KLE LAW ACADEMY BELAGAVI

(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College,
Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law
College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)

STUDY MATERIAL
for

ADMINISTRATIVE LAW
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi

Compiled by Reviewed by
Mr. Ayush Jha, Asst. Prof Dr. Manojkumar V Hiremath, Asst. Prof.
Ms. Tilaka N.S., Asst. Prof Mr. Rudragouda H., Asst. Prof.
Ms. Meghana U.V., Asst. Prof Ms. Zeenia S., Asst. Prof.

This study material is intended to be used as supplementary material to the online classes and
recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation
for their examinations. Utmost care has been taken to ensure the accuracy of the content.
However, it is stressed that this material is not meant to be used as a replacement for textbooks
or commentaries on the subject. This is a compilation and the authors take no credit for the
originality of the content. Acknowledgement, wherever due, has been provided.
 TABLE OF CONTENT

SL. NO. PARTICULARS PAGE.NO.

1 Syllabus 4, 5

2 UNIT – I 6-48

3 UNIT – II 49 -112

4 UNIT – III 113-156

5 UNIT – IV 157-230

6 UNIT – V 231-248

BIBLIOGRAPHY 249

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 SYLLABUS
Unit-I

Definition of Administrative Law – Nature and scope – The impact and

implications of the Doctrine of Separation and the Rule of Law on Administrative
Law, Classification of Administrative Action – the necessity

Unit-II

Legislative Power of Administration – Doctrine of Vice of excessive Delegation -

Judicial and Parliamentary control over delegated legislation – Advantages and
disadvantages of delegated legislation – Exclusion of Judicial Review of Delegated
Legislation

Unit-III

Judicial power of Administration – Tests to determine when an administrative

authority required to act judicially - Doctrine of Bias – Doctrine of Audi Altrem
Partem – Reasoned decision – Exceptions to Natural Justice – Effect of non-
compliance with rules of Natural Justice – grounds on which decision of quasi-
judicial authority can be challenged before Supreme Court

Unit-IV

Administrative Discretion - Grant and exercise of discretion - Judicial review of

Administrative Discretion

Control of Administrative Action – Judicial Control – Public Law and Private Law
Remedies – distinction Writs – Theory, Practice and Procedure – ouster clause

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Liabilities of the state in the province of Contract and Tort – Constitutional Tort
Doctrine of Promissory Estoppels – Doctrine of legitimate expectation – Doctrine
of proportionality

Unit-V

Corporates and Public Undertakings – Control of statutory corporations and

public undertakings

- Administrative deviance – Corruption and maladministration – Control

mechanism

Ombudsman in India (Lok pal and Lokayukta) – Central Vigilance Commission –

Parliamentary Committees – Commission of Enquiry

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 UNIT I

 Definition of Administrative Law

 Nature and scope

 The impact and implications of the Doctrine of Separation

 The Rule of Law on Administrative Law

 Classification of Administrative Action

GROWTH OF ADMINISTRATIVE LAW

Administrative law has been characterized as the most outstanding legal

development of the 20th century. It does not mean, however, that there was no
administrative law in any country before the 20th century. Being related to public
administration, administrative law should be deemed to have been in existence in one
form or another in every country having some form of government. It is as ancient
as the administration itself as it is a concomitant of organizedadministration.

The opening statement signifies that administrative law has grown and
developed tremendously, in quantity, quality and a relative significance, in the 20th
century that it has become more articulate and definite as a system in Democratic
countries that it has assumed a more recognizable form in the present century so much
so that it has come to be identified as a branch of public law by itself, distinct and
separate from Constitutional law, if its subject matter is of independent study and
investigation in its own right then rapid growth of administer law in modern times is
the direct result of the growth of administrative powers and functions.

Earlier the state was characterized as the law and order state and its role was
conceived to be negative as its interest extended primarily to defending the country
from external aggression, maintaining law and order within the country, dispensing

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justice to its subjects and collecting a few taxes to finance these activities. It was an era
of free enterprise and minimum governmental responsibility and functions. The
management of social and economic life was not regarded as government
responsibility. This laissez Faire doctrine resulted in human misery.

But all the things changed with the advent of independence. A conscious effort
to begin to be made to transform this country into a welfare state the philosophy of
welfare state has been ingrained in the preamble to Indian Constitution and the
directive principles stated therein. The emergence of the social welfare concept has
affected the democracies very profoundly. It has led to state activism. There has
occurred a phenomenal increase in the area of state operation it has taken over a
number of functions which were previously left to private enterprise. The state today
provides every aspect of human life, the functions of a modern state may broadly be
placed into five categories, the state as protector, provider, entrepreneur, economic
controller and arbitrator.

REASONS FOR GROWTH OF ADMINISTRATIVE LAW

Administrative law is considered as an intensive form of government. It deals with the

pathology of functions. The functions that are discharged by the administrative
authorities differ from time to time depending upon the changes in socio-economic
conditions in any nation.

The following factors are responsible for the rapid growth and development of
administrative law:

1. Laissez Faire to Social Wlefare : There is a radical change in the philosophy as to

the role played by the State. The negative policy of maintaining 'law and order' and of
'laissez faire' is given up. The State has not confined its scope to the traditional and
minimum functions of defense and administration of justice, but has adopted the
positive policy and as a welfare State has undertaken to perform varied functions.

2. Urbanization : Due to the Industrial Revolution in England and other countries and
due to the emergence of the factory system in our country, people migrated from the
countryside to the urban areas in search of employment in factories and large-scale
industries. As a result of which there arose a need for increase in providing housing,
roads, parks, effective drainage system etc. Legislations were enacted to provide all

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these basic facilities and accordingly administrative authorities were required to make
rules and regulations, frame schemes for effective infrastructure and facilities which
ultimately lead to the growth of administrative law.

3. Emergency Situations : Enacting legislations, getting assent from the President is

all a lengthy process, whereas it is very easy and quick to frame schemes and rules to
meet any exigency that arise in a locality. Due to the flexibility of making the rules,
obviously there is a constant growth of administrative law making in the country.

4. Speedy Disposal: The judicial system proved inadequate to decide and settle all
types of disputes. It was slow, costly, inexpert, complex and formalistic. It was already
overburdened, and it was not possible to expect speedy disposal of even very important
matters, e.g. disputes between employers and employees, lockouts, strikes, etc. These
burning problems could not be solved merely by literally interpreting the provisions of
any statute, but required consideration of various other factors and it could not be done
by the ordinary courts of law. Therefore, Industrial Tribunals and Labor Courts were
established, which possessed the techniques and expertise to handle these complex
problems.

5. Pressure on Legislature: The legislative process was also inadequate. It had no

time and technique to deal with all the details. It was impossible for it to lay down
detailed rules and procedures, and even when detailed provisions were made by the
legislature, they were found to be defective and inadequate, e.g., rate fixing. And,
therefore, it was felt necessary to delegate some powers to the administrative
authorities.

6. Experimental: There is scope for experiments in administrative process. Here,

unlike legislation, it is not necessary to continue a rule until commencement of the next
session of the legislature. Here a rule can be made, tried for some time and if it is found
defective, it can be altered or modified within a short period. Thus, legislation is rigid
in character while the administrative process is flexible.

7. Technicalities: The administrative authorities can avoid technicalities.

Administrative law represents functional rather than a theoretical and legalistic
approach. The traditional judiciary is conservative, rigid and technical. It is not possible
for the courts to decide the cases without formality and technicality. The
Administrative Tribunals are not bound by the rules of evidence and procedure and

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they can take a practical view of the matter to decide complex problems.

8. Preventive Measures : Administrative authorities can take preventive measures, e.g.

licensing, rate fixing, etc. Unlike regular courts of law, they need not wait for parties to
come before them with disputes. In many cases, these preventive actions may prove to
be more effective and useful than punishing a person after committing of a breach of
any provision of law or law. As Freeman says, "Meat inspection and grading respond
more adequately to the consumer’s needs than does the right to sue the seller after the
consumer is injured."

9. Effective Steps : Administrative authorities may take effective steps for enforcement
of the aforesaid preventive measures, such as suspension, revocation and cancellation
of licenses, destruction of contaminated articles, etc. which are not generally available
through regular courts of law.

Today in India, the administrative process has grown so much that it will not be out of
place to say that today we are not governed but administered. In this context, the Law
Commission of India rightly observed the Rule of law and Judicial review acquire
greater significance in a welfare state.

The vast amount of legislation which has been enacted during the last three years by
the union and states, a great deal of which impinges in a variety of ways on our lives
and occupations. Much of it also confers large powers on the executive. The greater,
therefore, is the need for ceaseless enforcement of the Rule of law, so that the executive
may not, in a belief in its monopoly of wisdom and its zeal for administrative
efficiency, overstep the bounds of its power and spread its tentacles into the domains,
well the citizen should be free to enjoy the Liberty guaranteed to him by the
Constitution.

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Observations of Law Commission are no less relevant today when India has adopted the
policy of liberalization, privatization and globalization in which administrative law has
developed international dimensions. Thoug
Though
h state is now withdrawing from business, yet its
functions as a facilitator, enabler and regulator are bound to increase. Growth of new centers
of economic power which often exercise power in total disregard of the fundamental rights of
people, especially of the disadvantaged Sections of society, will put emphasis on the
development of knew norms of Rule of law and judicial review for reconciling economic
growth with social justice.

In recent times a new branch of administrative law is emerging, which is popularly called as
Global Administrative Law. According to this the WTO is dictating guidelines on
subsidiaries, facilities and services to the people in different countries. The ban
banks have also
not been spared from the interference of the WTO guidelines. Thus, it may be submitted,

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that due to the emerging global administrative law, in the near future there is every
possibility for the necessity to re look into the reasons for growth of administrative law

DEFINITONS

IVOR JENNINGS

Administrative law as the law relating to administration.

It determines the organization, powers and duties of administrative authorities. This

formulation does not differentiate between Administrative and Constitutional law. It lays
entire emphasis on the organization, power and duties to the exclusion of the manner of their
exercise. For example, administrative law is not concerned with how a minister is appointed
but only with how a minister discharges his functions in relation to an individual or a
group. How the minister of housing and rehabilitation is appointed is not the concern of
administrative law, but when this minister approves a scheme for a new township, which
involves the acquisition of houses and lands of persons living in that area, questions of
administrative law arise. Sir Ivor Jennings formulation also leaves many aspects of
administrative law untouched, especially the control mechanism.

DICEY

He did not recognize the independent existence of administrative law. He defined

administrative law as denoting that portion of a nation's legal system which determines the
legal status and liabilities of all state officials, which defines the rights and liabilities of
private individuals in their dealings with public officials, and which specifies the procedure
by which those rights and liabilities are enforced.

The definition is narrow and restrictive in so far as it leaves out of consideration many
aspects of administrative law, Dicey opposed the French droit administratiff and therefore
his formulation mainly concentrated on judicial remedies against state officials. Therefore,
this definition excludes the study of every other aspect of administrative law.

The American approach is significantly different from the early English approach, in that it
recognized administrative law as an independent branch of the legal discipline.

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According to Kenneth Culp Davis, Administrative law is a law that concerns the powers
and procedure of administrative agencies, including especially the law governing judicial
review of administrative action.

Davis includes the study of administrative rulemaking and rule adjudication but excludes
rule application which according to him, belongs to the domain of public administration. In
one respect, this definition is proper as it puts emphasis on procedure followed by
administrative agencies in exercising their powers. It does not include the enormous mass of
substantive law produced by the agencies. An administrative agency, according to
Davis, is a governmental authority, other than a code and other than a legislative body,
which affects the rights of private parties through either adjudication or rulemaking.

The difficulty in accepting this definition however, is that it does not include many non-
adjudicative and yet administrative functions of the administration which cannot be
characterized as legislative or quasi-judicial. Another difficulty with this definition is that it
puts an emphasis on the control of the administrative functions by the judiciary, but does not
study other equally important controls, example parliamentary control or of delegated
legislation, control through administrative appeals or revisions and the like. Garner also
adopts the American approach advocated by Casey Davis According to him, Administrative
law may be described as those rules which are recognized by the courts as law and which
relate to and regulate the administration of government.

According to Wade, administrative law is the law relating to the control of governmental
power. According to him the primary object of administrative law is to keep the powers of
the government within their legal bounds so as to protect the citizens against their abuse.
Thepowerful engines of authority must be prevented from running amok.

Undoubtedly this definition places considerable emphasis on the object of Administrative

law by touching the heart of the subject. It does not, however, define the subject. It also does
not deal with the powers and duties of administrative authorities nor with the procedure
required to befollowed by them.

Griffith and Street, According to Griffith and Street, the main object of administrative
law is the operation and control of administrative authorities. It must deal with three aspects

1. What sort of power does the administration exercise?

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 2. What are the limits of those powers?

3. what are the ways in which the administration is contained within those
Limits?

According to the Indian law Institute, the following two aspects must be added to have a
complete idea of present-day administrative law

1. what are the procedures followed by the administrative authorities?

2. What are the remedies available to a person affected by administration?

According to Jain and Jain Administrative law deals with the structure, powers and
functions of the organs of administration, the limits of their powers, the methods and
procedures followed by them in exercising their powers and functions, the methods by
which their powers are controlled including the legal remedies available to a person against
them when his rights are infringed by their operation.

Administrative law, according to this definition, deals with four aspects. Firstly, it deals
with composition and the powers of administrative authorities Secondly, it fixes the limits of
the powers of those authorities. Thirdly, it prescribes the procedure to be followed by these
authorities in exercising such powers Fourthly, it controls these administrative authorities
through judicial and other means.

The unenviable diversity in definitions of the term administrative law is also due to the
fact that a vary Administrative law specialist tries to lay more emphasis on any one
particular aspect of the whole administrative process, which according to his own evolution
desires singular attention.

Professor Upendra Bakshi of India lays special stress on the protection of the little man
from the arbitrary exercise of public power. According to him administrative law is a study
of the pathology of power in a developing society. He defines administrative law as that
portion of law which controls the abuse of powers by the administrative authorities so as to
protect the rights of individuals.

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 Mindmap of Defintions on Administrative Law

On an analysis of the above definitions it may be understood that there is no comprehensive

and universally accepted definition of administrative law. for our purposes, we may define
administrative law as that branch of public law which deals with the organization and powers
of administrative and quasi administrative agencies and prescribes principles and rules by
which an official action is arranged and revealed in relation to individual liberty and
freedom.

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Administrative law attempts to regulate administrative space, domestic and global, in order to
infuse fairness and accountability in the administrative process necessary for securing equity
and inclusiveness in the domestic and world order. It can be concluded that administrative
law is that portion of law which determines the organization, powers and duties of
administrative authorities, administrative agencies, quasi administrative authorities and the
law that governs the judicial review of administrative activities.

NATURE AND SCOPE OF ADMINISTRATIVE LAW

Administrative law determines the organization, Power and duties of Administrative

authorities, there have many formulations in the field but none of them is completely
satisfactory ; either they are too broad or too narrow; either they include much more than
what properly should be included in the within the scope of the subject. The recognition of
the Administrative law is on the basis of the formal Judgment based on the principles of the
Natural Justice, efforts have been made and there has been a growth of the Administrative
law with the various processes of administration and control by which it has come into
existence in a welfare state

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.

Administrative law is a law, but it is not a law in the lawyer’s sense of the term like property
law or contract law. It is not in the realist sense of the term which includes statute law,
administrative rulemaking, precedents, customs, administrative directions, etc. It also
includes the study of something which may not be termed law in the true sense of the term
such as administrative circulars, policy statements, memorandum and resolutions, etc.
Besides this, it includes within its study higher law as well, like the principles of natural
justice. However, in India, administrative law, basically and wholly, it remains a judge made
law and, thus, suffers from the frailties and benefits from the strength of judicial lawmaking.
Consequently, personal and institutional constraints make the growth of administrative law
vulnerable to judicial meanderings and tentativeness.

Administrative law is a branch of public law in contradiction to private law which deals with
the relationships of individual’s inter-se. Therefore, Administrative law primarily deals with
the relationship of individuals with the organized power.

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Administrative law deals with the organization and powers of administrative and quasi
administrative agencies. The stress on the study of organization is only to the extent that it is
necessary to understand the powers, characteristics of actions, procedure for the exercise of
those powers and the control mechanism provided therein. The study includes not only
administrative agencies but also the quasi administrative agencies such as corporations,
autonomous agencies, individuals, and civil society institutions, both national and global, and
the like operating in public space and exercising public functions.

Administrative law includes the study of the existing principles and also of the development
of certain new principles which administrative and quasi administrative agencies must follow
while exercising their powers in relation to individuals that is the principles of natural justice,
reasonableness and fairness.

Administrative Law primarily concerns itself with the official action which may be

a. Rulemaking or quasi legislative action

b. Quasi-judicial action
c. Ministerial action or pure administrative action.

One of the main thrusts of the study of administrative law is on the procedure by which the
official action is original. If the means are not trustworthy, the end cannot be just. There is a
bewildering variety in the procedure which the administrative agencies follow in reaching an
action. Such procedure may be laid down.

a. In the statute itself under which the administrative agency has been created
b. In the statute it under which the administrative agency has been created in the
separate procedure code which a very administrative agency is bound to follow that
is Administrative Procedure Act, 1946 in the USA and Tribunals and Inquiries Act,
1958 in England.

However, in many more cases either the administrative agency is left free to develop its own
procedure or it is required to render its actions according to the minimum procedure of the
principles of natural justice. Administrative law also includes within its study the control
mechanism by which the administrative agencies are kept within bounds and made effective
in the service of the individuals. This control mechanism is technically called the review
process.

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The study of administrative law is not an end in itself but a means to an end. The focal point
of the study of administrative law is the re consolation of power with liberty. When the
administrative process started rising after the death of laissez faire at the birth of the 20th
century, the stress on the study of administrative law was on circumscription of
administrative powers. But now when the administrative process has come to stay, the
emphasis has shifted to the regulation of administrative powers.

A satisfactory and a proper formulation to define the scope, content and ambit of
administrative law appears to be as follows:

Administrative law deals with the structure, powers and functions of the organs of
administration, the limits of their powers, the methods and procedures followed by them in
exercising their powers and functions, the methods by which their powers are controlled
including the legal remedies available to a person against them when his rights are infringed
by their operation.

This statement has four limbs

1. The first limb deals with the composition and powers of organs of administration. This
proposition is subject to the qualification stated earlier that the topics falling under the public
administration or to be excluded. The term organs of administration have been used in a
broad sense and include all kinds of public or administrative authorities.

2. The second limb refers to the limits on the powers of administrative authorities. These
limits may either be expressed or implied.

Express limits are laid down in the provisions of the parent statute. Implied limits or derived
by the courts through the interpretative process. In doing so the courts play a very creative
role because expressly limits are not usually laid down in statutory provisions and, therefore,
the courts have to imply some limits on the administration.

