi-judicial power cannot be delegated
because it has been given to him by trusting his ability and position.
5. In administrative decisions the judicial review is very narrow but the judicial review
in quasi judicial action is wide.

MODULE-- III
The Definition of Delegated Legislation
1. Salmond- The law that which proceeds from any authority other than the sovereign
power and is therefore dependent for its continued existence and validity on some
superior or supreme authority is called delegated legislation.
2. Halsbury Law’s Of England- When an instrument of legislation nature is made by the
administrative authority in exercise of the power delegated to it under a statute is
called delegated legislation
What is the Reasons of Delegating Legislation?
1. It is a natural concomitant to the intensive form of govt. or welfare govt. The
government is moving from policing the people to become the providers of the people
in social economic and political sense
The state has become the enablors of people in order to enable them to take care of
themselves. It has also become the facilitator of the people to progress and achieve
their goals of better lives hence with so many roles delegated legislations have
become an inevitable necessity.
The purpose of social justice is to reduce structural inequalities and to provide for
social integration hence there is a need of many laws which cannot be framed by the
parliament even if it sits for 24 hours a day for all 365 days hence it has become
necessary for the govt. to delegate law making powers.
Even after liberalisation the functions of the govt. has not reduced but instead went up
as now it needs to play an enhanced way of regulation and facilitation of private
sector.
2. The fact that general laws falter in the specifics of life therefore there is a need of
individualisation of laws. To bring laws nearer to the people and to bring
individualisation delegation of law making power is necessary. In some cases general
laws fail to provide justice hence delegation of law making powers needs to be given
to the administrative authorities to ensure the quality of justice.
 3. Need for socialisation of laws law should take care of the social problems faced by
the people from structured inequalities and for doing real justice to the people. Hence
the laws must have flexibility , openness and responsiveness to the social conditions
of the people on whom the laws are applied hence it is extremely necessary to
delegate rule making powers to ensure that the laws adapts to the social realities of the
nation
4. When experimentation is needed then the general laws must be adapted to the
unforeseen circumstances and administrative authorities also need to make laws
according to the changed situations through experimentation.
5. Technicality of Laws – In beginning the society’s operation was simple and hence
simplistic and general laws were adequate to the needs of the society. Now it is the
age of technicalisation and hence in this time general laws may not be enough and
moreover the legislators are also not speacilised in everything therefore it is necessary
that the authorities make laws for specific and technical areas such as Nuclear Energy.
6. In order to manage crisis situations
7. Where Secrecy is needed. Usually laws should be openly made however in certain
cases the object of the law is defeated if the law is known to every one like if the
Zamindari Act was known to many people then they would have transferred their
lands to fictitious people in order to save their lands or divorced their wives and
transferred their lands to save their lands. Hence it is necessary that the law making
power is delegated or there is another alternative in which the parliament passes the
law and later the law can be enforced by the administrative authority.

Dangers in Delegating Power

1. It violates the separation of powers principle
2. The delegation of powers is a threat to the liberties of the people
3. It violates the constitutional balance and rule of law.
4. It violates the constitutional trust which the populace reposes in the elected
representatives.
5. This practice is corrosive of democratic ethos
6. Bureaucrats because they are insulated from parliamentary audit and popular pressure
may make law which is less effective and acceptable. The executive make certain
laws which are less acceptable by the people. For Example In 2010 a bill came before
the parliament (Prevention of Torture Bill) it gave wide powers to the police in
section 6 of this act no person could be prosecuted under this act without an express
confirmation by the police. This bill was not passed by the RS because of popular
pressure
7. Wide delegation may become a source of corruption and bad governance . Under
some legislations administrative authorities are given the power to grant exemption
from the exemption from the application of the law. For Example the Bonus Act gave
the powers to administrative authorities
8. They lead to rule of men. The same persons makes the law , executes the law and
adjudicates the laws.
Administrative rule making is unavoidable hence delegation is necessary however there
should be enough checks on the exercise of such powers The sources of checks are
1. The parliament
2. Judicial Review
3. Procedural – Try to provide certain procedural safeguards for exercise of rule making
laws
Differences Between Administrative rules and Parliamentary laws.
1. The laws made by the parliament is called statutes, laws or act however administrative
rules are having several names such as notifications, circulars and etc.
2. The source of law. If the authority from which laws are emanating from the
parliament then it is called parliamentary legislations but if they are emanating from
any other source it is called administrative legislations
3. Ground for invalidity. The laws passed by the legislature can be invalidated by only
one ground that it violates constitutional provisions (express or implied). But rules
and regulations framed by the administrative authorities can be challenged on two
grounds. One when they violate constitution and even if they violate any provision of
the enabling act or parent act.
4. Implications of effect. If the parliamentary law is declared void for being
unconstitutional then implication is that the law is void ab initio. It will be assumed
that the law was never enacted unless the courts provide for prospective overruling. If
the administrative rule is violating the constitutional provision then the rule becomes
void ab initio. But when any person acquired any vested interest when the rule was in
operation then that will not be reversed. If the rule violates enabling act then we have
to see that if the defect can be cured then the rule shall become valid after making
such changes.
5. In India the executive has the inherent rule making power in the fields not occupied
by the legislature under Article 74 but in US and UK the powers of the executive is
not inherent but merely delegated to them by the legislature.
Classifications of Delegated Legislations
1. Classification according to the Title- the legislation passed by the parliament is called
act or statute while the law passed by the administrative authority is known by several
names such as ordinance, rule, regulations and etc h
2. Classification based on Discretion – where authority has a lot of discretion to choose
from various alternatives. While other delegation is conditional or contingent where
there is no discretion in making rules and regulations and the law has already been
laid down by the parliament in this kind of delegation the power which is delegated to
the administration

Field v Clark in this case the congress passed a law that if the president is satisfied
that another country is not applying any import duty then he can pass a notification to
lift any import on goods from that country. This was challenged the court replied that
only conditional power is delegated to the executive hence constitutional.
King v. Benoari Lal Sharma- In order to maintain law and order situation, the
governor general passed a law which provided that some special courts were to be
 established to try some serious kind of offences if the provincial govt. feels that the
special courts system can go on then they can extend it in their province.
UOI v. GM Sansthan - In this case the law was passed which provided that the state
government will notify the law.

3. Authority based classification- The authority that is making law is supreme then it
will be considered to be legislation. But if it is subordinate then it known as delegated
legislation, if it further delegates then the legislation is called sub-delegation.
4. Nature based classification- Where the legislation has laid down the policy and the
guidelines under which power is to be exercised then it is called normal delegation.
But if you are delegating exceptional power then it is called exceptional delegation or
Henry VIII clause.
Ram Jawaya Kapur v State of Punjab- Where is the law under which the Punjab govt.
has been given the power to nationalise textbooks. The court said that the executive
need not have the authorisation from legislature
Characteristics of Good law making
1. Constitutional
2. Enabling Act
3. Transparent in two counts firstly the rules should be properly published and secondly
rule making process should be transparent and be made after taking all stakeholders in
consideration.
4. Proper Targeting – there must be identification to whom will they be applicable to.
5. Consistent – The rules should give equal opportunities to all the persons falling in its
scope
6. Certain not Vague
7. Prospective in application retrospective can be only when authorised by the
legislation. Better Executive regulation department is present in Britain.
Indian Constitution does not prohibit delegation because
1. There is no acceptance of separation of power in classical sense when the SC said that
separation of power
2. The constitution doe not vest any powers unlike UK or US Constitutional law and
theory.
We can even see that the Constitution in fact impliedly accepts delegation of powers
1. Article 13(3) definition of law includes ordinance, orders, bye laws , customs,
regulations and other usages having the force of law. Hence by mentioning
regulations and byelaws we can see that the constitution accepts delegations
2. Article 73 provides that the executive has the power to make law. the executive power
of the Union shall extend to the matters with respect to which Parliament has power to
make laws. Ram Jawaya Kapur v. State of Punjab.
3. Article 123 Ordinance making powers of president
4. Article 356 lays down that if emergency is created then president can rule the state
hence this also shows that the constitution accepts delegation Even 357 provides that
the president can make laws
5. Article 357 also provides that the president can also declare emergency all over nation
and subsume law making power
6. Article 299 of the constitution provides the power to the executive to enter into
contracts
7. The power to enter into any treaty is also vested in the president even this goes on to
show that
The limits on the law making on the law making power delegation will be discussed in
later chapters.
The Status of Constitution in United Kingdom
The UK does not have the written constitution but they have a parliamentary democracy
where the parliament is supreme. However now after becoming member of EU this
sovereignty is somehow controlled as now the law passed by the Parliament is subject to
the EU.
Therefore, there is no limit of delegation of powers as there is no judicial review in the
actions of Parliament. Under the proclamation of 1539 Statute of Proclamation, the wide
powers even the amendment powers were transferred. Reform Act 2006 was passed by te
parliament that in order to affect the economic efficiency the finance minister can take
any actions. Then came the Human Rights Act, 1998 which changed the scenario in a
manner that if the parliament has passed any law which violates any human rights
convention then it is not valid. If they delegate power in a manner that it contravenes
human rights then the delegation is void. If the parliamentary actions violate HRA then
UK Supreme Court can hear it and strike it down. How this concept is reconcilable with
the supremacy of parliament. They said that the SC cannot strike down the law, but only
provide that the laws passed by the parliament is incompatible with the HRA and request
the legislature to change it. Even in case of parliamentary the limitation of public opinion
exists. They consider that declaring a law incompatible is different to quashing an act of
parliament.
1. British Railway Board v Pickins
Delegated Legislation in USA
Some people say that Columbus discovered America while other think that the America
was discovered by Americus a Frenchman. The first settlers came in 1607 and settled in a
place called Virginia because to them the right to life and personal liberty was the
important and this was not available in England because there was monarchy and the
Christianity of Catholic version. Hence when they drafted the Constitution they only
wanted to ensure that the state has minimum interference in liberties of people and hence
they had main thrust on classical separation of power. Hence the US Constitution believe
in complete demarcation and separation of powers between three organs
1. Executive Power by President
2. Congress holding the power of legislation
3. US Supreme Court which had no power of judicial review over legislations and
executive
American authors say that US Supreme Court snatched away that power in Marbury v.
Madison. But the question still arises about the delegation of law making power. The first
case came was
Field v. Clark
The congress passed the law that gave power to the president to notify to put an embargo
on import from a country if they put custom duties on American products. The court said
that no law-making power was transferred or delegated but only contingent power to
enforcing the will of the congress.

Panama Refining v. Ryan

End of 1st WW – Economy in shambles—National Industrial Recovery and Fair
Competition passed--- Section 9 authorised the president to make law to prohibit foreign
trade in excess of state law—US Supreme Court says that the delegation is
unconstitutional
Schechter Poultry Corporation v US
When the president was given the power to set up a court for fair trade for poultry
industry and make criminal code for the same –US Supreme Court declared it
unconstitutional
Court Packing
There was a hue and cry against the court for working in doctrinal manner. Nixon also
had a plan according to which he would pack the SC with the progressive judges of his
own choice however before he could do it, one judge changed the side to progressive.
Since then no delegation of power has been quashed. Switch of one saved the nine.
National Broadcasting and Communication Authority Case
National Broadcasting and Communication Act under which there was a provision of
laying down an administrative authority. The authority was given the powers to distribute
the licenses in public interest. The authority was given the power to frame regulations for
granting broadcasting licences. This was challenged in the US Supreme Court but the
court observed that the power which was delegated to the authority was merely an
ancillary power
Yakus v. US
In this case the Emergency Price Control act was challenged on the ground of violation of
of separation of power. In this case the court observed that only ancillary powers were
delegated to the administrative authority as the policy was already laid down by the
legislature that the act shall be brought in force only when the when it is necessary for the
act that is when the commodities are not available to the consumers at reasonable prices.
Ishter v. US 1947
Price Renegotiation Act
Contractors exploited the govt, during the war and charged high prices for urgently
needed goods. The Congress passed price renegotiation act and the powers were given to
the govt. to enter into renegotiations of the contracts and if they feel that the prices
charged were high then the contracts can be renegotiated according to the rules framed by
the govt.
The court said that the word used by the legislation is “excessive profits” hence the
congress has laid down the essential policies and delegated only the ancillary powers to
the Government. Hence the act was held to be constitutional.
In view of the doctrine of separation of powers legislation cannot delegate essential law-
making powers however they can delegate the ancillary powers.
Constitutionality of Delegated Legislations in India
Three Phases
 Ist Phase- Till 1935
 IInd Phase – Till 1950
 IIIrd Phase – Present
When Privy Council was the highest court before 1935 parliament had appointed a body
of eminent jurists their function was to advise to the crown on basis of which crown had
to make a decision. In 1935 when Government of India act was passed and it laid down
that henceforth the federal court which was established which would decide constitutional
law cases
PHASE I – PRIVY COUNCIL
QUEEN v. BURAH