3. The third limb refers to the procedures used in exercising those powers. The study of
administrative law of today seeks to emphasize not only the extraneous control but also the
processes and procedures which the administrative authorities themselves follow in the
exercise of their powers. Evolving of fair procedures is a way of minimizing the abuse of vast
discretionary powers conferred on the administration. For example, natural justice forms a

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significant component of administrative process today and in many situations, codes apply
the concept of fairness.

The fourth limb refers to the control of the administration through judicial and other means.
Under this head would fall judicial as well as extra judicial means of controlling the
administration, example Tribunals, Ombudsman etc. It also includes a redressal of individual
grievances against the administration.

This aspect of administrative law is based on two basic postulates, namely

a. Power is conferred on the administration by law

b. No power is absolute and uncontrolled howsoever broad the power conferred.

RULE OF LAW

Rule of Law is a weapon in the armory of Justice. It embodies the doctrine of Supremacy; it
is a basic and fundamental necessity for a disciplined and organized community. It is an
antithesis to autocratic and arbitrary exercise of power by men. The concept of Rule of Law can
be traced from the time of the Romans, who called it ‘Just Law’- Jus Naturale, to the Medieval period
where it was called the ‘Law of God.’ The social contractualists, such as Hobbes, Locke and
Rousseau, called the Rule of Law as the Contract law or Natural Law and the modern man calls it as
Rule of law.

Rule of Law means to the absolute supremacy or predominance of regular law as opposed to
the Influence of arbitrary power and excludes the existence of arbitrariness of prerogative or
even wide discretionary authority on the part of the government. The rule of law is a viable
and dynamic concept and, like many other such concepts, is not capable of any exact
definition. This, however, does not mean that there is no agreement on the basic values which
it represents.

The term rule of law is used in contradiction to “Rule of man and Rule according to the law”.
Even in the most autocratic forms of government there is some law according to which the
powers of the government are exercised, but it does not mean that there is the rule of law.
Therefore, rule of law means that the law rules, which is based on the principles of freedom,
equality, non-discrimination, fraternity, accountability and non-arbitrariness, and is certain,

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regular and predictable, using the word law in the sense of just and Lex both. In this sense the
rule of law is an idea.

In history, man has always appealed to something higher than that which is his own creation
the basic idea behind accountability is that the ruler’s rule without difference of the
people and, therefore, must be accountable to them in the ultimate analysis. Forms of
accountability may differ, but the basic idea must remain the same that the holders of
public power must be able to publicly to justify the exercise of public power not only as
legally valid but also socially just, proper and reasonable. In this manner the concept of the
rule of law represents values and not institutions and connotes a climate of legal order which
is just and reasonable, where in a very exercise of public power is chiefly designed to add
something more to the quality of life of the people.

Every legislative, executive and judicial exercise of power must, therefore, depend on this
ideal for its validity. Consequently, it is the rule of law which defines law rather than the law
defining the Rule of law. Dicey attributed the concept of rule of law was equality before the
law or the equal subjection of all classes to the ordinary law of the land administered by the
ordinary law courts.

Dicey Claimed that Englishmen were ruled by law and law alone; he denied that in Britain
the government was based on exercise by persons in authority of wide, arbitrary or
discretionary powers. In many countries the executive exercised wide discretionary powers. It
was very clear that wherever there was discretion there was room for arbitrariness which led
to insecurity of legal freedom of the citizens.

Equality before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary courts, thesis of dicey had a tremendous impact on the growth
of the administrative law in Britain where people were not ready to accept till very long that
had come in to being there. Dicey misunderstood the real nature of French ‘Droit
Administratiff’ he thought that the system was to protect the officials from the liability for
their acts and such was inferior to the British court. Droit Adminstratiff is in certain respects
more effective in controlling the administration than the common law system.

According to Dicey, the Rule of Law is one of the fundamental principles of the English
Legal System. In his book, ‘The Law of the Constitution’, he attributed the following three
meanings to the said doctrine:

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 I. Supremacy of law
II. Equality before law
III. Predominance of legal spirit.

I. SUPREMACY OF LAW
The Absence of Excessive discretionary power in the hands of the government officials is
needed because it’s the law which shall be supreme By this Dicey implies that justice must be
done through known principles. Discretion implies absence of rules, hence in every exercise
of discretion there is room for arbitrariness.

Explaining the first principle, Dicey stated that rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power or wide
discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide
discretionary power on the part of the Government. According to him the Englishmen were
ruled by the law and law alone. A man may be punished for a breach of law, but can be
punished for nothing else. As Wade says the rule of law requires that the Government should
be subject to the law, rather than the law subject to the Government.

According to this doctrine, no man can be arrested, punished or be lawfully made to suffer in
body or goods except by due process of law and for a breach of law established in the
ordinary legal manner before the ordinary courts of the land. Dicey described this principle as
‘the central and most characteristic feature’ of Common Law.

The first principle is the recognition of Cardinal principle of Democratic governments as

opposed to arbitrary and autocratic governments which lays down that no functionary of the
government should have wide arbitrary or discretionary powers to interfere with the liberty
and freedom of the people. But here Dicey was not referring to a wide measure or discretion
which is incapable in any modern government. He was certainly indicating the position in
some countries where police authorities exercised wide arbitrary or discretionary power of
imprisonment and punishment outside the ordinary legal system.

II. EQUALITY BEFORE LAW

Explaining the second principle of the rule of law, Dicey stated that there must be equality
before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary courts of law. According to him, in England, all persons were

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subject to one and the same law, and there were no separate tribunals or special courts for
officers of the Government and other authorities.

No person should be made to suffer in body or deprived of office, property except for a
breach of law established in the ordinary legal manner before the ordinary courts of the land.
In this sense, the rule of law implies

a. Absence of special privileges for a government official or any other person

b. All the persons irrespective of status must be subjected to the ordinary courts of
the land
c. Everyone should be governed by the law passed by the ordinary legislative organs
of the state

The rights of the people must flow from the customs and traditions of the people recognized
by the courts in the administration of justice.

This principle enunciates Democratic principle of equal subjection of all persons to the
ordinary law of the land as administered by the ordinary courts. This does not mean that the
law must be the same for everybody irrespective of functions or service. Dicey’s insistence
was that a government officer must be under the same liability for acts done without legal
justification as a private individual. Does he contrast the English legal system with that of
France where government officials were protected by special rules in special administrative
tribunals.

III. PREDOMINANCE OF LEGAL SPIRIT

Judge made Constitution explaining the third principle, Dicey stated that in many countries
rights such as the right to personal liberty, freedom from arrest, freedom to hold public
meetings, etc. are guaranteed by a written Constitution; in England, it is not so. Those rights
are the result of judicial decisions in concrete cases which have actually arisen between the
parties. Thus, Dicey emphasized the role of the courts of law as guarantors of liberty and
suggested that the rights would be secured more adequately if they were enforceable in the
courts of law than by mere declaration of those rights in a document, as in the latter case,
they can be ignored, curtailed or trampled upon. He stated: “The Law of the Constitution, the
rules which in foreign countries naturally form part of a Constitutional Code, are not the

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source but the consequences of the rights of individuals, as defined and enforced by the
courts.”

it does not lay down any legal rule but merely explains one aspect of the British
Constitutional system where common law is a source of fundamental freedoms of the people.
He does distinguish the British system from that of many other countries which had written
Constitutions with a chapter on individual rights. Dicey feared that if the source of the
fundamental rights of the people was any document, the right could be abrogated at any time
by Amending the Constitution this is what happened in India during 1975 emergency.

When the Supreme Court ruled that even illegal acts of the government could not be
challenged in a court because it was found that the source of personal liberty in India was
Article 21 of the Constitution, which had been suspended by the presidential proclamation,
and not any common law of the people1. This principle puts emphasis on the role of judiciary
in enforcing individual rights and personal freedoms irrespective of their inclusion in a
written Constitution. Dicey feared that mere declaration of such rights in any statute or in
Constitution would be futile if they could not be enforced. He was right when he said that a
statute or even Constitution can be amended and ‘Fundamental Rights’ can be abrogated. We
have witnessed such a situation during the emergency in 1975 and realized that in absence of
strong and powerful judiciary, a written Constitution is meaningless.

He criticized the French legal system of droit-administratif in which there were distinct
administrative tribunals for deciding cases between the officials of the State and the citizens.
According to him, exemption of the civil servants from the jurisdiction of the ordinary courts
of law and providing them with the special tribunals was the negation of equality. Of course,
Dicey himself saw that administrative authorities were exercising ‘judicial’ functions though
they were not ‘courts’. He, therefore, asserted: “Such transference of authority slaps the
foundation of the rule of law which has been for generations a leading feature of the English
Constitution.”

ANALYSIS ON DICEY’S RULE OF LAW

Administrative law Dicey mean only a single aspect of the French droit administratif, namely
administrative jurisdiction to the exclusion of ordinary civil and criminal process Dicey
admitted after 1901, that he concealed his idea of the nature and existence of administrative
law from De Tocqueville, Who himself later admitted his ignorance about the actual working

23
of the droit administratif, in his own days. Dicey was historically correct up to the time of
1873, when executive law finally settled the jurisdiction of the Council d' Etat in all questions
involving administrative matters.

However, Dicey misconceived the administrative law because he thought that the French
system of administrative law is more than that. In fact, Dicey was concerned not with the
whole body of law relating to administration, but with a single aspect of it, namely,
administrative adjudication. His comparison was between the favorable position of an
Englishman when in conflict with the state in contrast to that of a Frenchman. It may be
emphasized that the difference between judicial and administrative agencies is not
fundamental. Both apply the law to individual cases and thereby exercise discretion. But if
the safeguards which protect the exercise of judicial functions are applied to administrative
bodies, the quality of education will be the same. Dicey was also not right when he said that
there is no administrative law in England because even during Dicey’s time the Crown and its
servants enjoyed special privileges on the basis of the doctrine that the King can do no
wrong.

Even in the sense in which Dicey used his formulation of the rule of law, there is no essential
contradiction between rule of law and administrative law. If the central thesis of Dicey’s
formulation is the absence of arbitrariness and equality before the law then in that sense there
is no contradiction with administrative law.

MERITS

Dicey's thesis has its own advantages and merits. The doctrine of Rule of Law proved to be
an effective and powerful weapon in keeping administrative authorities within their limits. It
served as a touchstone to test all administrative actions. The broad principle of rule of law
was accepted by almost all legal systems as a Constitutional safeguard.

The first principle (supremacy of law) recognizes a cardinal rule of democracy that every
Government must be subject to law and not law subject to the Government. It rightly opposed
arbitrary and unfettered discretion governmental authorities, which has tendency to interfere
with rights of citizens.

The second principle (equality before law) is equally important in a system wedded to
democratic polity. It is based on the well-known maxim -"However high you may be, Law is
above you", and "All are equal before the law."

24
DEMERITS

No doubt, Dicey's Rule of Law had its good points and the broad principle had been accepted
in several legal systems as a ‘necessary Constitutional safeguard’. But it has its own
limitations and pitfalls as well. It has been said that the rules enunciated by Dicey and
accepted in English legal system was the result of ‘political struggle’ and not ‘logical
deductions from a Rule of Law’.

The first rule was criticized on the ground that Dicey equated supremacy of Rule of Law with
absence of not only arbitrary powers but even of discretionary powers. According to him,
‘wherever there is discretion, there is room for arbitrariness.’ He thus failed to distinguish
arbitrary power from discretionary power. Though arbitrary power is inconsistent with the
concept of rule of law, discretionary power is not, if it is exercised properly. No modern
welfare State can work effectively without exercising discretionary powers.

Again, it cannot be said that once law ends, necessarily tyranny begins. As David said,
‘where the law ends, discretion begins.’ Exercise of discretion may mean either beneficence
or tyranny, either justice or injustice, either reasonableness or arbitrariness. It is impossible to
find a government of laws alone and not of men in the sense of eliminating all discretionary
powers.

The second principle propounded by Dicey was equally fallacious. Dicey misunderstood the
real nature of droit administratif. He carried an impression that administrative courts of
France, including Counseild'Etat conferred on Government officials’ special rights, privileges
and prerogatives as against private citizens. But it was not so. The French system in many
respects proved to be more effective in controlling abuse of administrative powers than the
Common Law system. Counseild'Etat technically speaking was a part of administration, but
in substance and in reality, it was very much a court. The actions of administration were not
immune from the judicial scrutiny of the Counsel, which consisted of ‘real Judges’.

Moreover, even during Dicey's time, several administrative tribunals had come into existence
which adjudicated upon the rights of subjects not according to Common Law and procedure
of Crown's Courts but according to special laws applied to specific groups. The Crown
enjoyed immunity under the well-known maxim ‘The King can do no wrong'. It was,
therefore, not correct to say that there was ‘equality before law' in strictosenso even in
England.

25
Administrative law developed not to sanctify executive arbitrariness but to check it and
protect the rights of the people against the administration’s excesses. Therefore, the central
theme of administrative law is also the reconsolation of Liberty with the power.
Administrative law and the rule of law or not discrete series. Both aimed at the progressive
diminution of arbitrariness and fostering a discipline of fairness and openness in the exercise
of public power. However, the disease distrust of the administrative process and
administrative education has been proved wrong in French context, it is still valid in the
Indian situation where administrative action is often arbitrary and based on extraneous
considerations and administrative justice is a euphemism for the denial of justice.

DEVELOPMENTS IN BRITAIN AND AUSTRALIA

a) Developments in Britain
The Administration in Britain was majorly concentrated in the hands of the executive, which
under the rule of law concept doesn’t hold good for governance on people at large. Alarmed
by the large scale assumption of power by the executive Lord Hewart in 1929 in his book,
The New Despotism made a scathing attack on the expansion of administrative powers of
legislation and adjudication and warned that vast opportunities had come in to existence for
misuse of powers by officials, it was very clearly pointed out that the bureaucracy had
become the true rulers of the country.

Donoughmore Committee was appointed in 1929 to consider the powers excercised by the
or under the direction of persons or bodies appointed by ministers of the crown by way of
delegated legislation, judicial and quasi judicial decision and to report what safeguards are
desirable or necessary to secure the constitutional principles of the sovereignity of parliament
and the supremacy of the law. Committee pointed out three main defects in the existing legal
system of Administrative Law.

 Inadequate Provision made for publication and control of subordinate legislation

 The lacuna in the law caused by the inability of a subject to sue the crown in tort
 The Extent to which the control and supervision of administrative decisions were
passing out of the hands of the courts were being Entrusted by the parliament to
specialist tribunals and commissions of Enquiry.
Change was essential to brought in the Britain by setting up of the Tribunals and Enquiry
committee, then occurred the Crichel down affair , a Political scandal of 1954. The Scandal

26
led to Appointment of the Franks committee to look in to the system of the adjudication by
administrative tribunal and enquiries was set up in 1955. After a careful study two things
were pointed before the committee.

Recommendations before the Franks Committee for change in the way of administration are
as follows-

 Establishment of General Administrative Tribunal to hear the appeals from the

tribunal and quasi judicial bodies as well
 Establishment of the new division of the high court called the administrative
discretion to have general appellate jurisdiction.
The Franks committee rejected both the proposals, it concluded that in general the
appropriate appeal structure is a general appeal from a tribunal of first instance to an
appellate tribunal followed by the appeal to the court on points of the law. Whayatt Report
suggested the appointment of an ombudsman in Judicial control of the administrative powers
was not an adequate and that it needed to be supplemented by other Institutional
arrangements

(b) Developments in Australia

The Framework for law and government in Australia is marked by the presence ofa
comprehensive system of administrative law that has largely developed over the three
decades. The Key elements of the system are judicial review by the courts merit review by
the administrative tribunals, investigation and administrative action by the ombudsman and
human rights agencies and the conferral of information and privacy rights under freedom of
information and privacy of the legislation.

The Administrative Decision (Judicial Review) Act, 1977 the power was conferred of judicial
review upon the federal court which itself was established in 1976 by the federal court of
Australia. An administrative review council has also been set up. It is the counterpart of the
British council on tribunals but with much wider terms of reference. The council is thus a
kind of standing body to keep a constant review over the administrative procedure in
Australia.

RULE OF LAW IN INDIA

27
In India, the concept of the rule of law can be traced to the Upanishads. It provides “Law is
the king of Kings. It is more powerful and rigid than Kings. There is nothing higher than law.
By its power the weak shall prevail over the strong and justice shall triumph.”

The concept of rule of law is invoked and often to convey the sense that the administration
cannot exercise arbitrary powers and that it should function according to Law.

The concept of the rule of law is an animation of natural law and remains as a historical ideal
which makes a powerful appeal even today to be ruled by law not by powerful man.

Rule of law mandates that power must be made accountable, governance progressively just
and equal, and state incrementally ethical.

The term rule of law can be used in two senses

1. Formalistic sense

2. Ideological sense

If used in the formalistic sense, it refers to organized power as opposed to a rule by one man
and if used in an ideological sense it refers to the regulation of the relationship of the citizens
and the government and in this sense, it becomes a concept of varied interest and contents.

In its ideological sense, the concept of rule of law represents an ethical code for the exercise
of public power in any country. Strategies of this code may differ from society to society
depending on the societal needs at any given time, but its basic postulates are universal
covering all space and time. These postulates include equality, freedom and accountability.

Equality is not a mechanical under negative concept but has progressive and positive contents
which obliged every government to create conditions; Social, economic, and political, where
every individual has an equal opportunity to develop his personality to the fullest and to live
with dignity.

Freedom postulates absence of a very arbitrary action, free speech, expression and
association, personal Liberty, and many others. These basic rights of any society may be
restricted only on the ground that the claims of these freedoms would be better by such
circumscription.

28
Rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic
features. The necessary element of rule of law is that the law must not be arbitrary or
irrational and it must satisfy the test of reason1 Khanna J, has stated, “rule of law is the antithesis
of arbitrariness. Rule of law is now the accepted norm of all civilized societies2.

Absence of arbitrary power is the first essential of rule of law upon which our whole Constitutional
system is based3. Rule of law may be said to be the sworn enemy of caprice. The Supreme Court put a
stamp of approval on the observations made by Douglas J, “Law has reached its finest moments when
it has freed man from unlimited discretion of some ruler... where discretion is absolute, man has
always suffered and Lord Mansfield who stated in the classic terms, “discretion means sound
discretion guided by law. It must be governed by rule, not humor; it must not be arbitrary, vague and
fanciful.”7

The basic concept of the rule of law is not well-defined legal concept. The courts generally
would not invalidate any positive law on the ground that it violates the contents of the rule of
law.