. In 1866, the British parliament passed Indian Councils Act which established Indian
cabinet for taking decisions. In 1869 Garo hills were separated and power was given to
LG to extend any law to the Garo Hills Area. He from time to time extended operation of
laws to Garo hills and make certain incidental changes. Burah was punished for murder
and was given death sentence. His argument was that LG was given the powers to notify
laws in Garo Hills and also make incidental changes hence this was delegation of law
making power and violation of Indian Councils Act. The court said that in view of Indian
Council Act the extension by LG was invalid on three counts
1. The power of extension of a law in any territory was a delegation of law-making
power hence it is invalid
2. .
3. .
This decision was appealed to Privy Council and he reversed the Calcutta HC. The court
said that Indian Legislators are not agents of British govt.
 1. Since the Parliament has plenary but parliament can delegate some rule making
powers if they like but they cannot efface themselves and abdicate the essential
legislation making powers.
2. These will not be case of delegation of law-making powers but conditional law-
making powers if they still exercise the essential law-making power.
3. Power to make incidental legislation is not the power of making laws but only to
make a few changes in it without changing the essential nature of legislation.
This decision was interpreted in two ways
1. Parliament was having plenary powers hence it can delegate powers
2. The parliament could delegate only conditional legislations.

IInd PHASE – FEDERAL COURT

Jatindra Nath Gupta v Province of Bihar

In this case, the provincial government was authorized to extend the applicability of The
Bihar Maintenances of Public Order Act, 1948 for one year, under Section 1(3) of the
Act. The extension could be made with such modifications as it may deem fit. This was
challenged on the grounds of excessive delegation.
The Federal Court held that the delegation of power of extension with modification is
ultra vires the Bihar Provincial Legislature as it is an essential legislative function. A
dissenting opinion was delivered by J.Fazl Ali, wherein, he held that the delegation of
power of extension was constitutional as it only amounted to continuation of the Act. This
judgment marks a shift from the position adopted by the Privy Council in R v. Burah.
This decision is of great importance, as it implies the acceptance of a rigid theory of
separation of powers by the Federal Court. It was first time that it was laid down that
legislation powers cannot be delegated.

PHASE III – SUPREME COURT

The are three things in the Indian Constitution
1. The powers under given to the Parliament by Constitution is plenary power hence
they cannot delegate the powers in contravention of Constitution. They cannot
delegate any power they do not have. They cannot delegate power under state list and
they cannot delegate powers in contravention of fundamental rights.
2. The principle of Delegata potestas non potest delegari is not applicable in India as the
Parliament as a body is not the representative of will of people and the power id=s
delegated to him
In Re Delhi Laws Act, 1952
It was asked to the SC under Article 143 that whether Under our constitutional dispensation
can the law-making power be delegated?
The seven-judge bench was constituted and no judge agreed with another. The government
wanted to check the constitutionality of delegated legislation in view of the Privy Council and
Federal Court decisions. Hence they referred to SC the constitutionality of three acts namely
1. Delhi Laws Act, 1912, Delhi was separated from Punjab and a LG was appointed who
had the powers to notify any law in Delhi with any changes which he may deem fit.
The court said that the power to notify a law already laid down by the parliament is
constitutional and the words modifications merely means minor changes.
2. Ajmer Merwara (Extension of Laws) Act, 1947- The power was given to executive to
extend any british law to the area of Ajmer.
3. Part C States (Laws) Act, 1950 – Section 2 of the act which has been passed by
parliament of India there were two provisions which were challenged. The power was
given to government to extend any law applicable in part A states with minor
modifications and the court declared it to be constitutional. Another part of the
Section 2 provided that the power was further given to central govt. to repeal and
amend any ;law which is applicable in Part C states. The second part was declared to
be unconstitutional the power to repeal or amend any law is essential legislative
function.
After a very confusing judgement the govt. asked Patanjali Shastry the CJI told that what are
the principles which were identified by the court.
1. Delegation of Certain law making powers under Constitution is a compulsive
necessity
2. Delegation of law making power by legislature cannot be w/o limit. There powers are
not like British Parliament because above them is the constitution
3. Essential law making powers cannot be delegated. There exists a division of power
even if the separation of power is not followed in India and hence if the incidental
powers are delegated then they are constitutional.
Arguments by Parties
1. MC Setalvad said that Indian Constitution is not an agent of the people and therefore
their powers are plenary. In India parliament are plenary even then some limits are
there on its exercise of powers by the written constitution. Hence beyond the
constitutional limitations powers cannot be delegated. He argues that the limit is that
parliament is that parliament cannot abdicate or efface themselves and they cannot
delegate the powers which they do not have. However they are absolutely no limits
apart from these hence the doctrine of Delegata non potest Delegare is not applicable.
2. NC Chaterjee who was acting as the amicus curiae , argued that under the Indian
Constitution no matter that the seaparartion of power is not a part with that doctrinal
rigour but the powers which are delegated to the parliament cannot be further
delegated. The people have given certain powers to the parliaments and they are
expected to represent the will of people and they cannot delegate any power. If
parliament has delegated any powers then they are creating another authority which it
does not have the power to do. Colorable legislation argument. Hence there is total
prohibition.
The decision of Court
 1. The delegation of powers is a necessity in welfare nation such as ours.
2. It cannot be technically be said that parliament is not the agent of the people hencethe
doctrine of delegate non potest delegare is not applicable in this case.
3. The powers of parliament are plenary however the parliament is not allowed to
delegate essential legislation making powers.
4. The parliament can also not violate the express and implied limits of constitution.