In ADM Jabalpur v. Shivakanth Shukla,4 popularly known as habeas corpus case, an attempt
was made to challenge their detention orders during the emergency on the ground that it
violates the principles of the rule of law as the 'Obligation to act in accordance with the rule
of law.... a central feature of our Constitutional system and is a basic feature of the
Constitution.' Though the contention did not succeed and some justices even went on to
suggest that during an emergency, the emergency provisions themselves constitute the rule of
law, yet if the reasoning of on the fight opinions is closely read, it becomes clear that the
contention was accepted, no matter it did not reflect in the final order passed by the court.
Therefore, despite the unfortunate order to the effect that the doors of the court during an
emergency are completely shut for the detenus, it is gratifying to note that the concept of the
rule of law can be used as a legal concept.

In Indira Nehru Gandhi v. Raj Narain,5 in which the Supreme Court invalidated clause 4 of
Article 329-A inserted in the Constitution by the 39th Amendment Act 1975. To immunize
the election disputed to the office of the Prime Minister from any kind of judicial review,
Khanna and Chandrachud JJ. held that Article 329 A violated the concept of basic structure.

1
Bachan Singh v. State of Punjab, Air 1982 SC 1325
2
A.D.M. Jabalpur v. Shivakanth Shukla , AIR 1967 SC 207
3
S.G. Jaisinghani v. UOI , AIR 1967 SC 1427
4
A.D.M. Jabalpur v. Shivakanth Shukla , AIR 1967 SC 207
5
AIR 1975 SC 2299

29
It is heartening to see that the courts are making all concerted efforts to establish a Rule of
Law society in India by insisting on fairness in every aspect of the exercise of power by the
state. Some of the recent decisions of the Supreme Court are clear indicators of this trend.

In State of M.P. v. Ramashanker Raghuvanshi, the court secured fairness in public

employment by holding that reliance on police reports is entirely misplaced it in a
Democratic Republic. Thus, Diverts of the courts in here illegitimating undue Powers by
operationalizing substantive and procedural norms and standards can be seen as a high
benchmark of judicial activism for firmly establishing the concept of the rule of law in India.

In Indira Sawhney II v. UOI,6 the Supreme Court criticized the approach of the government and held
that governments today tend to violate rule of law as a matter of political convenience so that burden
of striking down unconstitutional provisions passed to the court. Such an approach of the government
was deprecated

Our Constitution envisages a rule of law and not a rule of men. It recognizes that, howsoever
high one maybe, he is under the law and the Constitution. All the Constitutional functionaries
must, therefore, function within the Constitutional limits. In a system governed by rule of
law, there is nothing like absolute or unbridled power exercisable at the whims and fancies of
the repository power. There is nothing like a power without any limits or constraints. That is
so even when a court or other authority may be vested with wide discretionary power, for
such discretion has to be exercised only along well recognized and sound juristic principles
with a view to promoting fairness, inducing transparency and aiding equity7

Rule of Law doctrine is a complicated and demanding criterion for evaluating the legitimacy
of governance in any state. Nevertheless, it cannot be a ground to ignore it if benefits of a
Constitutional democracy are to be secured for the present and future generations of people.

Recent aggressive judicial activism can only be seen as a part of the efforts of the
Constitutional codes in India to establish a Rule of Law society which implies that no matter
how high a person may be, the law is always above him. Court is also trying to identify the
concept of rule of law with human rights of the people. The court is developing techniques by
which it can force the government not only to submit to the law but also to create conditions
where people can develop capacities to exercise their rights properly and meaningfully. The

6
Indira Sawhney II v. UOI, AIR 2000 SC 498
7
Maya Devi v. Raj Kumari Batra, (2010) 9 SCC 486

30
public administration is responsible for effective implementation of the rule of law and
Constitutional demands which effectuate fairly the objective standards laid down by law
every public servant is a trustee of society and is accountable for due effect creation of
Constitutional goals. This makes the concept of rule of law highly relevant to our context.

Thus, the concept of Rule of Law has all the merits, the only negative side of the concept is
that respect for law degenerates into the legalism from which its very rigidity works injury to
the nation.

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32
SEPERATION OF POWERS

If the rule of law as enunciated by Dicey affects the growth of Administrative law in Britain,
the doctrine of separation of Powers had an intimate impact on the development of
administrative law in the United States.

The Doctrine of Separation of Powers has emerged in several forms at different periods, its
origin is traceable to Plato and Aristotle. In 16th and 17th centuries, French philosopher John
Bodin and British politician. Locke expressed their views about the theory of separation of
powers, it was Montesquieu who for the first time formulated this doctrine systematically,
scientifically and clearly in his book Espirit Des Lois(The Spirit of the Laws), published in
the year 1748.

When the legislative and executive powers are united in the same person, or in the same body
of magistrates, there can be no Liberty; apprehensions may arise, let’s the same monarch are
saying it should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is
no Liberty, if the judiciary power be not separated from the legislative and executive. Where
it joined it without the legislative, the life and Liberty of the subject would be exposed to
arbitrary control; for the judge would be then the legislator. Where it joined to the executive
power, the judge might behave with violence and oppression. There would be an end of
everything, were the same man, or the same body, whether of the nobles or of the people
come out to exercise those three powers, that of executing laws, that of exhibiting the public
resolutions, and of trying the causes of individuals.

IMPORTANCE

The basic purpose of the doctrine of separation of power is to divide governance against itself
by creating a distinct centre of power so that they could prevent each other from threatening
tyranny.

The aim of the doctrine of separation of power is to guard against tyrannical and arbitrary
powers of the state. The rationale underlying the doctrine has been that if all power is
concentrated in one and the same organ or person there would arise the danger that it may
enact tyrannical laws, execute them in a despotic manner, and interpret them in an arbitrary
fashion without any external control.

33
The doctrine of separation of powers is based on four different principles

(a) Exclusivity principle which suggests structural division in all the three organs of state
as it is in the USA

(b) Functional principle which prohibits amalgamation and usurpation but not interaction
of all the organs of state.

(c) Check and balance principle, meaning, thereby, that each organ of state may check
the other to keep it within constitutional bounds.

Mutuality principle which aims at creating Concord not discord, cooperation not
confrontation, engagement not estrangement amongst different organs of state to create a
Society of constitutional image, which is a free, equalitarian, inclusive and the rule of Law
Society.

This doctrine can be further used in two senses

1. Negative sense, in which this doctrine puts limits on the exercise of power by each
organ of state

2. Positive sense in which it not only demarcates limits but also defines the minimum
contents of power within those limits which a court can enforce to achieve
constitutional values.

DOCTRINE OF SEPARATION OF POWERS IN USA

The doctrine of separation of powers is implicit in the American constitution. It emphasizes

the mutual exclusiveness of the three organs of the government. According to this doctrine,
the legislature cannot exercise executive or judicial power, the executive cannot exercise
legislative or judicial power, and the judiciary cannot exercise the other two powers.

The form of government in the USA characterized as the presidential, is based on the theory
that there should be separation between executive and the legislature. This is different from
the system prevailing in Britain or India where the parliamentary form of government
operates and which is based on coordination of the executive and legislature

34
The doctrine of separation has influence over, and has itself been influenced by, the growth
of administrative law in the USA. In the face of new demands on the government to solve we
need complex socio economic problems of the modern society, new institutions have been
created and the new procedures evolved by which the doctrine of separation has been largely
diluted but the character of administrative law itself has been influenced and conditioned to
some extent by this doctrine.

By force of circumstances, administrative law has inevitably grown in the United States, but
the separation doctrine did not generate an attitude of indifference towards it, as happened in
Britain under the spell of the Dicean concept of rule of law. In the USA the attitude was that
of examination and criticism of the advisability and propriety of the new development.

DOCTRINE OF SEPARATION OF POWERS IN UNITED KINGDOM

The United Kingdom does have a kind of separation of powers but unlike the United States it
is informal. Blackstone’s theory of mixer government with checks and balances is more
relevant to the UK separation of powers is not an absolute or predominant feature of the UK
constitution. The three branches are not formally separated and continue to have significant
overlap.

Though No separation of powers in the strict sense of the term exists in England and the US,
it the curious fact is that this doctrine has attracted the makers of most modern constitutions,
especially during the 19th century. Thus, in France, the doctrine has produced a situation in
which the ordinary codes are precluded from revealing the validity not only of legislative
enactments but even of the actions of the administration. The void has been filtered by the
establishment of special administrative quotes.

DOCTRINE OF SEPARATION OF POWERS IN INDIA

In India, the doctrine of separation of powers has not been accorded a Constitutional status. It
has no place in strict sense in the constitution of India. But the functions of different organs
of the government have been clearly marked, so that one organ of the government does not
usurp the functions of another.

On a casual glance at the provisions of the Constitution of India, one may be inclined to say
that the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution,
executive powers are with the President, legislative powers with the Parliament and judicial

35
powers with the Judiciary (Supreme Court, High Courts and subordinate courts). The
President holds his office for a fixed period. His functions and powers are enumerated in the
Constitution itself. Parliament is competent to make any law subject to provisions of the
Constitution and there is no other limitation on its legislative power. It can amend the law
prospectively or even retrospectively but it cannot declare a judgment delivered by a
competent court void or of no effect. The Parliament has also inherited all the powers,
privileges and immunities of the British House of Commons. Similarly, the Judiciary is
independent in its field and there can be no interference with its judicial functions either by
the Executive or by the Legislature. The Supreme Court and High Courts are given the power
of judicial review and they can declare any law passed by Parliament or Legislature ultra
vires or unconstitutional.

In In re Delhi Laws Act case,8 Honorable Chief Justice, Kaniah Observe that although in the
Constitution of India there is no express separation of power, it is clear that a legislature is
created by the constitution and detailed provisions are made for making that legislature
passed laws. Is it then too much to say that under the constitution the duty to make loss, the
duty to exercise its own wisdom, judgment and patriotism in making law is primarily cast on
the legislature, does it not imply that unless it can be gathered from other provisions of the
constitution, other bodies executive or judicial are not intended to discharge legislative
functions.

In the absence of specific provision for separation of powers in our constitution, such as there
is under the American constitution, some such a division of powers legislative, executive and
judicial- is nevertheless implicit in our constitution.9 In the celebrated case of Keshavananda
Bharathi,10 It was observed “Separation of powers between the legislature, executive and the
judiciary is a part of the basic structure of the constitution; this structure cannot be destroyed
by any form of amendment.

In Indira Nehru Gandhi,11 it was observed that in the Indian constitution there is separation
of powers in a broad sense only. No constitution can survive without a conscious adherence
to its fine checks and balances. A rigid separation of powers as under the US constitution or
the Australian constitution does not apply to India.
8
1912, re, AIR 1951 SC 332
9
Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538
10
Keshvananda Bharthi v. State of Kerala, AIR 1973 SCC 1461
11
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

36
In India, not only is there a functional overlapping but there is personal overlapping also.
Taking into account these factors, some jurists are of the opinion that the doctrine of
Separation of Powers has been accepted in the Constitution of India and is a part of the basic
structure of the Constitution. Separation of functions is not confined to the doctrine of
Separation of Powers. It is a part of essential structure of any developed legal system. In
every democratic society, the process of administration, legislation and adjudication are more
clearly distinct than in a totalitarian society.

But if one studies the Constitutional provisions carefully, it is clear that the doctrine of
Separation of Powers has not been accepted in India in its strict sense. There is no provision
in the Constitution itself regarding the division of functions of the Government and the
exercise thereof. Though, under Articles 53(1) and 154(1), the executive power of the Union
and of the States is vested in the President and the Governors respectively, there is no
corresponding provision vesting the legislative and judicial power in any particular organ.
The President has wide legislative powers. He can issue Ordinances, make laws for a State
after the State Legislature is dissolved, adopt the laws or make necessary modifications and
the exercise of this legislative power is immune from judicial review. He performs judicial
functions also. He decides disputes regarding the age of a judge of a High Court or the
Supreme Court for the purpose of retiring him and cases of disqualification of members of
any House of Parliament.

Likewise, Parliament exercises legislative functions and is competent to make any law not
inconsistent with the provisions of the Constitution, but many legislative functions are
delegated to the executive. In certain matters, Parliament exercises judicial functions also.
Thus, it can decide the question of breach of its privilege and, if proved, can punish the
person concerned. In case of impeachment of the President, one House acts as a prosecutor
and the other House investigates the charges and decides whether they were proved or not.
The latter is a purely judicial function.

On the other hand, many powers which are strictly judicial have been excluded from the
purview of courts. Though judiciary exercises all judicial powers, at the same time, it
exercises certain executive or administrative functions also. The High Court has supervisory
powers over all subordinate courts and tribunals and also power to transfer cases. The High
Courts and the Supreme Court have legislative powers, they also frame rules regulating their
own procedure for the conduct and disposal of cases.

37
Thus, the doctrine of separation of powers is not accepted fully in the Constitution of India,
and one may agree with the observations of Mukherjea, J. In Ram Jawaya v. State of
Punjab,12 The Indian Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or branches of the
Government have been sufficiently differentiated and consequently it can very well be said
that our Constitution does not contemplate assumption, by one organ or part of the State, of
functions that essentially belong to another.

DRAWBACKS

Though, theoretically, the doctrine of separation of powers was very sound, many defects
surfaced when it was sought to be applied in real life situations. Mainly, the following defects
were found in this doctrine:

(a) Historically speaking, the theory was incorrect. There was no separation of powers
under the British Constitution. At no point of time, was this doctrine was adopted in
England. As Prof. Ullman says, “England was not the classic home of separation of
powers.” Donoughmore Committee also observed, “In the British Constitution there
is no such thing as the absolute separation or legislative, executive and judicial
powers.”

(b) Doctrine is based on the assumption that the three functions of the Government, viz.
legislative, executive and judicial are independent and distinguishable from one
another. But in fact, it is not so. There are no watertight compartments. It is not easy
to draw a demarcating line between one power and another with mathematical
precision.

(c) It is impossible to take certain actions if this doctrine is accepted in its entirety.
Thus, if the legislature can only legislate, then it cannot punish anyone, committing a
breach of its privilege; nor can it delegate any legislative function even though it
does not know the details of the subject- matter of the legislation and the executive
authority has expertise over it; nor could the courts frame rules of procedure to be
adopted by them for the disposal of cases. Separation of Powers, thus, can only be
relative and not absolute.

12
Ram Jawaya Kapoor v. State of Punjab, AIR, 1955 SC 549

38
The modern interpretation of the doctrine of Separation of Powers means that discretion must be
drawn between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot usurp or
encroach upon the essential functions belonging to another organ, but may exercise some incidental
functions thereof.

The fundamental object behind Montesquieu's doctrine was liberty and freedom of an individual; but
that cannot be achieved by mechanical division of functions and powers. In England, theory of
Separation of Powers is not accepted and yet it is known for the protection of individual liberty. For
freedom and liberty, it is necessary that there should be the Rule of Law and impartial and
independent judiciary and eternal vigilanc
vigilance on the part of the ubjects.

39
In conclusion, doctrine of separation of powers in today’s context of liberalization,
privatization and globalization cannot be interpreted to mean either separation of powers is
checked in balance or principle of restraint, but community of powers exercised in the spirit
of cooperation by various organs of the state in the best interest of the people.

CLASSIFICATION OF ADMINISTRATIVE ACTION

The Classification of the administrative action is the much needed for the good governance.
In Halsbury's Laws of England also, it is stated that howsoever term ‘the Executive’ or ‘the
Administration’ is employed, there is no implication that the functions of the executive are
confined exclusively to those of executive or administrative character.

Today, the executive performs variegated functions, viz. to investigate, to prosecute, to

prepare and to adopt schemes, to issue and cancel licences, (administrative); to make rules,
regulations and bye-laws, to fix prices, (legislative); to adjudicate on disputes, to impose fine
and penalty, etc. (judicial) Schwartz rightly states that rule-making (quasi legislative) and
adjudication (quasi-judicial) have become the chief weapons in the administrative armory.

NEED FOR CLASSIFICATION

A question which arises for our consideration is whether the function performed by the
executive authorities are purely administrative, quasi-judicial or quasi-legislative in character.
The answer is indeed difficult, as there is no precise, perfect and scientific test to distinguish
these functions from one another. Administrative and quasi-judicial decisions tend to merge
in legislative activity and, conversely, legislative activity tends to fade into and present an
appearance of an administrative or quasi-judicial activity. A further difficulty arises in a case
in which a single proceeding may at times combine various aspects of the three functions.
The courts have not been able to formulate any definite test for the purpose of making such
classification.

Yet, such classification is essential and inevitable as many consequences flow from it, e.g. if
the executive authority exercises a judicial or quasi-judicial function, it must follow the
principles of natural justice and is amenable to a writ of certiorari or prohibition, but if it is a
legislative or quasi-legislative function, natural justice has no application. If the action of the
executive authority is legislative in character, the requirement of publication, laying on the
table, etc. should be complied with, but it is not necessary in the case of a pure administrative

40
action. Again, if the function is administrative, delegation is permissible, but if it is judicial, it
cannot be delegated. An exercise of legislative power may not be held invalid on the ground
of unreasonableness, but an administrative decision can be challenged as being unreasonable.
It is, therefore, necessary to determine what type of function the administrative authority
performs.

Classification of Administrative Actions

(a) Legislative Functions- Rule making action or quasi-legislative action-

Legislative power which in administrative law parlance is known as
Delegated Legislation.
(b) Rule decision action or quasi- judicial action- Adjudicative power

(c) Rule-application action or administrative action.

(d) Ministerial action or pure administrative action- Administrative power which

is non - legislative and non-adjudicative power

(a). Legislative Functions

Legislative functions of the executive consist of making rules, regulations, bye-laws, etc. It
is, no doubt, true that any attempt to draw a distinct line between legislative and
administrative functions is difficult in theory and impossible in practice. Though difficult, it
is necessary that the line must be drawn as different legal rights and consequences ensue.

As Schwartz said, “If a particular function is termed ‘legislative’ or ‘rule-making’ rather than
‘judicial’ or ‘adjudication’, it may have substantial effects upon the parties concerned. If the
function is treated as legislative in nature, there is no right to a notice and hearing unless a
statute expressly requires them.”

In the leading case of Bates v. Lord Hailsham, Megarry, J. observed that “the rules of natural
justice do not run in the sphere of legislation, primary or delegated.” Wade also said, “There
is no right to be heard before the making of legislation, whether primary or delegated, unless
it is provided by statute.”

Fixation of price, declaration of a place to be a market yard, imposition tax, establishment of

Municipal Corporation under the statutory provision, extension of limits of a town area
committee, etc. are held to be legislative functions.

41
Rulemaking action of the administration partakes all the characteristics which in normal
legislative action processes. Such characteristics maybe generality, prospectivity, and a
behaviour which basis action on policy consideration and gives a right or a disability. These
characteristics are not without exception.

JUDICIAL FUNCTION

According to the Committee on Ministers’ Powers, a pure judicial function presupposes an

existing dispute between two or more parties and it involves four requisites

1. The presentation (not necessarily oral) of their case by the parties to the dispute;

2. If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced
by the parties to the dispute and often with the assistance of argument by or on behalf of the
parties, on evidence;

3. If the dispute between them is a question of law, the submission of legal argument by the
parties; and

4. A decision which disposes of the whole matter by finding upon the facts in dispute and
‘an application of the law of the land to the facts found, including, where required, a ruling
upon any disputed question of law.’

Thus, these elements are present, the decision is a judicial decision even though it might have
been made by any authority other than a court, e.g. by Minister, Board, Executive Authority,
Administrative Officer or Administrative Tribunal.

The word ‘quasi’ means ‘not exactly.’ Generally, an authority is described as ‘quasi- judicial’
when it has some of the attributes or trappings of judicial functions, but not all. In the words
of the Committee on Ministers’ Powers, “the word ‘quasi’, when prefixed to a legal term,
generally means that the thing, which is described by the word, has some of the legal
attributes denoted and connoted by the legal term, but that it has not all of them” e.g. if a
transaction is described as a quasi-contract, it means that the transaction in question has some
but not all the attributes of a contract.

According to the Committee, a quasi-judicial decision equally presupposes an existing

dispute between two or more parties and involves (1) and (2) above but does not necessarily

42
involve (3) and never involves (4). The place of (4) is, in fact, taken by administrative action,
the character of which is determined the Minister's choice.

For instance, suppose a statute empowers a Minister to take action if certain facts are proved,
and in that event gives him an absolute discretion whether or not to take action. In such a
case, he must consider the representations of parties and ascertain the facts – to that extent the
decision contains a judicial element. But, the facts once ascertained, his decision does not
depend on any legal or statutory direction, for ex hypothesis is he is left free within the
statutory boundaries to take such administrative action as he may think fit: that is to say that
the matter is not finally disposed of by the process of (4) This test has, however, been subject
to criticism by jurists. It does not give a complete and true picture. It is based on a wrong
hypothesis.

The Committee characterized the judicial function as being devoid of any discretionary
power but obliged to merely apply the law to the proved facts. In reality, it is not so. The
courts of law also exercise discretion. It may be more persuasive in administrative actions
than in judicial functions but the difference is of degree only. A quasi-judicial function stands
mid-way between a judicial function and an administrative function. A quasi-judicial
decision is nearer the administrative decision in terms of its discretionary element and nearer
the judicial decision in terms of procedure and objectivity of its end-product.

It is also not true that in all quasi-judicial decisions, two characteristics are common

1. Presentation of their case by the parties; and

2. The decision on questions of fact by means of evidence adduced by the parties.

Firstly, in many cases, the first characteristic is absent and the authority may decide a matter
not between two or more contesting parties but between itself and another party, e.g. an
authority effecting compulsory acquisition of land. Here the authority itself is one of the
parties and yet it decides the matter. It does not represent its case to any court or authority.

Secondly, there may be cases in which no evidence is required to be taken and yet the
authority has to determine the questions of fact after hearing the parties, e.g. ratemaking or
price- fixing. Thirdly, after ascertainment of facts, unlike a regular court, an authority is not
bound to apply the law to the facts so ascertained, and the decision can be arrived at

43
according to considerations of public policy or administrative discretion, which factors are
unknown to an ordinary court of law.

Today the bulk of decisions which affect a private individual come not from codes but from
administrative agencies exercising adjudicatory powers. The reason seems to be that since
administrative decision-making is also a by-product of the intensive form of government, the
traditional judicial system cannot give to the people that quantity and quality of justice which
is required in a welfare state. Administrative decision making may be defined as a power to
perform acts administrative in character comma but requiring incidentally some
characteristics of judicial traditions.

In Ram Jawaya v. State of Punjab,13 the Supreme Court observed, “It may not be possible to
frame an exhaustive definition of what executive function means and implies. Ordinarily the
executive power connotes the residue of governmental functions that remain after legislative
and judicial functions are taken away."

Thus, administrative functions are those functions which are neither legislative nor judicial in
character. Generally, the following ingredients are present in administrative functions:

1. An administrative order is generally based on governmental policy or expediency.

2. In administrative decisions, there is no legal obligation to adopt a judicial approach to the

questions to be decided, and the decisions are usually subjective rather than objective.

3. An administrative authority is not bound by the rules of evidence and procedure unless the
relevant statute specifically imposes such an obligation.

4. An administrative authority can take a decision in exercise of a statutory power or even in

the absence of a statutory provision, provided such decision or act does not contravene
provision of any law.

5. Administrative functions may be delegated and sub-delegated unless there is a specific bar
or prohibition in the statute.

6. While taking a decision, an administrative authority may not only consider the evidence
adduced by the parties to the dispute, but may also use its discretion.
13
Ram Jawaya Kapoor v. State of Punjab, AIR, 1955 SC 549

44
7. An administrative authority is not always bound by the principles of natural justice unless
the statute casts such duty on the authority, either expressly or by necessary implication or it
is required to act judicially or fairly.

8. An administrative order may be held to be invalid on the ground of unreasonableness.

9. An administrative action will not become a quasi-judicial action merely because it has to
be performed after forming an opinion as to the existence of any objective fact.

10. The prerogative writs of certiorari and prohibition are not always available against
administrative actions.

DISTINCTIONS BETWEEN JUDICIAL AND QUASI JUDICIAL FUNCTIONS

A quasi-judicial function differs from a purely judicial function in the following respects

(1) A quasi-judicial authority has some of the trappings of a court, but not all of
them; nevertheless, there is an obligation to act judicially.

(2) A lis inter parties is an essential characteristic of a judicial function, but this may
notbe true of a quasi-judicial function.

(3) A court is bound by the rules of evidence and procedure while a quasi-judicial
authority is not.

(4) While a court is bound by precedents, a quasi-judicial authority is not.

(5) A court cannot be a judge in its own cause (except in contempt cases), while an
administrative authority vested with quasi-judicial powers may be a party to the
controversy but can still decide it.

DISTINCTIONS BETWEEN ADMINISTRATIVE AND QUADI JUDICIAL

FUNCTIONS

Actions of an administrative authority may be purely administrative or may be legislative or

judicial in nature. Decisions which are purely administrative stand on a wholly different
footing from judicial as well as quasi-judicial decisions and they must be distinguished. This
is a very difficult task. “Where does the administrative end and the judicial begin The
problem here is one of demarcation and the courts are still in the process of working it out.

45
To appreciate the distinction between administrative and quasi-judicial functions, we have to
understand two expressions

‘lis’, and‘quasi-Lis’

One of the major grounds on which a function can be called ‘quasi-judicial’ as distinguished
from pure ‘administrative’ is when there is a lis inter parte and an administrative authority is
required to decide the dispute between the parties and to adjudicate upon the lis. Prima facie,
in such cases the authority will regarded as acting in a quasi-judicial manner.

Certain administrative authorities have been held to be quasi-judicial authorities and their
decisions regarded as quasi-judicial decisions, wherein such lis was present, e.g. a Rent
Tribunal determining ‘fair rent’ between a landlord and tenant, an Election Tribunal deciding
an election dispute between rival candidates, an Industrial Tribunal deciding an industrial
dispute, a Licensing Tribunal granting a licence or permit to one of the applicants.

But it is not in all cases that the administrative authority is to decide a lis inter partes. There
may be cases in which an administrative authority decides a lis not between two or more
contesting parties but between itself and another party. But there also, if the authority is
empowered to take any decision which will prejudicially affect any person, such decision
would be a quasi-judicial decision provided the authority is required to act judicially.

Thus, where an authority makes an order granting legal aid, dismissing an employee, refusing
to grant, revoking, suspending or cancelling a licence, cancelling an examination result of a
student for using unfair means, rusticating of a pupil, etc. such decisions are quasi-judicial in
character.

In all these cases there are no two parties before the administrative authority, ‘and the other
party to the dispute, if any, is the authority’ itself. Yet, as the decision given by such authority
adversely affects the rights of a person there is a situation resembling a lis. In such cases, the
administrative authority has to decide the matter objectively after taking into account the
objections of the party before it, and if such authority exceeds or abuses its powers, a writ of
certiorari can be issued against it. Therefore, Lord Greene, M.R. rightly calls it a ‘quasi-lis.’

Duty to act judicially The real test which distinguishes a quasi-judicial act from an
administrative act is the duty to act judicially, and therefore, in considering whether a

46
particular statutory authority is a quasi-judicial body or merely an administrative body, what
has to be ascertained is whether the statutory authority has the duty to act judicially.

The question which may arise for our consideration is as to when this duty to act judicially
arises. As observed by Parker, J. “the duty to act judicially may arise in widely different
circumstances which it would be impossible, and indeed, inadvisable, to attempt to define
exhaustively.”

Whenever there is an express provision in the statute itself which requires the administrative
authority to act judicially, the action of such authority would necessarily be a quasi-judicial
function. But this proposition does not say much, for it is to some extent a tautology to say
that the function is quasi-judicial (or judicial) if it is to be done judicially.

Generally, statutes do not expressly provide for the duty to act judicially and, therefore, even
in the absence of express provisions in the statutes the duty to act judicially should be
inferred from ‘the cumulative effect of the nature of the rights affected, the manner of the
disposal provided, the objective criterion to be adopted, the phraseology used, the nature of
the power conferred, of the duty imposed on the authority and the other indicia afforded by
the statute.

Since ‘fairness in action’ is required from Government and all its agencies, the recent trend is
from ‘duty to act judicially’ to ‘duty to act fairly.’ ‘Duty to act fairly’ is indeed a broader
notion and can be applied even in those cases where there is no lis. It is this concept (‘duty to
act fairly’), which has given rise to certain new doctrines, e.g. ‘fair play in action’, legitimate
expectations, proportionality etc.

CASES

Province of Bombay v. Khushaldas S. Advani was the first leading Indian decision on the
point. Under Section 3 of the Bombay Land Requisition Ordinance, 1947, the Provincial
Government was empowered to requisition any land for any public purpose “if in the opinion
of the Government” it was necessary or expedient to do so. It was contended that the
Government while deciding whether requisition was for a public purpose, had to act
judicially. The High Court of Bombay upheld the said contention. Reversing the decision of
the High Court, the Supreme Court held by a majority that the governmental function of

47
requisitioning property was not quasi- judicial, for the decision was based on the subjective
satisfaction of the Government and it was not required to act judicially.

Similarly, in R. v. Metropolitan Police Commr., ex p. Parker, a cab driver’s licence was

revoked on the ground of alleged misconduct without giving reasonable opportunity to him to
rebut the allegations made against him. The court upheld the order on the ground that the
licence was merely a permission which could be revoked at any time by the grantor, and in
doing so he was not required to act judicially.

Test

No ‘cut and dried’ formula to distinguish quasi-judicial functions from administrative

functions can be laid down. The dividing line between the two powers is quite thin and being
gradually obliterated. For determining whether a power is an administrative power or a quasi-
judicial power, one has to look to the nature of the power conferred, the person or persons on
whom it is conferred, the framework of the law conferring that power, the consequences
ensuing from the exercise of that power and the manner in which that power is expected to be
exercised.

The requirement of acting judicially in essence is nothing but a requirement to act justly and
fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the
exercise of quasi-judicial power are merely those which facilitate if not ensure a just and fair
decision. In recent years, the concept of quasi-judicial power has been undergoing a radical
change. What was considered as an administrative power some years back is now being
considered as a quasi-judicial power. Whether a particular function is administrative or quasi-
judicial must be determined in each case on an examination of the relevant statute and the
rules framed thereunder and the decision depends upon the facts and circumstances of the
case.

At one time prerogative remedies of certiorari and prohibition were confined to ‘judicial’
functions pure and simple of public bodies. They both are now available in relation to
functions which may be regarded as ‘administrative’ or even ‘legislative.’ As it is said, it is
not the label that determines the exercise of jurisdiction of the court but the quality and
attributes of the decision. "On the whole the test of justiciability has replaced that of
classification of function as a determinant of the appropriateness of a decision for judicial
review.”

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 UNIT II

 INTRODUCTION

 DEFINITION

 HISTORICAL DEVELOPMENT OF GROWTH OF DELEGATED

LEGISLATION

 FACTORS (REASONS) FOR GROWTH OF DELEGATED

LEGISLATION

 DELEGATED LEGISLATION IN ENGLAND, USA, INDIA

 CONSTITUTIONALITY OF DELEGATED LEGISLATION

 EXCESSIVE DELEGATION

 FUNCTIONS WHICH MAY BE DELEGATED (PERMISSIBLE

DELEGATION)

 FUNCTIONS WHICH MAY NOT BE DELEGATED (IMPERMISIBLE

DELEGATION)

 TAXING STATUTES

 SUB-DELEGATION

 DELEGATED LEGISLATION (CONTROL AND SAFEGUARDS)

 JUDICIAL CONTROL OVER DELEGATED LEGISLATION

 SUBSTANTIVE ULTRA VIRUS

 PROCEDURAL ULTRA VIRUS

 LEGISLATIVE CONTROL

 OTHER CONTROL

 ADVANTAGES AND DISADVANTAGES OF DELEGATED

LEGISLATION.

49
 INTRODUCTION

Traditionally, the function of the executive is to administer the law enacted by the
legislature, and in an ideal state, legislative power must be exercised exclusively by the
legislators who are directly responsible to the electorate. But a trend very much in vogue at
present in all democratic countries, that of only relatively small parts of the total legislative
output emanating directly from the legislature.
The matter of the fact that apart from ‘pure’ administrative function, the executive
performs many legislative and judicial functions, also the bulk of legislation is promulgated
by the executive as a delegate of the legislature, known as the ‘Delegated legislation’.
In England theoretically, it is only the parliament that can make laws. Looking to the
legislative process however one would see that it is the government that makes the laws
subject to parliamentary control in addition to the common law and statute law the law of
land includes a great deal of what may be termed as subordinate or delegated legislation. It
comprises orders in Council, departmental circulars, rules, regulations, schemes, bye-laws,
etc. made in exercise of statutory powers.
Even in the US where the doctrine of delegated legislation has not been accepted in
theory, under the doctrine of separation of powers in practice the legislature has entrusted
legislative powers to the executive due to several reasons also owing to rapid growth in
administrative legislation.
In India, between 1973 and 1977 the Parliament enacted about 300 statutes but the
total number of statutory rules and orders reached more than 25000. So it has been rightly
said that the delegated legislation is so multitudinous that a statute book would not only be
incomplete but misleading unless it is read along with delegated legislation which amplifies
and supplements the law of the land.

DEFINITION:

There is no precise definition of the expression delegated legislation. It is equally difficult to

state with certainty the scope of such delegated legislation. Bulk of the legislation now is
promulgated by the executive in the form of delegated legislation. The parliament is to
adequately lay down policy and delegate the power to carry out policy within the guidelines
laid down by the legislation.
According to Salmond, it is “that which proceeds from any authority other than sovereign

50
power and is therefore dependent for its continued existence and validity on some superior or
supreme authority”.
Mukherjea says that “delegated legislation is an expression which covers a multitude of
confusion. It is an excuse for the legislators, shield for the administrators and procreation to
the constitutional jurist”.
According to the M P Jain and S N Jain, the term “Delegated legislation” is used in two
senses:

(1) exercise by the subordinate agency of the legislative power delegated to it by the
legislature, or

(2) the subordinate rules themselves which are made by the subordinate agency in pursuance
of the power conferred on it by the legislature.

In its 1st application, it means that the authority exercising the legislative power is
subordinate to the Legislature’s legislative powers and is exercised by an authority other than
the Legislature’s exercise of the powers which rather gets delegated or conferred on them by
the legislature itself. This is known as ‘subordinate legislation’ because the power of the
authority is limited by the statute which conferred such powers and consequently it is valid
only insofar as it keeps within those limits.

2nd connotation the “Delegated legislation” means and includes all rules, regulations,
bye-laws, orders, etc.

In simple words or meaning the expression “Delegated legislation” may be given as

when the function of legislation is entrusted to two organs other than the Legislature itself,
the legislation made by such organs is called, delegated legislation.
Thus, delegated legislation is made by the body or person other than the Parliament
by virtue of powers conferred by the Parliament under any statute. The statute enacted by the
legislature conferring the legislative power upon the executive is known as the ‘Parent Act’
or the primary law, and the rules, regulation, bye-laws, orders, etc. made by the executive in
pursuance of the legislative powers conferred by the legislature are known as ‘Subordinate
Laws’.

51
HISTORICAL DEVELOPMENT

No doubt, the twentieth century has witnessed a rapid growth of delegated legislation
in almost all legal systems of the world. But that does not mean that it is a new phenomenon
or that there was no delegation of legislative power by Legislature to the Executive in the
past. Ever since the statute came to be enacted by Parliament, there was delegation of
legislative function. The statute of 1337 contained a clause that made it a felony to export
wool unless it was ordained by the King and his Council. In the fifteenth and sixteenth
centuries, there was the frequent use of the Henry VIII Clause. The Statute of Sewers of
1531 empowered Commissioners to make, re-make, repeal and amend laws, to pass
decrees, and to levy cess. Thus, the Commissioners used to exercise legislative,
administrative and judicial powers at a time. Mutiny Act, 1717 conferred on the Crown
power to legislate for the Army without the aid of Parliament. In the nineteenth century,
delegated legislation became more common and considerably increased due to social and
economic reforms. In the twentieth century, the output of delegated legislation by the
executive is several times more than the output of enactments by a competent legislature.

REASONS FOR THE GROWTH OF THE DELEGATED LEGISLATION

Many factors are responsible for the rapid growth of delegated legislation in every
modern democratic State. The function of the state has long since ceased to be confined to
preservation of the public peace, the execution of laws and defense of the frontiers. The
functions of the state are now secure and to its citizen’s objectives set in part III and IV of the
Constitution. The desire to achieve these objectives leads to intense legislative activity. The
traditional theory of ‘laissez-faire’ has been given up by every State and the old ‘police
State’ has now become a ‘welfare State.’ Because of this radical change in the philosophy as
to the role to be played by the State, its functions have increased.
The parliament and the state legislatures have neither time nor expertise to deal with
technical and situational intricacies. The parliament and the state legislatures cannot
visualize and provide for new strange, unforeseen and unpredictable situations, arising out of
the complexity of modern life. Consequently, delegated legislation has become essential and
inevitable.