What are the Express Limits of Constitution which cannot be violated

1. The division of powers cannot be violated the powers which are not given to the
parliament cannot be delegated. They cannot delegate the powers which are given in
state list and the state govt. cannot delegate the powers in union list.
2. Territorial applications of law which is given in the constitution should not be
violated.
3. Article 20 provides that ex post facto criminal laws cannot be passed by parliament
and they cannot permit the executive to do so.
4. Fundamental Rights acts as limitations to the laws passed by the parliament and they
will also be applicable to the laws passed by the executive.
5. Article 311 lays down the constitutional rights that the service cannot be terminated
without hearing and natural justice
6. The article 14 cannot be violated
7. Legislature should not efface and abdicate its powers provided in the constitution.
8. The implied limits of the constitution should also not be violated. There are two
implied limits
i. The policy of legislations cannot be delegated the court said that the legislative
power can be divided into two parts which are essential and ancillary.
Ancillary powers can be delegated but essential law making powers which
includes cannot be delegated.
ii. Legislature must lay down for the executive the guidelines to exercise their
law- making powers. These guidelines should guide the executive while
exercising their rule making powers.
This is called policy and guidelines test. Whenever any delegation of law-making powers is
done then from where you can find out the policy and guidelines of the delegation of powers

How to Ascertain the Policy

First important thing is that in order to decide whether the sufficient policy has been laid
down or not then you have to see following things
1. What is the subject matter of the legislation? if the subject matter is tax then the court
will be very strict. But if the subject matter of the legislation is welfare legislation
then court will be liberal
2. What is the provisions of the statutes
3. Scheme of the law. See whether the parliament has completely abdicated the control
or the parliament has retained some control for itself.
 4. In Administrative law every thing is contextuality hence the court always looks at the
facts and circumstances Saint John’s Teachers Training Institute v. Regional Director NCTE (2003)
5. If the policy is evident from the four corners of law. And other internal sources such
as the name of the law , provisions of the law or the preamble of the law.
6. You can find out the policy from the history of the law. The circumstances in which
the law was passed and what problem did it sought to remedy.
7. You can also find the policy of the law from the discussions regarding the law in the
parliament and the select committees of the parliament
8. You can also see the policy of the law from the earlier legislations which existed in
the earlier law.
The policy of the legislation cannot be imagined by the court it has to evident from internal or
external sources. If there are two views regarding the existence of policy then the court shall
uphold the law by taking the view which is supported by the presumption of constitutionality.
The court also looks at the nature of the administrative authorities on whom the power is
delegated if the administrative authority is one which represents the will of people then even
wide discretion is allowed.
If the adjudicatory power has been delegated then the court has to look whether the
adjudicatory authority is independent and capable of giving fair decisions.

Raj Narain v. Patna Administrative Committee

The state govt. had passed the local authorities law which instituted the committee which had
to manage the civic affairs of Patna city. They gave the power to the committee to pick and
apply any provision from the Bengal Municipalities Act in Patna with any modification they
deem fit.
The petitioner argued that
1. There is no policy or guideline laid down for the committee to choose any provision
and apply it to the Patna city.
2. The committee was also given the power to modify the law while applying it hence it
gives excessive powers to the administrative authority.
3. The power of modifying the law when the policy is not given then even the slightest
power to modify can be misused upto a great extent hence the act was declared
unconstitutional
The court declared the law unconstitutional on the ground that no policy and guideline has
been laid down by the legislature to choose that how a provision has to be selected and the
court also took the view that any power of modification in absence of policy and guideline
shall also be potentially wide and prone to misuse.
Harishankar Bagla v. State of MP
Section 3 of the Essential Supplies Act delegated the power to state govt. to make rules
and regulations for maintaining essential supplies of the commodities. The delegation
 under this section was declared constitutional as the policy and guideline was laid down
by the legislature that is the act was to be used on ly for maintaining supplies of essential
commodities
The purpose of rule -making was maintaining the essential supplies and fair prices and the
question which was raise was whether the policy is sufficient policy guideline. The court
replied in affirmative and ruled that the said policy was sufficient to meet the threshold of
test and guideline test.
Section 6 of the act also had the provision which provided that any order passed by the
administration will be effective notwithstanding the existing laws. The court said that the
this is not amending power of the administration but only bypassing the existing
legislation.
Bhatnagar & Co. v. UOI
There was a skeletal legislation in which govt. was supposed to control the export and import
and there was a lot of delegation of law-making power and therefore the power was given to
the administrative authority to issue license and even revoke it on the ground of violation of
the legislation.
Administrative authority revoked license because of trafficking the license. The court said
that the policy of the act is given in the preamble of the legislation which says that the
purpose of the act is to maintain the elimination of unfair practices.
The law cannot be operated on absolutes and blinds.
Edward Mills v. State
The states have passed minimum wages act. They are applied to certain industries which are
mentioned in a schedule and the govt was given the power to add any other industry in the
schedule. The court took a liberal view as the act was social welfare law, it said that the
purpose and policy of the law is given which is to ensure fair wages for the labours. Hence,
the court said that the delegation is constitutional.
DS Grewal v. State of Punjab
There is an All India Services Act, 1951. It is a skeletal legislation then the power is given to
the government to lay down the rules and regulations about the regulation of the services. The
government passed All India Services Appeal Rules. The rules were challenged on the
ground that the skeletal legislation does not provide the policy, purpose or the guidelines to
exercise the rule making powers. The court said the rules were not unconstitutional. It said
that the policy and the guidelines of the act is clarified in the act which is “to regulate the all
India services officers.”
No clear cut standard answer is given because all the situations are different and the court
looks at the contextuality in which the law is applied
Hamdard Dawakhana v. Union of India
Many pharmaceutical houses used to advertise that they have the magical cure for many
diseases and the people were cheated, this became a huge problem . The legislature
prohibited these kinds of practices in Drugs and Magical Remedies (Objectionable
Advertisements) Act,1954. Under this act a schedule mentioned several diseases and it
mentioned that advertisements of cures of these diseases was prohibited. The government
was given the power to include any other disease to the schedule prohibiting any remedies.
Government had added several new diseases and it prohibited Hamdard Dawakhana from
several advertisements. The Hamdard Dawakhana took the plea of excessive delegation
without any policy and guideline. The court accepted the plea and the act was declared
unconstitutional by the court on the ground that the blanket power was given in this case to
add any disease in the schedule and there was no guideline given in the legislation to do so.
The decision of the SC was criticized a lot for being off track to the established principles and
laws
1. It was seen that the policy and guideline was present in the legislation’s title that it
prohibited the advertisements selling magic remedies to innocent customers on the
baseless claims of curing an incurable diseases.
2. The power of the court to add any new disease was already limited by interpretative
restrictions. The power to add any new disease in the schedule should have been
interpreted it to be limited by the rule of ejusdem generis. Hence the govt. could only
add the diseases which fell in the same species with the previously mentioned list of
diseases. If the disease did not have the same characterstics as the previous specific
list of disease then the exercise would have been invalid. The term “any other disease
“ should have been interpreted by the court not as giving unlimited powers to the
govt. but rather limited by the characterstics of the list of previously mentioned
diseases.
After Hamdard Dawakhana, the court reopened the policy and guidelines test and the doubted
its validity.
Gwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner Sales Tax
In this case the policy and guideline test which was used since In Re Delhi Laws Act was
reopened by the Justice Matthews. He was of the view that the test and guidelines test is
undignified and not edifying test because in this test the court has to find for the policies and
guidelines in every nook and cranny of the law. He formulated “abdication test”. The test was
that the court only has to see if the power to modify or repeal the law is delegated to the
administration. Only if such a power is delegated to the administration then the legislation
will be assumed to fall foul of excessive delegation.
The Pitfalls of Abdication Test
1. If we give uncontrolled power to the legislature then the legislature will delegate any
power to the administrative authority. Which is neither reasonable, fair, just nor
desirable. Then the question arises that whether parliament will repeal the act which is
giving excessive delegation?
2. Under the Indian dispensation parliament and executive are very closely related and
not separable. Executive sits in the parliament. Executive often constitutes majority in
the parliament. In India there are essentially two organs which are Exiculature, a
combination of executive and legislature and Judiciary. In India the Executive is the
 controller of the parliament. Hence it is not very reasonable to expect parliament
which is controlled by the executive to circumscribe the powers of executive by
3. Sovereignty of the people will be compromised because in this case the executive will
become the lawmaker eventhough this power had been given by the populace to the
elected members of the legislature.

MK Papiah v. Excise Commissioner

Kerala State Education Board v. Indian Aluminium Company (1976)

In this case the 5 judge bench followed the policy and guidelines test and overruled the
Papiah Judgement.
Registrar of Co-operative Society
In this case the court without going into the controversy applied the Policy and Guidelines
test. In Madras Act the power was given to the governor to exempt any co-operative
society from application of this law and to apply the law with modifications as he may
deem fit. The court declared the act to be constitutional as guidelines and policy were laid
down by legislature in the preamble of the act which were to
1. Strengthen the co-operative societies so that they can work in an unimpeded
manner to realise the Directive Principles of State Policy
2. To facilitate the formation and working of Cooperative Societies". Cooperative
Societies for the promotion of thrift, self-help and mutual aid among
agriculturists and other persons with common economic needs. To bring
about better living, better business and better methods of production

What cannot be delegated

1. Essential Functions cannot be delegated like laying down the policy of the law.
2. Power to repeal existing lawis legislative power which cannot be delegated.
3. Power of modification w/o any limitation is not allowed
4. Power of exclusion w/o any policy or guideline
5. Power to make rules and regulations with retrospective effect
6. Power of extension of laws which are already laid down can be delegated however the
power to extend any future law amounts to excessive delegation
7. Henry VIII law delegation on the lines of abdication of legislative power by House of
Commons
Jalan Trading Co. v. Mazdoor Sabha
The power was delegated that the govt can make any order for removal of any difficulty for
application of Payment of Bonus Act and such order shall not be amenable to judicial review
this delegation was declared excessive as the power of Judicial Review which is a part of the
basic structure of the constitution cannot be taken away.
Central Inland v Brojo Nath Ganguly
Under this power was given to administrative authority to regulate service of employee and a
rule was framed under which employee had ti give 3 months notice before terminating his
services. This delegation was declared to be unconstitutional for excessive delegation.

Delegation of Taxation Powers

The state has three exclusive powers which are as follows
1. The power of taxation
2. The power of eminent domain
3. The power of policing
In US the Constitution claearly provides that the power to tax exclusive to the legislature.
In UK earlier the power of taxation was unlimited and vested in the king however after
introduction of magna carta the law was laid down that no taxation without representation
circa. This was even reaffirmed by the Settlements Act and the Bill of Rights. Hence even if
the delegation of taxation power is done it should be expressly provided by the parliament.
Attorney General v. Wilks United Dairies
Taxing power cannot be included in the term “regulation of trade”. The Food Controller had
been given power under the Defence of the Realm Acts to regulate milk sales. In granting the
dairy a licence to buy milk in Cornwall, Devon, Dorset and Somerset, the Food Controller
required the Dairy to pay 2d. per imperial gallon of milk purchased from those counties. The
Attorney-General sued for the recovery of the monies which were not paid. The Dairy’s
objection was that the method adopted by the Food Controller was in its nature a tax which
could only be levied or imposed by Parliament. Hence the alw was laid down that the power
of taxation cannot be impliedly authorised.
In India
The Article 265 laid down that the taxes should not be levied except by the authorisation of
law(statute)
The Principles of Delegation in Taxing Powers.
1. Taxing Power is essentially a legislative power and hence it cannot be delegated
however the incidental powers can be delegated
2. The powers given to the administrative authorities in taxing statutes must be strictly
construed (Yaseen v Municipal Corporation)
3. In the beginning the court was of the opinion that the rate at which the tax is to be
levied however later the court insisted that parliament should lay down the minimum
and maximum rates then the delegation if given to responsible and elected body like
municipal corporation. But later the court took the view that since the body is an
elected authority hence it will be expected not to misuse the powers hence wider
powers can be delegated to them.
Avinder Singh v. State of Punjab