The factors responsible for the growth of the delegated legislation are

52
1. Pressure upon Parliamentary Time

As a result of the expanding horizons of State activity, the bulk of legislation is so great that
the legislature can't devote sufficient time to discuss all the matters in detail (even if the
parliament sits all the 365 days and 24/7, it may not be able to give the quality of the
legislation which is required for the proper functioning of the modern government).
Therefore, the legislature formulates the general policy, ‘the skeleton’ and empowers the
executive to fill in the details by issuing necessary rules, regulations, bye-laws, etc. In the
words of Sir Cecil Carr, delegated legislation is “a growing child called upon to relieve the
parent of the strain of overwork and capable of attending to minor matters, while the parent
manages the main business.”

2. Technicality

Sometimes, the subject-matter on which legislation is required is so technical that the

legislator, being himself a common man, cannot be expected to appreciate and legislate on
the same, and the assistance of experts may be required. Members of Parliament may be the
best politicians but they are not experts to deal with highly technical matters which are
required to be handled by experts. Here the legislative power may be conferred on an expert
to deal with the technical problems, e.g. gas, atomic energy, drugs, electricity, etc.

3. Flexibility

At the time of passing any legislative enactment, it is impossible to foresee all the
contingencies, and some provision is required to be made for these unforeseen situations
demanding exigent action. A legislative amendment is a slow and cumbersome process, but
by the device of delegated legislation, the executive can meet the situation expeditiously, e.g.
bank-rate, police regulation export and import, foreign exchange, etc. for this purpose, in
many statutes, a ‘removal of difficulty’ clause is found empowering the administration to
overcome difficulties by the exercise of the delegated power.

4. Experiment

The practice of delegated legislation enables the executive to experiment. This

method permits rapid utilization of experience and implementation of necessary changes in

53
the application of the provisions in light of such experience, e.g. in road traffic matters, an
experiment may be conducted and in the light of its application, necessary changes could be
made. Delegated legislation thus allows employment and application of past experience.

5. Emergency

In times of emergency, quick action is required to be taken. The legislative process is not
equipped to provide for an urgent solution to meet the situation. Delegated legislation is the
only convenient remedy. Therefore, in times of war and other national emergencies, such as
aggression, breakdown of law and order, strike, bandh, etc. the executive is vested with
special and extremely wide powers to deal with the situation. There was substantial growth
of delegated legislation during the two World Wars. Similarly, in a situation of epidemics,
floods, inflation, economic depression, etc. immediate remedial actions are necessary which
may not be possible by lengthy legislative process and delegated legislation is the only
convenient remedy.

6. Complexity of Modern Administration

The complexity of modem administration and the expansion of the functions of the
State to the economic and social sphere have rendered it necessary to resort to new forms of
legislation and to give wide powers to various authorities on suitable occasions. By resorting
to the traditional legislative process, the entire object may be frustrated by vested interests
and the goal of control and regulation over private trade and business may not be achieved at
all. The practice of empowering the executive to make subordinate legislation within the
prescribed sphere has evolved out of practical necessity and pragmatic needs of the modem
welfare State. Therefore, it’s been the rapid growth in the delegated legislation in all the
countries and it has become indispensable in the modern administrative era.

54
DELEGATED LEGISLATION IN ENGLAND

In England Parliament is sovereign, however, in principle, it is only the Parliament

that can enact laws. But as observed by C. K. Allen, “Nothing is more striking in the legal
and social history of 19th century in England than the development of subordinate
legislation”.
The reasons for the growth of delegated legislation in other countries were equally
responsible for the development of delegated legislation in England. Parliament had no time
to deal with the various matters in detail of complexity, technicality, emergency and
expediency compelling Parliament to delegate its legislative work to the government.
Administrative legislation gradually came to be regarded as justifiable, in principle, it was
realized that legislation and administration one and not two fundamentally different forms of
power.

Test formulated to distinguish legislative and administrative functions proved

insufficient and inappropriate. But at the same time, administrative law had not been
accepted as a developed and recognized branch of law. It was during the two world wars that
there was a tremendous increase in delegated legislation and massive inroads were made into
comparatively personal matters of citizens example housing, education, employment,
pension, health, planning, production, preservation and distribution of essential commodities
social security, etc. In the 18th century, Parliament was obliged to delegate extensive law-
making power in favor of the government. A hue and cry was raised against the growth of
delegated legislation.
Then the matter was referred to the Committee on Ministers Power, known as
Donoughmore Committee in 1929. The committee submitted its report in 1932. It was
observed that the Parliament itself has fully realized how extensive the practice of delegated
legislation has become or the extent to which it has surrendered its own functions in the
process of how easily the practice might be abused but the committee rightly stated that the
system of delegated legislation is both legitimate and Constitutionally desirable for certain
purposes within certain limits and under certain safeguards.

55
DELEGATED LEGISLATION IN THE USA

1. Separation of Powers

This doctrine is recognized by the U.S Constitution and by Article 1 legislative

powers are expressly conferred on the Congress. Article II states that the executive power
shall be vested in the President and under Article III the Judiciary has the power to interpret
the Constitution and declare any statute unconstitutional if it does not conform to the
provisions of the constitution.
In the leading case of Field v. Clark 1892, the US Supreme Court observed that
Congress cannot delegate legislative powers to the President, which is a principle universally
recognized as vital to the integrity and maintenance of the system of government ordained by
the Constitution.

2. Delegatus non protest delegare (a delegate cannot further delegate)

According to this doctrine, a delegate cannot further delegate his power. As the
Congress gets power from the people and is a delegate of the people, in that sense it cannot
further delegate its legislative powers to the executive or to any other agency. A power
conferred upon an agent because of his fitness and the confidence reposed in him cannot be
delegated by him to another as a general and admitted rule. Legislatures stand in this relation
to the people whom they represent.
In practice, it was not possible for the Congress to delegate its legislative powers to
the executive, strict adherence however was not practicable. Governmental functions had
increased and it was impossible for the Congress to enact all the statutes with all particulars.
The Supreme Court could not shut its eyes to this reality and tried to create a balance
between the two conflicting forces: (I) Doctrine of separation of powers barring delegation
and (II) Inevitability of delegation due to the exigencies of the modern Government.

In Panama Refining Company v. Ryan 79 L Ed. 446: 293 US 338 (1934 ), popularly
known as the hot oil case under Section 9(c) of the National Industrial Recovery Act 193 (
NIRA) the President was authorized by the Congress to prohibit the transportation of oil in
interstate commerce in excess of the quota fixed by the state concerned. The policy of the
Act was to encourage National industrial recovery and to foster fair competition. The

56
Supreme Court by the majority held that the delegation was invalid. According to the court,
the Congress had not declared any legislative policy or standard.

In Schechter Poultry Corpn. v. United States 1935 (Sick Chicken Case) the Supreme
Court unanimously struck down Section (3) of NIA Act, 1933 which authorized the
President to approve codes of fair competition and violation thereof was made punishable.
The court held that the discretion of the President was virtually unfettered. And this was
delegation running riot.
After the two cases mentioned above the Supreme Court took a liberal view in many
cases upholding delegation of legislative power. Thus, in National Broadcasting Company v.
United States, 1943 vast powers were conferred upon the Federal Communication
Committee (FCC) to license broadcasting stations under the Communications Act, 1934 the
criterion was “Public Interest, Convenience or Necessity” though it was vague and
ambiguous, the Supreme Court held it to be a valid standard.
Similarly in Yakus v. United States, 1944 under the Emergency Price Control Act,
1942 the price administrator was given the power to fix such maximum price which is “in his
judgment will be generally fair and equitable and will effectuate the purpose of the Act”
administrator was required so far as practicable to give due consideration to the prices
prevailing between 1st October and 15th October 1941 but was allowed to consider a later
date as necessary data were not available and yet the Supreme Court sustained the
delegation, holding that the standards were adequate and as rightly observed by the majority
judgment of sick chickens case was overruled.
The U.S. sentencing commission under the Sentencing Reforms Act 1984: The
guidelines in Mistretta v. United States, 1988 (Mistretta), sentencing guidelines were
promulgated by provided range to determine sentences for categories of offenses and
offenders according to various factors specified by the commission. Mistretta who was
indicated for the sale of cocaine, challenged the guidelines contending that Congress
delegated excessive authority to the commission to structure the guidelines. The Supreme
Court concluded that the contention of the petitioner that the commission had a significant
description in formulating guidelines could not be disputed. It has also the power to
determine which crimes should be punished leniently or severely. But that did not mean that
there was no policy. Congress while conferring power on the commission neither delegated
legislative powers to the executive nor upset the constitutionally mandated balance of
powers among the coordinate branches.

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 In Whitemen v. American Trucking Association, 2001 the legislature delegated
legislative powers to the Environmental Protection Agency (EPA) to promulgate “air quality
criteria” the relevant act or also authorized EPA to review such standard and make such
revisions as may be appropriate. The provision was challenged on the ground of excessive
delegation of Legislative powers to EPA without providing an “intelligible principle” the
court of appeal upheld the contention. The Supreme Court however held the delegation valid
observing that a certain degree of discretion to the agency could be allowed referring to
Mistretta, the court stated that to require the EPL to set quality standards at the level that is
‘requite’ that is not lower or higher than is necessary to protect the public health with an
adequate margin of safety, fits comfortably within the scope of discretion permitted by a
precedent.

From the above decisions, it clearly emerges that the traditional theory has been
given up and the Supreme Court has also adopted a liberal approach. Thus, pragmatic
considerations have prevailed over theoretical objections.

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DELEGATED LEGISLATION IN INDIA.

The discussion can be divided into two stages:

Pre-Constitution Period

R v. Burah,1878 is considered to be the leading authority on the subject the area of

Garro Hills was removed from the jurisdiction of civil and criminal courts and by Section 9
the lieutenant-governor was empowered to extend civil or criminal all or any of the
provisions of the Act applicable to Kashi Janata and Naga Hills in the Garros Hills and to fix
the date of such application. By notification dated 14th October 1871, the Lieutenant
Governor extended all the provisions of the Act to the district of Kashi, Jaintia and Naga
hills. The applicant who was convicted of murder and sentenced to death challenged the
notification.

The High court of Calcutta by the majority upheld the contentions of the appellant
and held that Section 9 of the Act was ultra-virus the powers of the Indian legislature.
According to the court, the Indian legislature was a delegate of Imperial Parliament and
therefore further delegation that is (sub-delegation) was not permissible. On the appeal
Privy Council, it was held that the Indian legislature was not an agent or delegate of the
Imperial Parliament it had plenary powers of legislation as those of the Imperial Parliament
itself. It agreed that the Governor-General in Council could not, by legislation, create a new
legislative power in India not created or authorized by the council’s Act. But in fact, it was
only a case of conditional legislation, as the Governor was not authorized to pass any new
law but merely to extend the provisions of the Act enacted by the competent Legislature
upon fulfillment of certain conditions.

In Jitendra Nath Gupta v. Province of Bihar,1949 the Bihar maintenance of public order
Act 1948 was to remain in force for one year. However the power was conferred on the
provincial government to extend the operation of the Act for a further period of one year by a
majority, of the federal court held that the power to extend the operation of the act beyond
the period of 1 year was a legislative act and therefore, could not be delegated. However, in a
dissenting judgment, Faysal Ali upheld the provision as the extension of the Act, for a
further period of 1 year could not amount to its re-enactment. It nearly amounted to a

59
continuance of the Act for which the maximum period was contemplated by the legislature
itself. It is submitted that the minority view was correct and subsequently in SardarInder
Singh v. State of Rajasthan, 1957 the Supreme Court upheld a similar provision.

Post Constitution Period

In re Delhi Laws Act, case 1951 was the first leading case decided by the Supreme
Court on delegated legislation after the constitution came into force. A reference was made
to the Supreme Court by the President of India under Article 143 of the Constitution. In the
circumstances enumerated therein, Central Government was authorized by Section 2 of the
Part ‘C’ States ‘laws’ Act, 1952 to extend the laws to any part ‘C’ state with such
notifications and restrictions as if thinks fit, any enactment in force in a part a state well
doing so it could repeal or amend any corresponding law “other than a Central Act” which
might be in force in part C state. The Supreme Court was called upon to decide the legality
of the aforesaid provision. All the seven judges who heard by reference gave their separate
opinions “exhibiting a cleavage of judicial opinions” on the question of limits to which the
legislature in India could be permitted to delegate its legislative power.

The majority held the provision valid subject to two limitations:

1. The executive cannot be authorized to repeal a law in force and thus, the provision which
empowers the central government to repeal a law already in force in the part C state was bad.
2. By exercising the power of modification, the legislative policy should not be changed and
thus, before applying any law to the part C state the central government cannot change the
legislative policy.

The importance of Delhi laws case cannot be underestimated, as on the one hand, it
permitted delegation of legislative powers by the legislature to executive while on the other
hand, it demarcated the extent of such permissible delegation of powers by the Legislature.
Principle formulated in this case by the seven judges give their separate opinions many a
time a question is asked whether any principle was formulated by the majority opinion
answer is not simple as there is a difference of opinion amongst jurist on this point. Authors
Jain and Jain are right when they state that on two points there was a similarity in the outlook
evidenced in the opinions. One, keeping the exigencies of the Modern Government in view,
Parliament and state legislature in India need to delegate legislative power if they are to be
able to cope with the multitudinous problems facing the country for it is neither practicable

60
nor feasible to except that each of the legislative bodies could turn out complete and
comprehensive legislation on all subjects that need to be legislated upon. Second, since
legislatures derive their powers from the written Constitution which creates them, they could
not be allowed the same freedom as the British Parliament in the matter of delegation some
limits should be set on their capacity to delegate. The major difficulty was, and it was on this
point that the judges differed where to set the limit and what was the permissible counters
within which and Indian legislature could delegate its legislative powers.

In Hari Shankar Bagla v. State of MP 1955, U/S 3 of the Essential Supplies (Temporary
Powers) Act 1946 the central government was empowered to issue an order for the
regulation of production distribution of essential commodities. By Section 6, it was provided
that the order made under Section 37 have effect notwithstanding anything inconsistent
therewith contained in any enactment other than the Act. Both the Sections were challenged
on the ground of excessive delegation of legislative power. The Supreme Court held that the
object of Section 6 was not to repeal or abrogate any existing law but to bypass the same
where the provisions thereof are inconsistent with the provisions of the Act. The court also
held that the legislative policy was laid down in the Act and there was no excessive
delegation. Thus, a very broad delegation of legislative power was judicially sanctioned.

After the Delhi Laws Act case, in Hamdard Dawakhana v. Union of India, 1960
Supreme Court was probably the first case in which Central Act was held ultra-virus on the
ground of excessive delegation to stop the Drugs and Magic Remedies Objectionable
Advertisements Act, 1954 was enacted by Parliament to control the advertisement of certain
drugs. Section 3 laid down a list of diseases for which advertisement was prohibited and
authorized the central government to include any other disease in the list. The supreme court
held Section 3 as invalid as no criteria, standards, or principles had been laid down therein,
and the power delegated was guided and uncontrolled.
In Gwalior Trade and Silk Manufacturing Company limited v. CST , 1976, under
Section 82 (b) of the Central Sales Tax Act, in 1956 Parliament did not fix the rate of Central
sales tax but adopted the rate applicable to the sale or purchase of goods within the
appropriate state in case such rate exceeded 10%. This Section was challenged on the ground
that parliament in not fixing the rate itself and in adopting the rate applicable within the
appropriate state has not laid down any legislative policy and had have abdicated its a
legislative function.

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 This Section was upheld by all the five judges, observing that sufficient guideline
was provided in the Act by the Parliament but this case is noteworthy for to diverse
approaches adopted by Kanna J. (for three judges) and Justice Mathew (for two judges) in
respect of the following: contention on behalf of sales tax department a pre-emptive
argument was put forward that, while conferring power upon a delegate to make subordinate
legislation, the legislature need not disclose any policy, principle or standard because if the
legislature can prepare can repeal an enactment, as it normally can, it retains sufficient
control over the authorities making the subordinate legislation. Khana J. (For himself,
Alagiriswami and for Justice Bhagwati) rejected the argument and reiterated that the
legislature must lay down policy principles or standards for the guidelines of the delegate.
The rule against excessive delegation of Legislative authorities flows from the
sovereignty of the people. This contemplates that it is not permissible to substitute in the
matter of Legislative policy, review of individual officers or other authorities, however
competent they may be, for that of the popular will as expressed by the representatives of the
people.
The acceptance of the view canvassed by the department would lead to startling
results. If parliament were to enact that, as the crime situation in the country has deteriorated,
criminal law to be enforced in the country it would be such as is framed by an officer
mentioned in the enactment, can it be said that there has been any excessive delegation of
legislative power? to say that if any element does not approve the laws made by the officer
concerned, it can repeal the same or the parent Act is no answer. The delegation Section was
however held valid on the ground that the Act was clearly enacted with a view to preventing
evasion of the payment of Central sales tax.
The conquering judgment of Mathew J (for himself and Ray CJ) accepted the said
argument and observed that delegation involves the granting of discretionary power to
another, but ultimate power always remains with the legislature. What is prohibited is -
application, that is the conferment of arbitrary power by the legislature upon a subordinate
body without reserving for itself control over that body relying upon the decisions in R. v.
Burra and Cobb and Co. Ltd. V. Kropp, Mathew J observed that legislature cannot be said to
abdicate its legislative function if it could at any time repeal the legislation and withdraw the
authority and discretion it had vested in the delegate.

In M. K. Papiah and Sons v. Excise Commr. , Section 22 of The Karnataka Excise

Act, 1966 conferred on the government power to fix the rates of excise duty and Section 71
empowered the government to make rules made under the Act were to be laid before the

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state legislature as soon as practicable after they had been made. Both the Sections were
challenged on the ground of impermissible delegation of legislative power. Mathew J
speaking for unanimous Court of three judges observed that the laying of the rules before the
legislature was a sufficient check on the power conferred on the delegate. The petitioners
thereupon argued that the rules would come into force as soon as they were framed and that
the power of the Legislature to repeal rules subsequently could not be regarded as sufficient
control over delegated legislation. Rejecting this argument, justice Mathew J observed that
considering the compulsions and complexities of modern life such control must be regarded
as sufficient.
This case showed after 25 years of wandering in the legal maze of its own creation,
the Supreme Court of India, like the supreme court of the United States has come round to
the view expressed by the privy council in 1878.
In Hansraj L. Chulani v. Bar Council of Maharashtra and Goa, the State Bar Council
framed a rule as “right to practice” legal profession and disqualified persons if they were
engaged in any other occupation. It was contended by the petitioner who was in the medical
profession that the rule was bad as there was an excessive delegation of Legislative function
by the legislature. However, it was held that the rule effectuated the object, purpose and the
scheme of the Act and provided enough guidelines and was valid.
In St. John Teachers Training Institute v. National Council for Teachers Education
2003 SCC, the Supreme Court emphasized the need and necessity of delegated legislation. It
was observed that the legislature cannot possibly foresee every administrative difficulty that
may arise in operating a statute. Delegated legislation fills those gaps and details. Rules
framed by the executive in exercise of delegated power, however, cannot supplant the law enacted
by the legislature but can supplement it. Delegated legislation made in exercise of power under the
parent Act is supporting legislation and has the force and effect, if validly made, as the Act itself.