MODULE 3
PARLIAMENTARY CONTROL

Responsibilities of Parliamentary Committees

What are Consequences of Non-Laying
If there is the provision in the act and the rules and regulations were not laid in the
parliament. In such cases what is the validity of such rules.
1. Laying is not relevant for the judicial review, Daichi v. Karkaria 2000
2. The consequence of non laying depends on the nature of the provision if the provision
is mandatory and the rules are not laid in the parliament then the rules are not valid
but if the directory then non-laying will have any effect.
In order to find out whether a provision is directory or mandatory. the courts have time again
held that one needs to look at the language of the statute, intention of the legislature, whether
the laying is condition precedent or condition subsequent.
 a. Laying if it is condition precedent then it shall be considered mandatory.
b. Whether the laying is mandatory or directory will depend on the facts and
circumstances of each case
c. Whether the act provides consequences for non-laying. If the act provides the
consequences of non-laying
d. What are the consequences on the general public if the rules and regulations
are declared invalid due to non-laying.
e. Shall does not necessarily mean compulsory and may not obligatory every
time one has to look to the intention which is available from the four corners
of that law
Atlas Cycle Industries v. State of Haryana 1979
Exercising power under Essential Commodities Act the government passed Iron Controls
Order because there was a need of steel for military operations. Under the rules it said that no
one should have the sale and purchase of steel beyond the prices fixed by the government.
Rules also provided for a criminal prosecution if anyone is found trading above the prices
fixed by the government. In investigations it was found out that Atlas Industries violated the
rule and they were prosecuted. There was a laying provision in this act and the rules were not
laid and the FIR was filed against Atlas, the accused company contended that the rules are
invalid due to non laying before the parliament.
The court took the view that the laying was not mandatory because the intention of the law as
evident does not mandate laying of the rules before the house. But it was of the view that the
question is of constitutional importance and and granted the certificate to the appellant to
approach the SC. The SC said that the in this case the laying is simple laying as the act does
not provide any consequence hence the laying is not necessary thus the intention of the
legislation which is visible from the structure of the legislation is that the rule was merely
directory.
1. Subject to condition precedent
2. Presence of any consequence of not following the rules.
3. Look to the structure of the law and find that if the legislation intended to make laying
mandatory or not
4. The use of words “shall” does not amount to a conclusive determination about
5. Look to the Consequences of the striking down the delegated rules on the public
6. Lying would not create any validity for the law. Only because the law has been laid in
the parliament
7. Laying should not be consciously violated.
HPSPCB v. National Electric Hydrpower Corp. 2001
Board imposed a cess and the power was given to the administrative authority to amend the
schedule which laid down the people on which it could be applied, however the power was
subject to laying and it was mentioned that the . In this case the court observed that the laying
is
State of Rajasthan v Mukesh Sharma 2019
There is prison act 1984 under this the govt has the powers to make rules and regulations and
the act lays down that the rules should be laid down before the legislature as soon made. The
rajasthan govt framed shortening of sentences rules. The validity of the rules were
challeanged the court rejected it on two counts.
1.
2.
Narinder Kumar v UOI 2016

It was stated that the rules shall not be applicable if not laid down, the court held that the
rules are
Jaan Mohd v State of Gujarat
The rules framed under APMC Act and the condition was that the rules had to be laid down
in the next session. The court held that the rules were not violated in a conscious manner.
BK Krishna v Managing Committee
Mathura Prasad Yadav v IG Railway Protection Board
The rules were made under the railway protection act and it was laid down that the rules shall
not be operative unless laid on the table of the house and the court held that the laying was
mandatory.
Constitutional Rule making
President’s rule was imposed and some rules were made however the proclamation was not
laid down in the parliament in such cases the rules were also declared void.

CONSULTATIONS WITH THE EFFECTED PERSONS/ CONSULTATION

PROCESS
The main objection against administrative rule making is that it is not made by elected
representatives. How to make administrative rule making democratic? Many times the
legislation may lay down the condition that the rule making should be done by consultations
from the people on whom the rule is supposed to be applied.
What is meaning of Consultation? Consultation is not synonymous to concurrence it simply
means exchange of mutual point of views. The laws must take the view points of the persons
who are to be governed by them. Consultation may be oral(personal hearing, open hearing or
may be hearing to the representatives of the groups) or in writing(Questionaires, proforma)
and it has to be pre-legislative.
There can be two types of hearing
1. Auditive Hearing – the administrative authority needs to merely hear another party.
 2. Adversary Hearing– If the act provides that the commission needs to set the wages, in
such cases the commission is supposed to take decision after taking the taking
evidences from both the parties
3. Interviews of domain experts and their view can be taken into considerations however
they are not binding
4. Seminars
In USA this is the most important method of making the rules more participative and
consultative. In India there can be several types consultations-
1. Consultations with the named body such as banking act provides
2. Consultations can be made by the statutory board- Mining Board,
3. Consultation with the statutory boards in charge of a subject such as the tea boards act
and coffee boards,
4. Consultation with effected persons such as if the govt seeks to establish minimum
wage for coal workers then you can consult with their unions.
5. Preparation of rules by the effected people. Prevention of Accidents in Mines Act
provides that the govt can make rules but the first draft should be prepared by the
Mine Owners and then thereafter govt. has to make rules on basis of that.
HOW THE COURTS CAN EXERCISE THE CONTROL OVER DELEGATION
Judicial Review is the part of the basic structure of the Indian Constitution. In 1951 an
exception was created in form of ninth schedule. In the case of IR Coelho the court held that
the statutes under ninth schedule can be reviewed.

The courts have always taken the view that even if the statute under ninth schedule cannot be
reviewed but the rules and regulations are still amenable to judicial review.
1. Statute is ultra-vires to the Constitution.
a. If it violates express limits of the constitution.
b. Where the cat violates the fundamental rights

Chintaman Rao v State of MP, During agricultural season the labour was engaged in
making of beedis therefore the agriculture suffered. So the govt passed Regulation of
Manufacturing of Beedis under this the powers were delegated to the govt to regulate the
manufacture of beedis, this act was declared unconstitutional

K Parasuram v. State of AP , in this case the govt mandated the shopkeepers to sell certain
commodities and the act was declared to be unconstitutional
c. The law violates separation of powers
Manek Chowk v. Municipal Corp Ahmedabad- Tax was
d. Extra territorial operation
 e. Retrospective Operations
f. Essential Law Making Functions are not to be delegated
Mohini Jain v State of Karnataka
Capitation fees was charged in the medical colleges and govt wanted to prohibit it they
passed Karnataka Education Institution (Prohibition of Capitation) Act in which the
capitation fees was prohibited. In order to determine what is capitation fees the section 2 laid
down that the govt. shall fix a fees and the amount charged over and above that was termed
as capitation fees. In this case the act was declared unconstitutional.
2. Rules and regulations are declared to be unconstitutional
Narendar Kumar v UOI- In this case the court held that the act may be constitutional but
still the rules and regulations can be
Dwarka Prasad v. State of UP
The UP Government passed Coal Act and the Coal controller was given power to regulate
the trade in coal the act was constitutional but the coal control order under which no person
can be engaged in the coal trade unless a license is given to him and the coal controller can
exempt any person from requirement of license.
Himmat Lal v. Commissioner of Police
Bombay legislation passed police act under the act the office of CP was established and he
was given power to regulate the conduct of officers during the processions. Acting under that
power the commissioner passed a rule that no person can take out processions on the street
w/o the permission of the Commissioner
3. Rules and Regulations are ultra vires the enabling act
a. Rules are in excess of the powers delegated by the enabling act
Dwarkanath v Municipal Corporation Delhi
Prevention of food adulteration act was passed and the powers were delegated to the govt to
make the rules in order to make sure that no consumer shall be misled in terms of the quantity
and quality. The rule was framed that the producer would provide that full address in hindi
and English. The rule was declared unconstitutional.
b. Rules are in Direct conflict with the Enabling Act
AK Roy v. State of Punjab
Prevention of Food Adulteration Act was framed by the legislature and the authority was
established named food authority. The act laid down that the prosecution can only be under
the name of the authority. However, the authority framed that the inspector can initiate the
prosecution. In this case the court declared that the rules are in contravention to the enabling
act.
4. Rules and regulations are devoid of any reason and are arbitrary
From the beginning of civilisation the people have always yearned for reason or the
justification of the action. However in the dark ages the reasonableness requirement was
diluted this changed during the renaissance. In 20th century the civilisation moved on to
realism. Right from renaissance the reasonableness has been an important part of
governmental actions. This requirement has also been accepted in the constitution under
Article 14 and 21, where reasonableness and due process has been accepted by the courts as
the basic structure of the constitution.
In the case of England parliament is supreme but even then there is a requirement of
reasonableness from the common law and the principle of rule of law. How do we define
reasonableness. Everything must be decided in the context of realities . they must be decided
on the basis of generalities and not on the freight exceptions.
Associated Provincial Pictures House v. Wensbury (1943)
In this case, England was a very orthodox country and the law was that on Sunday is the day
of Christ and therefore there was no activity done, all cinema houses were to be remained
closed on Sunday. People began discussing that what could be the reason behind it then the
wednesbury municipal authority made the law that cinema houses could be opened on
Sunday but no person below the age of 15 would not be admitted.
1. First thing which has to be considered that whether the administrative authority has
considered all the facts.
2. Whether the authority is motivated by extraneous considerations. and
3. Whether the authority has been when the administrative action is so outrageous and
defies the logic and standard of morality that no man of ordinary intelligence and
prudence could reach to that conclusion on those facts and circumstances.
Manrow v. Watson (1887)
In England there is a tradition that to entertain the people small groups sings songs on the
streets. Municipal Corp makes the rule that no person can sing on the streets w/o the license
from the mayor. The court came to the conclusion that the rule is unreasonable and there was
no reason to regulate something as innocuous.
Ruth v Johnson (1898)
Municipal Corporation made a rule that no person can sing or play instrument on streets
within 15 yards of the residents. It was thought that it had become a nuisance for the residents
of the locality. The court found the rule reasonable because there is a justification which is
disturbance of the residents of the colony near which the band is playing
House of lords laid down parameters for reasonableness
1. When the rule is partial or unequal in operations
2. When the rules and regulations are capricious
3. The rules and regulations are manifestly unjust and inequitable
4. When the rules and regulations are oppressive and burdensome
5. When the rules and regulations gratuitously affecting the rights of people for which
no justification can be found.
6. When the rules are in bad faith and are mala fide
7. When the rules and regulations lack reasonable nexus between means and ends.
(violation of proportionality)
 When you decide the reasonableness then the courts apply the principle of
proportionality by looking at the nexus between means and ends.
Gujrat University v Ranjit Bhatt
Govt passed the legislations to regulate the admissins in the super specialty courses it was
laid down that in the super speciality seats were to be given in following manner
1. First preference should be given to the persons who did the MBBS in the same
college
2. Second preference should be given to students who have done
State of MP v. Chandramohan Singh
The persons in the government service bribe their seniors to suspend them and then he goes
to his village to see if everything is correct. The rule was made that the government officers
would only get the subsistence of Rs. 1 not the one third of salary. The court held that the
rules should be made on generality and not freak exceptions.

ADJUDICATORY POWERS OF ADMINISTRATIVE AUTHORITY

Natural Rights of a man

These laws are universal and form the roots of fair and justice and reasonableness. People
started to realize in the medieval times that these laws are given by the god. Thus the
importance of church was highest in these medieval times. Now it is believed there are
certain fundamentals rules which are based on inherent good sense of man and they are
natural rights of a man. That particular sense can be entrenched into law.
In western society this drama (Antigone) was considered to be the source of natural laws in
India our vedas is considered to be the root of natural law. King issues a decree that polynesis
will be traitor and anybody who catches him shall have the right to kill him and his body shall
not be buried. However, Antigone decides to complete the funeral rites of her brother against
the wishes of king. She believes that no matter how bad a person is he deserves the right to be
buried with dignity. This gave rise to the theory of natural law according to which no human
law should be allowed to violate the tenets of natural law.
In common law world (UK) there is natural justice which provides for the code for
procedural law.
American courts have achieved the natural justice through the principle of due process of
law.
Indian SC opined in ADM Jabalpur Case, that the natural rights can be taken away by the
law. However this is wrong as the human law does not become the threshold on which
natural law is to be judged. It is another way round.
Natural alw and man made law supplement each other. Natural law consists of two things
which are
1. Natural rights of man
2. Natural Justice.-
Reasons of Natural Justice
1. To Bring a level of reasonableness in the acts of administrative authorities.
2. To give rights to the people through establishing procedural safeguards
3. They are ethico-legal principles which are self-evident, are unarguable and are
existing not man made
4. Judges develop these principles as the justice according to law is not justice and it
needs to be filled by these principles
5. They share space with the principle of rule of law. Separation of power, due process,
proportionality and dharma in Indian jurisprudence which brings righteousness. What
spiritualty is to religion natural justice are to administrative actions
6. They humanise administrative actions by bringing fairness to them.
7. Principle of natural justice brings individualisation in the administrative decision
making. Therefore, contextuality is the fundamental basis
8. They are practical and pragmatic principles which can be moulded in order to do
justice. They are not bull in china shop. They are present in the legal system
UOI v. PK Roy
In this case, the court laid down the four factors for applying the natural justice
1. Nature of Administrative action and on this basis will depend the applicability of
natural justice
2. Seriousness of the administrative action.
3. Scheme and policy of the law. If it is punitive or preventive
4. Other relevant circumstances.
To what extent the principles of natural justice will take into consideration the difficulty
in application of these principle. Difficulty in implementation may be ground of diluting
the
UOI v. Bhagwant Singh
When police is filing the closure report is it necessary that the hearing is given to the
person who files the report. The court said that since the difficulties are such which
cannot be surmounted hence they cannot form the
What are the principles of Natural Justice
 1. Rule of Fair hearing- audi alteram partem
2. Rule against bias – no one should be made judge in his own cause. The person
making decision should not be interested nemo judex in causa sua. It is not only
important the the justice is done but it should be seen to be done.
Later the principle of natural justice develops some substantive contents as well.
3. Speaking orders or reasoned decisions. The orders must be supported by reasons and
they must be sufficient.