In Bombay Dyeing and manufacturing co. Ltd. V. Bombay Environmental Action

Group 2006 SCC, the Supreme Court held that presumption as regards the constitutionality
of a law is available not only in case of law enacted by the Parliament or state legislature but
also in case of delegated legislation.

In M.P. High Court Bar Association v. Union of India 2004 SSC, the Supreme Court
declared that under the Constitution, the power to legislate lies with the legislature. Hence
the power to make laws, cannot be delegated by the legislature to the executive. In other
words, a legislature can neither create a parallel legislature nor destroy its legislative
character. Essential legislative function must be retained by the legislature itself as such

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function consists of the determination of Legislative policy and its formulation as a binding
rule of conduct. But it is equally well-settled that once essential legislative functions is
performed by the legislature and the policy has been laid down, it is always open to the
legislature to dedicate to the executive ancillary and subordinate powers necessary for
carrying out policy and purpose of the Act as may be necessary to make the legislation
complete, effective and useful.

EXCESSIVE DELEGATION

It is well settled that essential and primary legislative function must be performed by the
legislature itself and they cannot be delegated to the executive. Essential legislative functions
consist of the determination of Legislative policy and its formulation as a rule of conduct. In
other words, a legislature has to discharge the primary duty entrusted to it. Once essential
legislative powers are exercised by the legislature, all ancillary and incidental functions can
be delegated to the executive.
As observed in Arvinder Singh v. State of Punjab 1979 SSC, the founding document of
the nation that is the Constitution has created three great instrumentalities and entrusted them
with certain basic powers-legislative, executive and judicial system. Abdication of these
powers by any organ would amount to do betrayal of the Constitution itself and it is
intolerable in law.

Nature and scope

It is accepted that Parliament does not possess legislative power as an inherent and
original power but as power delegated to it by the Constitution. Parliament thus cannot
delegate as it will but is entrusted with a competence that the Constitution obliges it to
exercise itself. It cannot legally delegate its legislative functions to the executive as that
would be unconstitutional. In Great Britain, excessive delegation of parliamentary powers is
a political concern; In the US and in India, it is primarily judicial.

Abdication

Abdication means abandonment. Abdication of sovereignty in favor of executive.

When the legislature does not legislate and entrust the primary function to the executive or to
any outside agency, there is an abdication of legislative power. Abdication may be partial or
total. The power to delegate is subject to the qualifications that the legislature does not

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abdicate or effaces itself by setting up a parallel legislature.
But delegation of legislative power need not necessarily amount to abdication or
complete effacement. What constitutes abdication and what class of cases are covered by
that expression is always a question of fat and it cannot be defined or a rule of universal
application can be laid down.

Principles:

The question whether there is excessive delegation or not has to be examined in the
light of three broad principles:
1. Essential legislative function to enact laws and to determine legislative policy
cannot be delegated.
2. In the context of modern conditions and complexities of situations, it is not
possible for the legislature to enact laws in detail every possibility and make
provisions for them. The legislature, therefore, has to delegate the certain functions
provided it lays down legislative policy.
3. If the power is conferred on the executive in a manner that is lawful and
permissible, the delegation cannot be held to be excessive nearly on the ground that a
legislature could have made more detailed provisions.
Test:

In dealing with the challenge to the vires of any statute on the ground of excessive

delegation, it is necessary to enquire whether the impugned delegation involved the

surrender of essential legislative function and whether the legislature has a left enunciation of
policy and principle to the delegate. If the reply is in the affirmative, there is excessive
delegation but if it is in the negative, the challenge must necessarily fail.

Statute challenged on the ground of excessive delegation must be subjected to two tests:

1. Whether it delegates essential legislative function.

2. Whether the legislature has enunciated its policy and principle for the guidelines of the
executive.
In deciding whether the legislature is enacting statute has exceeded the limits of its
authority to enunciate policy and principle, regards should be had not to mere matters of
form but to the substance of what is done.

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Powers and duties of courts

The founding fathers of the constitution have entrusted the power of legislation to the
representatives of the people so that the power may be exercised not only in the name of the
people but also by the people speaking through their respective representatives. The rule
against excessive delegation thus flows from and it is a necessary postulate of the
sovereignty of the people.
At the same time, however, it also cannot be overlooked that given the multifarious
activities of a modern welfare state, the legislature can hardly find time and expertise to enter
into matters of detail for stock subordinate legislation within a prescribed spear is a practical
necessity and pragmatic need of the day. The principal justification in favor of delegated
legislation is that the legislature is overburdened and the needs of modern-day society are
complex.
The legislature is, thus, unable to foresee administration through delegated
legislation. Delegation of law-making power is a Dynamo of Modern Government. If
legislative policy is enunciated by the legislature and a standard has been laid down, the
court will not interfere with the discretion to delegate non-essential function to the executive.

It is submitted that the following observations of Justice Subbarao in the leading case
of VasanLal Maganbhai Sajanwala v. State of Bombay 1961 laying down correct law on the
point and therefore worth noting. The Constitution confers power and imposes a duty on the
legislature to make laws. The essential legislative function is the determination of the
legislative policy and its formulation as a rule of conduct. It cannot abdicate its functions in
favor of another. But in view of the multifarious activities of a welfare state, it cannot
presumably work out all the details to suit the varying aspects of a complex situation. It must
necessarily delegate the working out details to the executive or any other agency.
But there is a danger inherent in such a process of delegation. And overburdened
legislature for one controlled by a powerful executive may unduly overstep the limits
of

delegation. It may not lay down any policy at all. It may declare its policy in a week and
general terms, it may not set down any standard for the guidance of the executive, it may
confer an arbitrary power on the executive to change or modify the policy laid down by it
without reserving for itself any control over subordinate legislation. This self-effacement of
legislative power in favor of another agency either in whole or in part is beyond the
permissible limits of delegation.

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PERMISSIBLE DELEGATED LEGISLATION.

The following are the permissible delegation:

 Commencement

Several statutes contain an ‘appointed day’ clause, which empowers the Government
to appoint a day for the Act to come into force. In such cases, the operation of the Act
depends on the decision of the Government e.g. Section 1(3) of the Consumer Protection
Act, 1986 provides that the Act ‘shall come into force on such date as the Central
Government may by notification appoint.’ The Legal Services Authorities Act, 1987 was
brought into force only in 1997. Here the Act comes into force when the notification is
published in the Official Gazette. Such a provision is valid for, as Sir Cecil Carr remarks.
“the legislature provides the gun and prescribes the target, but leaves to the executive the
task of pressing the trigger”.

 Supplying Details

If the legislative policy is formulated by the legislature, the function of supplying

details may be delegated to the executive for giving effect to the policy. This is the most
usual form of delegation and is found in several statutes. In all such cases, a legislation
enacted by the Legislature is ‘skeleton legislation’ and the legislature lays down general
principles in the statute. What is delegated here is an ancillary function in aid of the exercise
of the legislative function e.g. Section 3 of the All India Services Act, 1951 authorizes the
Central Government to make rules to regulate conditions of service in the All India Services.
The Committee on Ministers' Powers, however, was conscious of dangers of such
provision and had rightly commented: “The precise limits of the law-making power which
Parliament intends to confer on a Minister should always be defined in clear language by the
statue which confers it; when discretion is conferred its limits, should be defined with equal
clearness.”
 Inclusion & Exclusion

Sometimes, the legislature passes an Act and makes it applicable, in the first instance, to
some areas and classes of persons, but empowers the Government to extend the
provisions thereof to different territories, persons or commodities, etc., e.g., the Transfer
of Property Act, 1882 was made applicable to the whole of India except certain areas,
but the Government was authorized to apply the provisions of the Act to those areas also.

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 Likewise, the Essential Commodities Act, 1955 was made applicable to certain
specified commodities but empowered the Central Government to declare any other
commodity as an ‘essential commodity’ and to make the Act applicable to such
commodities. By Section 146 of the Indian Railways Act, 1890, the Government was
authorized to apply the provisions to tramways.
This device provides flexibility to the law without interfering with legislative policy. In
Hamdard Dawakhana, however, such provision was held ultra-vires.

Exclusion
There are some statutes that empower the Government to exempt from their operation
certain persons, territories, commodities, etc. Section 36 of the Payment of Bonus Act, 1965
empowers the Government to exempt any establishment or a class of establishments from the
operation of the Act. Such provision introduces flexibility in the scheme of the legislation.
The Legislature which is burdened with heavy legislative work is unable to find time to
consider in detail hardships and difficulties likely to result in enforcing the legislation. Such
power can be exercised by the executive in the public interest.
The Minimum Wages Act, 1948 has been enacted as stated in its preamble, “to
provide for fixing minimum wages in certain employments”. The Act applies to employment
mentioned in the schedule, but the government is given the power to add any other
employment thereto and, thus, to extend the Act to that employment. The Act lays down
norms on which government may exercise its power to add any employment to the schedule.
Nevertheless, in Edward Mills Co. v. State of Ajmer AIR 1955, the Supreme Court upheld
the provision arguing that the policy was apparent on the face of the Act which was to fix
minimum wages in order to avoid exploitation of labor in those industries where wages were
very low because of unorganized labor or other causes.

 Suspension

Some statutes authorize the Government to suspend or relax the provisions

contained therein, e.g. under Section 48(1) of the Tea Act, 1953, the Central Government is
empowered under certain circumstances to suspend the operation of all or any of the
provisions of the said Act.

 Application of existing laws

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 Some statutes confer the power on the executive to adopt and apply statutes
existing in other States without modifications (with incidental changes) to a new area. There
is no unconstitutional delegation in such cases, as the legislative policy is laid down in the
statute by the competent legislature.

 Modification

Sometimes, provision is made in the statute authorizing the executive to modify

the existing statute before application. This is really a drastic power as it amounts to an
amendment of the Act, which is a legislative function, but sometimes, this flexibility is
necessary to deal with local conditions. Thus, under the powers conferred by the Delhi Laws
Act, 1912, the Central Government extended the application of the Bombay Agricultural
Debtors’ Relief Act, 1947 to Delhi. The Bombay Act was limited in application to the
agriculturists whose annual income was less than Rs 500 but that limitation was removed by
the Government.
While conferring a power on the Executive to modify a statute, two factors ought to be
considered:

1. The need and necessity of delegating such power, and

2. The danger or risk of misuse of such power by the executive,

It is, therefore, necessary for the legislature to formulate policy in clear and
unambiguous terms before such power is delegated to the administration.

 Prescribing Punishments

In some cases, the legislature delegates to the executive the power to take punitive
action,

e.g. under Section 37 of the Electricity Act, 1910, the Electricity Board is empowered to
prescribe punishment for breach of the provisions of the Act subject to the maximum
punishment laid down in the Act. By Section 59(7) of the Damodar Valley Act, 1948, the
power to prescribe punishment is delegated to a statutory authority without any maximum
limit fixed by the parent Act.
According to the Indian Law Institute, this practice is not objectionable, provided two
safeguards are adopted:

69
 1. The legislature must determine the maximum punishment which the rule-making authority
may prescribe for breach of regulations; and

2. If such power is delegated to any authority other than the State or Central Government,
the exercise of the power must be subject to the previous sanction or subsequent approval of
the State or Central Government.

Framing of Rules

A delegation of power to frame rules, bye-laws, regulations, etc. is not

unconstitutional, provided that the rules, bye-laws and regulations are required to be laid
before the legislature before they come into force and provided further that the legislature
has the power to amend, modify or repeal them.
1. Henry VIII clause (Removal of difficulties): Power is sometimes conferred on the
Government to modify the provisions of the existing statutes for the purpose of removing
difficulties. When the legislature passes an Act, it cannot foresee all the difficulties which
may arise in implementing it. The executive is, therefore, empowered to make necessary
changes to remove such difficulties. Such provision is also necessary when the legislature
extends a law to a new area or to an area where the socio-economic conditions are different.
Generally, two types of ‘removal of difficulties’ clauses are found in statutes.

A narrow one, which empowers the executive to exercise the power of removal of
difficulties consistent with the provisions of the parent Act; e.g. Section 34(1) of the
Administrative Tribunals Act, 1985 reads thus: “If any difficulty arises in giving effect to the
provisions of this Act, the Central Government may, by an order published in the Official
Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it
to be necessary or expedient for removing the difficulty.”
Such a provision is not objectionable. According to the Committee on Ministers’
Powers, the sole purpose of Parliament in enacting such a provision is ‘to enable minor
adjustments of its own handiworks to be made for the purpose of fitting its principles into the
fabric of existing legislation, general or local.’ Sir Cecil rightly says, “the device is partly a
draftsman’s insurance policy in case he has overlooked something, and partly due to the
immense body of local Acts in England creating special difficulties in particular areas.” By
exercising this power, the Government cannot modify the parent Act nor can it make any
modification that is not consistent with the parent Act.
Another type of ‘removal of difficulties’ clause is very wide and authorizes the

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executive in the name of removal of difficulties to modify even the parent Act or any other
Act. The classic illustration of such a provision is found in the Constitution itself. Usually,
such a provision is for a limited period. This provision has been vehemently criticized by
Lord Hewart and other jurists. It is nicknamed the Henry VIII clause to indicate executive
autocracy. Henry VIII was the King of England in the 16th century and during his regime,
he enforced his will and got his difficulties

removed by using the instrumentality of a servile Parliament for the purpose of removing the
difficulties that came in his way. According to the Committee on Ministers' Powers, the King
is regarded popularly as the impersonation of executive autocracy and such a clause ‘cannot
but be regarded as inconsistent with the principle of parliamentary Government.’
In Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha AIR 1967, the Supreme Court was
called upon to decide the legality of such a clause. Section 37(1) the Payment of Bonus Act,
1965 empowered the Central Government to make such orders not inconsistent with the
purposes of the Act, as might be necessary or expedient for the removal of any doubts or
difficulties. The Court by a majority of 3: 2 held Section 37 ultra vires on the ground of
excessive delegation since the Government was made the sole judge of whether an difficulty
or doubt had arisen, whether it was necessary or expedient to remove such doubt or difficulty
and whether the order made was consistent with the provisions of the Act. Again, the order
passed by the Central Government was made ‘final’. Thus, in substance, legislative power
was delegated to the executive authority, which was not permissible.
The minority, however, took a liberal view and held that the functions to be exercised by
the Central Government were not legislative functions at all but were intended to advance
the purpose which the legislature had in mind. In the words of Hidayatullah, J: “Parliament
has not attempted to set up another legislature. It has stated all that it wished on the subject of
bonus in the Act. Apprehending, however, that in the application of the new Act doubts and
difficulties might arise and not leaving their solution to Courts with the attendant delays and
expense, Parliament has chosen to give power to the Central Government to remove doubts
and differences by a suitable order.”
It is submitted that the minority view was correct and after Jalan Trading Co., the
Supreme Court adopted a liberal approach. In Gammon India Ltd. v. Union of India AIR
1974, a similar provision was held constitutional by the Court. Distinguishing Jalan Trading
Co., the Court observed: “In the present case, neither finality nor alteration is contemplated
in any order under Section 34 of the Act. Section 34 is for giving effect to the provisions of
the Act. This provision is an application of the internal functioning of the administrative
machinery.” It, therefore, becomes clear that after Jalan Trading Co., the Court changed its

71
 view and virtually overruled the majority judgment It is submitted that by using a ‘removal
of difficulties’ clause, the Government may slightly tinker with the Act to round off
irregularities and smoothen the joints or

remove minor obscurities to make it workable, but it cannot change or disfigure the basic
structure of the Act.
In no case can it, under the guise of removing a difficulty, change the scheme and
essential provisions of the Act. The Committee on Ministers' Powers rightly opined that it
would be dangerous in practice to permit the executive to change an Act of Parliament and
made the following recommendation: ‘The use of the so-called Henry VIII clause conferring
power on a Minister to modify the provisions of Acts of Parliament should be abandoned in
all but the most exceptional cases and should not be permitted by Parliament except upon
special grounds stated in a ministerial memorandum to the Bill. Henry VIII clause should
never be used except for the sole purpose of bringing the Act into operation but subject to the
limit of one year.”

FUNCTIONS WHICH CANNOT BE DELEGATED (IMPERMISSIBLE

DELEGATION)

The following functions shall not be delegated by the legislature to the executive on the other
hand
(a) Essential legislative functions

Even though there is no specific bar in the Constitution of India against the
delegation of legislative power by the legislature to the executive, it is now well-settled that
essential legislative functions cannot be delegated by the legislature to the executive. In other
words, legislative policy must be laid down by the legislature itself and by entrusting this
power to the executive; the legislature cannot create a parallel legislature.

(b) Repeal of law

Power to repeal law is essentially a legislative function, and therefore, delegation

of power to the Executive to repeal a law is excessive delegation and is ultra vires.
(c) Modification

Power to modify the Act in its important aspects is an essential legislative function
and, therefore, delegation of power to modify an Act without any limitation is not
permissible. However, if the changes are not essential in character, the delegation is

72
 permissible.
(d) Exemption

The aforesaid principle applies in case of exemption also, and the legislature cannot
delegate the power of exemption to the executive without laying down the norms and policy
for the guidance of the latter.
(e) Removal of difficulties

Under the guise of enabling the executive to remove difficulties, the legislature
cannot enact a Henry VIII clause and thereby delegate essential legislative functions to the
executive, which could not otherwise have been delegated.
(f) Retrospective operation

The legislature has plenary power of lawmaking and in India, Parliament can pass
any law prospectively or retrospectively subject to the provisions of the Constitution. But
this principle cannot be applied in the case of delegated legislation. Giving an Act
retrospective effect is essentially a legislative function and it cannot be delegated.

g) Future Acts

The legislature can empower the executive to adopt and apply the laws existing in
other States, but it cannot delegate the power by which the executive can adopt the laws
which may be passed in the future, as this is essentially a legislative function.
(g) Imposition of Taxes

The power to impose a tax is essentially a legislative function. Under Article 265 of
the Constitution, no tax can be levied or collected save by authority of law, and here ‘law’
means a law enacted by the competent legislature and not made by the executive. Therefore,
the legislature cannot delegate the essential legislative function of the imposition of a tax to
executive authority.
(h) The ouster of jurisdiction of courts

The legislature cannot empower the executive by which the jurisdiction of courts may be
ousted. This is a purely legislative function.
(i) Offenses and Penalty

The making of a particular act into an offense and prescribing punishment for it is an
essential legislative function and cannot be delegated by the legislature to the executive.
However, if the legislature lays down the standards or principles to be followed by the
executive in defining an offense and provides the limits of penalties, such delegation is

73
permissible.

TAXING STATUTES

CONSTITUTIONALITY OF DELEGATION OF TAXING POWER

The power to tax is an inherent power of any state. It is also considered as an

essential legislative function. Power to tax can be exercised not only for raising revenue of
the state but also for regulating the social, economic and political structure of the country.
Therefore, the delegation of taxing power by the legislature deserves special attention to stop
the permissible limits of valid legislation of taxing power can be comprehended by analyzing
the following decisions of the Supreme Court.

1. Orient Wvg. Mills Private Ltd. v. Union of India AIR1963 SC in this case the supreme
court upheld the constitutionality of the delegation of power to the government to exempt
any exercisable item from the duty.
2. Banarasi Das Bhanot v. State of M. P. AIR 1958 SC, the delegation of power to the
government to bring certain sale transactions under the Central Provinces and Berar Sales
Tax Act,1947 was held against the challenge of excessive delegation
3. Devi Das v. State of Punjab 1967 SC the delegation of power to the executive to
determine the rate of tax between the maximum and minimum laid down in the enabling Act
was upheld. The terminal tax on Railway passengers Act, 1958 authorized the executive to
import sales tax at a rate between 1% to 2% the court held that the discretion in fixing the tax
rate is too limited to hold it to the excessive delegation.
4.MCD v. Birla cotton spinning and weaving Mills AIR 1968 SC in this case power
delegated to the corporation to impose electricity tax without prescribing any maximum limit
was held on the ground that the corporation is also a representative and responsive body
which stands a guarantee against the misuse of power.
5.Corpn.of Calcutta v. Liberty Cinema AIR 1965 in the same manner, in this case, the
constitutionality of the delegation of power to the corporation to levy a license fee on cinema
at such a rate as may be prescribed by the corporation was upheld.
6.Cantonment Board v. Western Indian theatres Ltd. AIR 1954 the power given to the
corporation (of the city of Pune), in terms very wide, to levy “any other tax” came to be
considered from the point of view of abdication of Legislative function. The negation of this
argument was based on the keywords of limitation contained therein namely “for the purpose
of the Act”, and it was held that this provides sufficient guidelines for the imposition of the
tax.

74
7. Jullunder Rubber Goods Manufacturers Association v. Union of India 1969 SCC, the
court, in this case, upheld the constitutionality of Section 12 of the Rubber Act, 1947 which
empowered the rubber board to levy an excise duty either on producers of rubber or the
manufacturers of rubber goods. The Court negatived the challenge of excessive delegation
on the ground of inherent checks on the exercise of such power, namely, the representative
character of the board and the control of the Central Government. The Act had provided that
tax can be levied only according to the rules made by the government subject to the laying
procedure.
The Supreme Court in Darshan Lal Mehra v. Union of India 1992 SCC held that
Section 172 (2), U P Nagar Mahapalika Adhiniyam, 1959 as constitutional. This Section had
authorized the municipalities to impose tax mentioned in the Act “for the purpose of Act”.
The court held that the words “for the purpose of the Act” lays down sufficient policy for the
guidelines of the municipalities to impose tax and, therefore, so long as the tax has a
reasonable relation to the purpose of the Act, the same cannot be held to be excessive
delegation. It may be pointed out that even in the USA, courts have made an exception in
favor of municipality on the question of the constitutionality of delegated legislation.

75
With regard to delegation in taxing legislation, the following principles may be treated as
well settled principles.
1. The power to impose a tax is essentially a legislative function. Under Article 265 of the
Constitution no tax can be levied or collected saved by the authority of law and here law
means law enacted by the competent legislature and not made by the executive.
Therefore, the legislature cannot delegate the essential legislative function of the
imposition of tax to an executive authority.
2. Subject to the above limitation, power can be conferred on the government to exempt a
particular commodity from the levy of taxes. Power may also be delegated to bring
certain commodities under the levy of tax.
3. The power to fix the rate of tax is a legislative function, but if the legislative policy has
been laid down, the said power can be delegated to the executive.

4. It is open to the legislature or executive to select different rates of tax for different
commodities.
5. Commodities belonging to the same category should not, however, be subjected to
different and discretionary rates in the absence of any rational basis.
6. The needs of the taxing body are not a test for determining whether the guidelines, was
furnished by the legislature in exercising a power of tax.
7. The circumstances that the affairs of the taxing body (panchayats, municipality,
corporations etc.) are administered by the elected representatives responsible to the
people is wholly irrelevant and immaterial in determining whether the delegation
legislation is excessive or otherwise.
8. The taxing statute should be construed strictly. If a provision is ambiguous, the
interpretations that favor the assesses should be accepted.
9. A distinction, however, should always be made between charging provisions and
machinery provision. Machinery provisions should be construed liberally so as to make
charging provisions effective and workable.
10. General principles of delegated legislation applied to taxing statutes also.

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SUB-DELEGATION

When a statute confers some legislative powers on executive authority and the
latter further delegates those powers to another subordinate authority or agency, it is called
‘sub-delegation.’ The rule-making authority delegates to itself or to some other subordinate
authority a further power to issue rules, such exercise of rule-making power. Thus, in sub-
delegation, a delegate delegates further. This process of sub-delegation may go through
many stages.

Rule-making authority cannot delegate power unless such power of delegation is

contained in the enabling Act. Such authorization may be either express or by necessary
implication. Maxim ‘delegatus non potest delegare’ indicates that sub-delegation of power is
normally not allowable, though the legislature can always provide for it. If the authority
further delegates its law-making power to some other authority and retains a general control
of a substantial nature over it, there is no delegation as to attract the doctrine of ‘delegatus
non potest delegare.’ The maxim was originally invoked in the context of delegation of
judicial powers and implied that in the entire process of adjudication, a judge must act
personally except in so far as he is expressly absolved from his duty by a statute. Sub-
delegation in very wide language is improper and some safeguard must be provided before
the delegate is allowed to sub-delegate his power.
An important illustration of sub-delegation is found in the Essential Commodities
Act, 1955. Section 3 of the Act empowers the Central Government to make rules. This can be
said to be the first-stage delegation. Under Section 5, the Central Government is empowered
to delegate powers to its officers, the State Governments and their officers. Usually, under
this provision, the powers are delegated to State Governments. This can be said to be the
second-stage delegation (sub-delegation). When the power is further delegated by State
Governments to their officers, it can be said to be the third-stage delegation (sub-sub-
delegation). Thus, under Section 3 of the Essential Commodities Act, 1955, the Sugar
Control Order, 1955 was made by the Central Government (first-stage delegation). Under the
Order, certain functions and powers are conferred on the Textile Commissioner (second-
stage delegation). Clause 10 empowered the Textile Commissioner to authorize any officer
to exercise on his behalf all or any of his functions and powers under the Order (third-stage
delegation).

77
The necessity of sub-delegation is sought to be supported, inter alia, on the following:

1. Power of delegation necessarily carries with it the power of further delegation; and

2. Sub-delegation is ancillary to delegated legislation.

3. Any objection to the said process is likely to subvert the authority which the legislature
delegates to the executive.
Sub-delegation of legislative power can be permitted either when such power is expressly
conferred by the statute or may be inferred by necessary implication.

Express Power

Where a statute itself authorizes an administrative authority to sub-delegate its

powers, no difficulty arises as to its validity since such sub-delegation is within the terms of
the statute itself. Thus, in Central Talkies Ltd. v. Dwarka Prasad, the U.P. (Temporary)
Control of Rent and Eviction Act, 1947 provided that no suit shall be filed for the eviction of
a tenant without permission either of a District Magistrate or any officer authorized by him
to perform any of his functions under the Act. An order granting permission by the Addl.
District Magistrate to whom the powers were delegated was held Valid.
On the other hand, in Allingham v. Minister of Agriculture and fisheries, AIR 1948
under the relevant statute, the committee was empowered by the Ministry of Agriculture to
issue directions. The committee Sub-delegated its powers to it subordinate officer, who
issued a direction that was challenged. The court held that Sub delegation of power by the
committee was not permissible and the direction issued by the subordinate officer was there
for ultra-virus.
Similarly, in Ganpati Singhji v. State of Ajmer, AIR 1955 the parent Act empowered
the chief commissioner to make rules for the establishment of a proper system of
conservancy and sanitation at fairs. The rules made by the Chief Commissioner, however,
empowered the district magistrate to devise his own system and see that it was observed.
Supreme Court declared the rules ultra-virus has the parent Act conferred the power on the
Chief Commissioner and not on the District Magistrate and therefore the action of the chief
commissioner sub-delegating that power to district magistrate was invalid.
In A K Roy v. State of Punjab, AIR 1986 the power to prosecute under the Prevention
of Food Adulteration Act, 1954 was conferred on the State Government. The State
Government in the exercise of delegated legislation namely Prevention of Food Adulteration
78
delegated the said power to food authority. The Food authority by issuing a notification sub-
delegated the power to Food Inspector, who prosecuted the accused. The Supreme Court
held that sub-delegation unauthorized and squashed the notification. “Sometimes, statues
permit sub-delegation to authorities or officers not below a particular rank or in a particular
manner only. As per settled law if the statute direct that certain acts shall be done in a
specified manner or by a specified for certain person performance in any other manner then
the specified or by any other person that one of those named is impliedly prohibited”.
In other words, where power is given to do a certain thing in a certain way, the thing
must be done in that way or not at all.
In Ajaib Singh v. Gurbachan Singh AIR, 1965 under the relevant statute the
Central Government was empowered to make rules for the detection of any person by an
authority, not below the rank of District Magistrate. Where the order of detention was passed
by an Additional District Magistrate the action was held bad again. Where the law lays down
Mode, Manner or method of exercise of the power of sub-delegation, it would be exercised
by the said mode itself. Thus, if sub-delegation is to be made through regulations, it cannot
be affected by passing a resolution.
In Barium Chemicals Limited v. Company Law Board AIR, 1967 the rules framed by
the Central Government empowered the chairman to distribute the business of the board
among himself as well as other members. The chairman passed an order vesting certain
powers in him alone the Supreme Court by a majority of 3:2 upheld the said Act. In a
dissenting judgment it was observed that "The statute having permitted the delegation of
powers to the board only as the statutory authority, the power so delegated have to be
exercised by the board and not by its components".

Implied Power

What would happen if there is no specific or express provision in the statute

permitting sub- delegation? The answer is not free from doubt.
In Jackson v. Butterworth, All ER 1948, Scott, L.J. held that the method (of sub-
delegating power to issue circulars to local authorities) was convenient and desirable, but the
power to sub-delegate was, unfortunately, absent. The other view, however, is that even if
there is no provision in the parent Act about sub-delegation of power by the delegate, the
same may be inferred from necessary implication.
Griffith rightly states, “if the statute is so widely phrased that two or more ‘tiers’ of
sub-delegation are necessary to reduce it to specialized rules on which action can be based,

79
then it may be that the courts will imply the power to make the necessary sub-delegated
legislation.”

In United States v. Bareno,1943 the parent Act conferred on the President the power
to make regulations concerning exports and provided that unless otherwise directed the
functions of the President should be performed by the Board of Economic Welfare. The
Board sub-delegated the power to its Executive Director, who further sub-delegated it to his
assistant, who in turn delegated it to some officials. The court held all the sub-delegations
valid.

Criticisms

The practice of sub-delegation has been heavily criticized by jurists. It is well

established that the maxim delegatus non potest delegare (a delegate cannot further delegate)
applies in the field of delegated legislation also and sub-delegation of power is not
permissible unless the said power is conferred either expressly or by necessary implication.
The author De Smith says, “there is a strong presumption against construing a grant of
delegated legislative power as empowering the delegate to sub-delegate the whole or any
substantial part of the law-making power entrusted to it.”

Bachawat, J. in the leading case of Barium Chemicals Ltd. v. Company Law Board
states: “The naming of a delegate to do any act involving a discretion indicates that the
delegate was selected because of his peculiar skill and the confidence reposed in him, and
there is a presumption that he is required to do the act himself and cannot redelegate his
authority.” It is also said, ‘sub-delegation at several stages removed from the source dilutes
accountability of the administrative authority and weakens the safeguards granted by the
Act. It becomes difficult for the people to know whether the officer is acting within his
prescribed sphere of authority. It also transfers power from a higher to a hierarchically lower
authority. It is, therefore, necessary to limit in some way the degrees to which sub-delegation
may proceed.’
Finally, there are serious difficulties with the publication of sub-delegated
legislation. Such legislation, not being an Act of Legislature, there is no general statutory
requirement of publicity. ‘Though casually made by a minor official, sub-delegation creates
a rule and sets up a standard of conduct for all to whom the rule applies. No individual can
ignore the rule with impunity. But at the same time, the general public must have access to

80
the law and they should be given an opportunity to know the law. In the case of such
delegated and sub-delegated legislation, proper publication is lacking.

81
JURISPRUDENCE OF DELEGATED LEGISLATION EMERGING FROM
THE DECISIONS.

1. The power of delegation is a constituent element of legislative power as a whole under

Article 245 of the Constitution and other relative articles. Delegation of some part of
legislative power has become a compulsive necessity due to the complexities of modern
legislation.
2. Essential legislative functions cannot be delegated by the Legislature.

3. Essential legislative functions mean laying the policy of the Act and enacting that policy
into a binding rule of conduct. In other words, the legislature must lay down legislative
policy and purpose sufficient to provide a guideline for administrative rule-making. The
policy of law may be express or implied and can be gathered from the history, Preamble,
title, scheme of the Act or object and reason Clause, etc.
4. After the legislature has exercised the essential legislative functions, it can delegate non-
essentials, however numerous and significant they may be.
5. In order to determine the Constitutionality of the delegation of Legislative powers, every
case is decided in the special sitting.
6. Courts travelled to the extreme in holding every broad general statement as sufficient
policy of the Act to determine the question of Constitutionality.
7. There are various forms of Administrative rule-making. However, the parameter for
determining the question of constitutionality is the same, namely, the legislature must lay
down the policy of the Act.
8. Delegated legislation must be consistent with the parent Act and must not violate
legislative policy and guidelines. Delegatee cannot have more legislative powers than that
of the delegator.
9. Sub-delegation of Legislative powers in order to be valid must be expressly authorized by
the parent Act.
10. The delegated legislation in order to be valid must not unreasonable must not violate any
procedural safeguards if provided in the parent Act.
11. In determining the validity of delegated legislation, if it is within the competence of the
authority, the motive of the delegated legislation is not taken into account.
12. When the law allows delegation of Administrative power by an officer to another officer
subordinate to him, he does not divest himself of all the powers.

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13. While deciding on the constitutionality of delegated legislation, the court may take into
consideration the relevance of context and background in which power of rule-making has
been exercised.
14. Court has imported the principle of "proportionality" in determining the constitutionality
of delegated legislation especially in cases involving a serious violation of public interest
where this new doctrine may produce better results.
15. If the parent Act is repealed, notifications issued under it would also stand repealed
unless saved by the repealing Act.
16. Rules and regulations validly made by the administrative authority become part of the
parent Act.
17. Court decision cannot be nullified by the administrative authority by changing its rules.
It would amount to contempt of court.
18. Power to repeal and amend (in essential respect) cannot be delegated.

DELEGATED LEGISLATION (CONTROL AND SAFEGUARDS)

Introduction:

It is doubtful whether Parliament itself has fully realized how extensive the practice
of delegation has become, or the extent to which it has surrendered its own functions in the
process, or how far it is really the practice might be abused. Today the question is not
whether delegated legislation is desirable or not, but it is what controls and safeguards can
and ought to be introduced so that the rule-making power conferred on the administration is
not misused or misapplied.

Justice Subbarao observes that it is for a court to hold on a fair, generous and liberal
construction of an impugned statute whether the legislature exceeded such limits. But the
liberal construction should not be carried by the courts to the extent of always trying to
discover dormant or latent legislative policy to sustain an arbitrary power conferred on the
executive authorities. It is the duty of the court to strike down without any hesitation any
blanket power conferred on the executive by the Legislature. conceded that in the present-
day legislative powers can validly be delegated to the executive within permissible limits. At
the same time, there is an inherent danger of abuse of the said power by executive
authorities. The basic problem, therefore, is that of controlling the delegate in exercising his
legislative powers.

83
 It has been rightly said that one has to find out a middle course between two
conflicting principles; one permitting very wide powers of delegation for practical reasons
while the other that no new legislative bodies should be set up by transferring essent
essential
legislative functions to administrative authorities. Delegated legislation has become
inevitable but the question of control has become crucial.
The control must be introduced at two stages:

• First, at the source, i.e. the safeguards must be provided wh

when
en the legislature confers the
legislative power on the executive.
• Second, some safeguards must be provided in case of misuse or abuse of power by the
executive.

Controls over the delegated legislation may be divided into three categories:

1. Judicial control;

2. Legislative control, and

3. Other controls.

1. JUDICIAL CONTROL

In India Judicial review of Administrative rule

rule-making
making is subject to normal rules
governing the review of administrative action. Nevertheless, the principles on which the

84
Constitutionality of a statute is judged and that of subordinate legislation are different. A
subordinate legislation could not enjoy the same degree of immunity as a legislative Act
would. This judicial review of administrative rule-making cannot be foreclosed in any
manner by the enabling Act. It was held in the State of Kerala v. Unnikrishnan 2007 SSC,
Judicial review of Administrative rule-making cannot be foreclosed in any manner by the
enabling Act.

In the State of Kerala v. KMC Abdullah and Co. AIR 1965 SC held that the validity of the
rules can still be challenged even in the face of such a phrase as "shall not be called in
question in any court" in the enabling Act.
In the same manner in General Officer Commanding-in-Chief v. Subhash Chandra
Yadav, 1988 SCC, the supreme court held that an Act providing that rules made thereunder
on publication in official Gazette would be "as if enacted" In the Act, cannot take away
judicial review.