Where are the principles of Natural Justice attracted

1. They can be attracted in the case where the person suffers any civil consequence, even
in case of any administrative action.
a. Whenever there is violation of your rights in such cases the statute may not
require any duty to act judicially but it is nevertheless applicable.
b. Where a person suffers any pecuniary or non-pecuniary damages. For eg a person
is in a service and the administration decides to withhold his salary then in this
case the principles of natural justice shall be applicable. For Eg- if you are
suffering from some kind of stigma due to the action of administrative action then
in this case the principles of natural justice are applicable.
c. Even when no right of yours is affected but if there is a loss of legitimate
expectation from the administration then administrative authority is under a duty
to act judicially. Legitimate expectation will be created by making a promise ,
announcing a policy. This is the most important development in administrative
law because the government is responsible to people.
SC Welfare Association v. State of Karnataka
Government issued a statement, in which a list was given of colonies that they will be
refurbished in a matter of time and all facilities such as electricity and ration card will be
provided. After a certain period govt. issued another policy statement under which many
colonies which were present in the last statement were dropped.
These colonies have not suffered any loss of rights but of legitimate expectation, the court
held that the even if a person is suffering from a loss of legitimate expectation even after he is
not suffering from any
R v. North and east health authority ex parte coughlam
The respondent, Miss Coughlan, was grievously injured in a road accident in 1971. From the
date of her accident until 1993, she resided in and received nursing care in Newcourt
Hospital. As the facilities in Newcourt Hospital were deemed inadequate for the care of long
term, severely disabled patients, a new hospital called Mardon House in Essex was
established by National Health Service (NHS) to replace Newcourt Hospital. The North and
East Devon Health Authority expressly assured Coughlan and other patients with similar
health conditions that they could live in Mardon "for as long as they chose".
However, in 1996, the Health Authority decided to close Mardon and to transfer the long-
term general nursing care of the applicant to the local authority. The Health Authority
reasoned that the continued provision of the care service to the current residents in Mardon
had become costly, was not financially viable, and resulted in fewer resources for other
services.[2] Although the Health Authority undertook to fund the applicant's care for the
remainder of her life, they did not offer to provide her with a home for life as promised
The respondent, Miss Coughlan, was grievously injured in a road accident in 1971. From the
date of her accident until 1993, she resided in and received nursing care in Newcourt
Hospital. As the facilities in Newcourt Hospital were deemed inadequate for the care of long
term, severely disabled patients, a new hospital called Mardon House in Essex was
established by National Health Service (NHS) to replace Newcourt Hospital. The North and
East Devon Health Authority expressly assured Coughlan and other patients with similar
health conditions that they could live in Mardon "for as long as they chose".[1]
However, in 1996, the Health Authority decided to close Mardon and to transfer the long-
term general nursing care of the applicant to the local authority. The Health Authority
reasoned that the continued provision of the care service to the current residents in Mardon
had become costly, was not financially viable, and resulted in fewer resour ces for other
services.[2] Although the Health Authority undertook to fund the applicant's care for the
remainder of her life, they did not offer to provide her with a home for life as promisedhe
The court held that even though the govt has the right to change the policy but the public
morality demands that the

DIFFERENCE BETWEEN PROMISSORY ESTOPPEL AND LEGITIMATE

EXPECTATION

EXCEPTIONS TO THE PRINCIPLE OF NATURAL JUSTICE

The concept of exception to the principle of natural justice is a misnomer because if natural
justice means fairness and reasonableness then there should not be any exceptions to it. But
the principles of natural justice can be excluded where they are counterproductive.
1. Exclusion in the case of Emergency- this was the point which was argued by the govt
of India. She was to appear before the emergency commission and the govt.
impounded her passport. She challenged it on the ground that no hearing was given to
her. The courts developed the concept of post decisional hearing. Generally, a crude
example is given that suppose there are several houses in a line and fire has started in
them. The fire department is of the view was that next house had to be pulled down to
save the colony. In this case there is emergency hence principle of justice is not
attracted.
2. Process danger- If you give hearing and notice then the whole process becomes
worthless.
Kharak Singh v State of Punjab , every police station maintains a register which
contains the habitual offenders in that thana so that an anonymous watch can be put on
their activity and you can also call them at night they called this surveillance register.
 Name of one person was added he challenged it on the ground that no hearing was given
to him. Court rejected the submission on the ground that the
3. When your rights are not involved and the action is merely administrative. Suppose
university called for certain positions and a selection committee rejects a person then
the there is no reason of notice and hearing. However, in all such cases if your
fundamental rights are violated then the
4. Exclusion in case of impracticability, where the situation is such that it is impossible
to give hearing then you can take action and the principles of natural justice will not
be applicable. In article 311 the constitution institutionalises the principle of natural
justice however it comes with an exception in the name of impracticality.
R Radhakrishnan v Osmania University, there was an MBA examination and the
university inspectors reported mass copying in some centres. The results of these centres
were rejected. The court rejected the challenge on the ground of impracticality.
USA joined the allied forces after Pearl Harbour, American govt decided that all those
Americans who have Japanese ancestry should be taken into detention centres. This was
challenged under the Korematsu v US, in this case the court held that it is very impractical to
ascertain their to the US.
5. Principles of natural justice can be done away with if the administrative action is
interim and preventive in nature. There are certain charges against a DM and therefore
before the enquiry is conducted the govt decides to suspend him w/o giving hearing
pending enquiry the court can take the decision that the decision is only interim and
preventive action from affecting the enquiry in any manner. Therefore, if a person is
suspended pending enquiry.
6. If the administrative authority is exercising a quasi-legislative power.
7. Where no right of the person is violated. For Eg- if a person is appointed as a
professor in probation, in this case the person has no right to continue as the
permanent employee in this case the person can be dismissed w/o following the
principles of natural justice. However, if there is a stigma attached to it then the
principles of natural justice are necessary.
8. Exclusion in case of dire necessity. Doctrine of Necessity it lays down that where
under the law if only one person can take decision. If there is a dispute regarding the
age of a SC judge then the decision has to be taken by the president. In such case if
the president is said to be biased then principles of justice may be done away with.