Constitutionality of the parent Act

There is always a presumption in favor of constitutionality, and a law will not be

declared unconstitutional unless the case is so clear so as to be free from doubt; "to doubt the
constitutionality of law is to resolve it in favor of its validity. Where the validity of a statute
is questioned and there are two interpretations one of its will make the law valid and the
other void, the former must be preferred and the validity of the law upheld. In pronouncing
the Constitutional validity of a statute the court is not concerned with the wisdom or
unwisdom, the justice or injustice of the law. If that which is passed into law, is within the
scope of the power conferred on the legislature and violates no restrictions on that power, the
law must be upheld whatever a court may think of it.
In, the scheme of judicial control of delegated legislation the first question which may
arise is whether the parent statute under which legislative powers have been delegated to the
administration is itself Constitutional or not, for if the delegating statute itself is
unconstitutional, then the delegated legislation an emanating there under will also be invalid.
The parent Act may be unconstitutional on several Grounds example

1. Excessive delegation or

2. Breach of Fundamental Rights or

3. On any other ground such as the Distribution of powers between the Centre and States.

85
 Constitutionality of Delegated Legislation

There is a presumption in favor of the constitutionality of statutes as well as

delegated legislation and it is only when there is a clear violation of Constitutional provision
for of the parent statute in the case of delegated legislation beyond reasonable doubt that the
court should declare it to be unconstitutional.
The courts may be asked to consider the question of the constitutionality of delegated
legislation itself. It is quite possible that the parent Statute may be Constitutional the
enabling delegated legislation may be in conflict with some provision of the Constitution.
For example, delegated legislation may be in conflict with the fundamental right guaranteed
by the Constitution.
A few examples may be mentioned herein to illustrate the point:

i) In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh AIR, 1954 a few provisions of
UP Coal Control Order, 1953 made under Section 3(2) of Essential Supplies Act, 1946 was
declared ultra-virus as infringing Art. 19 (1)(g), a fundamental right guaranteed by the
Constitution.

ii) In Rashid Ahmed v. Municipal Board, 1950 certain bye-laws made by a municipality were
held bad under article 19 (1)(g).
iii) In Narendra Kumar v. Union of India 1960 the Supreme Court specifically considered
the point of whether the question of the unconstitutionality of delegated legislation made
under a valid Act, could be raised or not. The Non- Ferrous Metal Order, 1958 was made
under the Essential Commodities Act, 1955.
In Hari Shankar Bagla v. State of Madhya Pradesh AIR, 1954 the validity of the
Essential Commodities Act, had been upheld. The question in Narendra now was whether
the constitutional validity of the order made under the Act could be canvassed under Art.
19(1)(g). The court held that though the law may not be unconstitutional, an order made
thereunder may yet be challenged under the constitution because the law could not be
presumed to authorize anything unconstitutional.
iv) In Air India v. Nargesh Meerza AIR, 1981 is the Supreme Court declared certain
regulations pertaining to the conditions of service of an air hostess in India, and the
undertaking of the Central Government as discriminatory under Art. 14 of the Constitution.
v) The Bar Council made a rule under the Advocates Act, barring the enrolment of a person
as an advocate if he was engaged in any other profession. The rule was declared valid as it
did not infringe Art.14 of the Constitution.

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Doctrine of Ultra Vires

‘Ultra vires’ means beyond power or authority or lack of power. An act may be said
to be ‘ultra vires’ when it has been done by a person or a body of persons which is beyond
his, its or their power, authority or jurisdiction. ‘Ultra vires’ relates to the capacity, authority,
or power of a person to do an act. It is not necessary that an act to be ultra vires must be
illegal. The act may or may not be illegal. The essence of the doctrine of ultra vires is that an
act has been done in excess of power possessed by a person.
Delegated legislation does not fall beyond the scope of judicial review and in almost
all democratic countries it is accepted that courts can decide the validity or otherwise of
delegated legislation mainly applying two tests:
1. Substantive ultra vires; and

2. Procedural ultra vires.

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1. SUBSTANTIVE ULTRA VIRES

When an Act or legislation is enacted in an excess of power, conferred on the

Legislature by the Constitution, the legislation is said to be ultra vires the Constitution. On
the same principle, when subordinate legislation goes beyond what the delegate is authorized
to enact (and exceeds over conferred on it by the Legislature), it acts ultra vires. This is
known as substantive ultra vires.

Substantive ultra vires means that the delegated legislation goes beyond the scope of
the authority conferred on it by the parent statute or by the Constitution. It is a fundamental
principle of law that a public authority cannot act outside the powers; i.e. ultra vires, and it
has been rightly described as the ‘central principle’ and ‘foundation of a large part of
administrative law.’ An act which, for a reason, is in excess of power is ultra vires.
As Schwartz states, “If an agency acts within the statutory limits (intra vires), the
action is valid; if it acts outside it (ultra vires), it is invalid. No statute is needed to establish
this; it is inherent in the constitutional position of agencies and courts.”

Circumstances

A delegated legislation may be held invalid on the ground of substantive ultra vires in
the following circumstances:
*where the parent Act is unconstitutional

* Where parent Act delegates essential legislative functions;

*Where delegated legislation is inconsistent with general law;

*Where delegated legislation is unconstitutional

*Where delegated legislation is inconsistent with parent Act;

*Unreasonableness;

*Mala fide (Bad faith);

*Sub-delegation;

*Exclusion of judicial review;

*Retrospective effect;

88
 For delegation to be valid, the first requirement is that the parent Act or enabling
statute by which legislative power is conferred on the executive authority must be valid and
constitutional. If the delegating statute itself is ultra vires the Constitution and is bad,
delegated legislation is necessarily bad. Under the Defence of India Act, 1939, the Central
Government was empowered to make rules for the requisition of immovable property. But
the subject of requisition of immovable property was not within the field of the Federal
Legislature. On that ground, the rule was held invalid(Tan Bug Taim v Collector of Bombay ,
AIR 1946).
In Chintamanrao v. State of M.P, the parent Act authorized the Deputy
Commissioner to prohibit manufacturing of bidis in some areas during certain periods. The
order passed by the Deputy Commissioner under the Act was held ultra vires inasmuch as
the Act under which it was made violated the Fundamental Right to carry on any occupation,
trade or business, guaranteed by Article 19(1)(g) of the Constitution.

1. Where parent Act delegates essential legislative functions

It is a well-settled principle of Administrative Law that primary and essential

legislative functions must be performed by the Legislature itself and they cannot be
delegated to any other organ of the State. To put it differently, under the scheme of our
Constitution, a legislature cannot create, constitute or establish a parallel Legislature.

2. Where delegated legislation is inconsistent with the parent Act

The validity of delegated legislation can be challenged on the ground that it is ultra
vires the parent Act or enabling statute. It is an accepted principle that delegated authority
must be exercised strictly within the authority of law. Delegated legislation can be held valid
only if it conforms exactly to the power granted.
In Indian Council of Legal Aid & Advice v. Bar Council of India, a rule was framed
by the Bar Council barring enrolment as advocates of persons who had completed 45 years
of age. The parent Act enabled the Bar Council to lay down conditions subject to which an
advocate ‘shall have right to practice.’ Declaring the rule ultra vires, the Supreme Court held
that the Bar Council can make the rule only after a person is enrolled as an advocate, i.e. at
the post-enrolment stage. It cannot frame a rule that is barring persons from enrolment. The
rule was thus inconsistent with the parent Act.
The validity of delegated legislation can be challenged on the ground that it is ultra-

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vires the parent act or enabling statute. It is an accepted principle that delegated authority
must be exercised strictly within the authority of law. Delegated legislation can be held valid
only if it conforms exactly to the power granted.
Under English law delegated legislation may be struck down on the ground that if
it infringes the parent Act. Thus, where, in the exercise of power under the parent Act, the
executive framed certain regulations in order to discourage asylum claims by migrants, it
was held that the regulation was ultra vires since they rendered the provisions of the Act
nugatory.
This principle is accepted in India also it is well settled that the rule-making power
conferred by the parent Act does not enable the rule-making authority to make a rule which
may travel beyond the scope of the Act or may be inconsistent with or repugnant to the
enabling Act. If the rule cannot be reconciled with the parent Act, it must be struck down.
This principle was laid down in Chandra Bali v. R., AIR 1952.
In Mohd. Yasin v. Town Area Committee AIR 1952 and in State of Karnataka v.
Ganesh Kamath, 1983 SCC, under the parent Act, the municipality was empowered to
charge a fee only for the use and occupation of some property of the committee, but the
town area committee framed bye-laws and imposed a levy on wholesalers irrespective of any
use or occupation of the property by them. Supreme Court held that the bye-laws were
beyond the powers conferred on the committee and were ultra-virus.
In Kunj Bihari Bihari Lal vs State of H. P. 3 2000 SCC., he parent Act H.P. Ceiling on
Land Holdings Act, 1972, conferred on the state government power to make rules "for
carrying out the purpose of the Act". Though the Act excluded from the operation of the Act
"Tea Estate", rules (delegated legislation) sought to include tea plantations and prohibited
transfer of such land. The rule was held ultra-vires and was struck down.
Even where the power to make delegated legislation is in subjective terms and allows
the administrative agency to make rules "as appear to it to be necessary or expedient for
giving effect to the provisions of the Act", the discretion is neither unfettered nor beyond
judicial scrutiny. The court has the power to decide the validity of vires of such provision.
The question when can a bye-law any other delegated legislation is said to be
inconsistent with or repugnant to the parent Act or any general law and therefore, bad. In
White v. Morley 1899 Q B "A delegate is not entitled to exercise powers in excess or in
contravention of the delegated powers. If an order is issued or framed in excess of powers
delegated to the authorities, such power would be illegal or void". Channel LJ stated: “A
bye-law is not bad because it deals with something that is not dealt with by the general law.
But it must not alter the general law by

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 making that lawful which the general law makes unlawful; or that unlawful which the
general law makes lawful”.
Whether a particular piece of delegated legislation is in excess of the power of
subordinate legislation conferred on the delegate has to be determined with reference to
specific provisions contained in the relevant statute conferring the power to make the rule
regulation bye-laws extra and also the object and purpose of the Act as can be gathered from
various provisions of the enactment.
In State of M.P. v. Bhola SCC 2003 Supreme Court upheld the validity of rule 3 of
the M P Prisoners Release on Probation Rules, 1964 providing that prisoners convicted
under Section 396 of the penal code 1860 (IPC) would not be eligible for release on
probation. It was held that the classification of offenders on the basis of nature and gravity of
offenses cannot be said to be arbitrary and unreasonable.
In Ajay Canu v. Union of India, SCC 1988, the Rule requiring the compulsory
wearing of helmet by persons driving two-wheeler would not be held arbitrary
discriminatory for imposing and reasonable restriction on the fundamental right guaranteed
under Article 19 (1)(d) of the constitution.

3. Where delegated legislation is inconsistent with General law

Subordinate legislation, apart from being intra vires the Constitution and consistent
with the parent Act, must also be in consonance with general law, i.e. any other law enacted
by the Legislature. This is based on the principle that a subordinate or delegated legislation
made by the executive cannot be contrary to the law of the land.

4. Where delegated legislation is unconstitutional

Sometimes a parent Act or delegating statute may be constitutional and valid

and delegated legislation may be consistent with the parent Act, yet the delegated legislation
may be held invalid on the ground that it contravenes the provisions of the Constitution. It
may seem paradoxical that a delegated legislation can be struck down on this ground because
if the parent Act is constitutional and delegated legislation is consistent with the parent Act,
how can the delegated legislation be ultra vires the Constitution? It was precisely this
argument which the Supreme Court was called upon to consider in Narendra Kumar v.
Union of India. The Supreme Court held that even though a parent Act might not be
unconstitutional, an order made thereunder (delegated legislation) can still be

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 unconstitutional and can be challenged as violative of the provisions of the Constitution.

In Hindustan Times v. State of U.P., Parliament, by an Act provided a pension

to working journalists. The State Government, by executive instructions-imposed a levy on
government advertisements on newspapers and deducted such levy from the pension fund of
working journalists. The directive of the State Government was held beyond legislative
competence and ultra vires the Constitution.
5. Unreasonableness

The test of unreasonableness has been, applied in Britain to the bye-laws made by
a municipal corporation. The court might well take the position that the legislation never
intended to give authority to make unreasonable rules, and they are, therefore, ultra vires.
In Kruse v. Johnson 1898 2 Q B, laying down the proposition, Lord Russel,
however, gave somewhat Limited meaning to the term unreasonableness, viz., if bye-laws
were found to be partial and unequal in their operation as between different classes, if they
were manifestly unjust, if they disclosed bad faith, or if they involved such oppressive or
gratuitous interference with the right of those subject to them as could find no justification in
the minds of reasonable man, then these can be regarded as ultra-vires on the presumption
that Parliament never intended to give authority to make such bye-laws.
In Air India v. Nergesh Meerza 1981 SCC, regulations made by Air India providing
for termination of service of an air hostess on her first pregnancy has been held to be the
most unreasonable and arbitrary provision which is abhorrent to the notions of civilized
society. The ruling in Yadav v. State of Haryana AIR1987 SC, also appears to come very
close to saying that unreasonable rules would be ultra vires.
The courts however adopt a restrictive view of unreasonableness. The test is not
whether the impugned rules are reasonable, but whether these are undesirable. A court does
not hold a rule unreasonable merely because it does not like or approve the rule. A rule is
held unreasonable if it is “manifestly unjust, capricious, inequitable or partial in operation”.
Rajasthan SRTC v. Bal Mukund Bairwa 2009 SCC rule authorizing a public sector
undertaking to dismiss a permanent employee just by giving him a 3 months’ notice without
any hearing being given to him has been quashed by the Supreme Court as being
unreasonable and arbitrary.
It might also be pointed out that delegated legislation may also be adjudged as
unreasonable under Article 14 or 19. Art.14 is been given an expansive interpretation by the
courts to cover quite a few aspects of the administrative process.

In Indian Express Newspapers v. Union of India, 1985 SCC the Apex Court ruled

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 that subordinate legislation does not enjoy the same degree of immunity as substantive
legislation enjoys. ‘Unreasonableness’ is one of the grounds of judicial review available to
test the validity of delegated legislation. If a delegate intends to impose a condition, which is
unreasonable, it cannot be held legal or valid.

6. Mala Fide

Indian Administrative Law is based on the principle that every statutory power
must be exercised in good faith. Power to make delegated legislation cannot claim immunity
from judicial review if the power has been exercised by the rule-making authority mala fide
or with dishonest intention. It may, however, be stated that the decisions of the Supreme
Court, are not consistent on the point and there is a cleavage of opinion.

7. Exclusion of Judicial Review

Quite often, statutes make an attempt to exclude judicial control of delegated

legislation, by providing that the rules made under and Act shall not be called in question in
any court and they may also provide that the rules made under any Act will have effect as if
enacted in the Act. The fundamental question here is whether such provision in the statute
would prevent judicial review of delegated legislation under the statute.

In England, this question was examined by the House of Lords in the Institute of
Patent Agents v. Lockwood, 1894 A.C., in this case, Lord Herschell observed that a clause to
the effect that "the rules made under the statute shall have the same effect as if they were
contained in this Act" would for all-purpose mean that the rule would be part of the Act and
for all purposes, one has to treat the rule exactly as if they were in the Act. This is known as
Herschel Doctrine. However, this rule has been modified in Minister of Health v. King 1931
A.C., in this case, the House of Lords held that if the rule or the scheme made under the
delegated power was inconsistent with the parent Act, the parent Act would prevail unless
the rule or the scheme was incorporated in a subsequent Act of the Parliament.

Herschel Doctrine in India

The position in India is not very clear. In Ravalu Shubha Rao v. Income Tax
commissioner, AIR 1956 SC, it appears that the Supreme Court has adopted the Herschel
Doctrine but in Chief Commissioner of Ajmer v. Radheshyam, AIR 1957 Supreme Court the

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 Doctrine was not followed. However, in Orient weaving Mills v. Union of India, AIR 1963
the Supreme Court again adapted the Herschel Doctrine. The various High Courts have taken
conflicting stands.

In State of Kerala v. Abdulla and Co. AIR 1965 SC Justice Shah and Justice
Sikri made the, following observations: "Power to frame rules is conferred by the Act upon
the state government and that power may be exercised within the strict limits of the authority
conferred. If in making a rule, the state transcends its authority, the rule will be invalid for
statutory rules made in exercise of delegated authority are valid and binding only if made
within the limits of authority conferred. The validity of a rule whether it is declared to have
effect as if enacted in the Act or otherwise is always open to challenge on the ground that it is
unauthorised”.
The rule of law has always recognized the power of judiciary to review legislative
and quasi-legislative acts. The validity of a delegated legislation can be challenged in a court
of law. As early as 1877 in Empress v. Burah, the High Court of Calcutta had declared
Section 9 of Act XXII of 1869 ultra vires. Though the decision of the Calcutta High Court
was reversed by the Privy Council, neither before the High Court nor before the Privy
Council it was even contended that the court had no power of judicial review and, therefore,
cannot decide the validity of the legislation.
Sometimes, however, attempts are made by the legislature to limit or exclude
judicial review of delegated legislation by providing different modes and methods. Thus, in
an Act a provision may be made that rules, regulations, bye-laws made under it ‘shall have
effect as if enacted in the Act’, ‘shall be final’, ‘shall be conclusive’, ‘shall not be called in
question in any court’, ‘shall not be challenged in any legal proceedings whatsoever’ and the
like.
8. Retrospective operation

It is well-settled that delegated legislation cannot have any retrospective effect unless
such a power is conferred on the rule-making authority by the parent Act. The legislature can
always legislate prospectively as well as retrospectively subject to the provisions of the
Constitution. But the said rule will not apply to administrative authorities exercising
delegated legislative power. Some statutes specifically confer power to the rule-making
authority to frame rules with retrospective effect.

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2. PROCEDURAL ULTRA VIRES

When subordinate legislation fails to comply with procedural requirements

prescribed by the parent Act or by a general law, it is known as procedural ultra vires. While
framing rules, bye-laws, regulations, etc., the parent Act or enabling statute may require the
delegate to observe a prescribed procedure, such as, holding of consultations with particular
bodies or interests, publication of draft rules or bye-laws, laying them before Parliament, etc.
It is incumbent on the delegate to comply with these procedural requirements and to exercise
the power in the manner indicated by the Legislature.

Failure to comply with the requirement may invalidate the rules so framed. At the
same time, however, it is also to be noted that failure to observe the procedural requirements
do not necessarily and always invalidate the rules. This arises out of a distinction between
mandatory requirements and directory requirements. Generally, non-compliance with a
directory provision does not invalidate subordinate legislation, but failure to observe a
mandatory and imperative requirement does. It is a well-settled rule that an absolute
enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be
obeyed or fulfilled substantially.

Procedural Requirements:

1. Publication

2. Consultation

1. Publication:

Object:

It is a fundamental principle of law that ‘ignorance of law is no excuse’ (ignorantia

juris non excusat). But there is also another equally established principle of law that the
public must have access to the law and they should be given an opportunity to know the law.
The very justification for that basic maxim is that the whole of our law, written or unwritten,
is accessible to the public, in the sense, of course, at any rate, its legal advisers have access
to it, at any moment, as of right. In case of an Act made by Parliament, this poses little
difficulty as it receives sufficient publicity during the introduction of a Bill, printing,

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reference to a Select Committee and its report thereon, reading before the House or Houses,
discussion, voting, final approval of the Bill, radio and newspaper reports thereon, etc. But
this is not true in the case of delegated legislation.
Directory or Mandatory

In Harla v. State of Rajasthan, the legislation in question passed by Council was

neither published nor was it made known to the general public through any other means. The
Supreme Court, by applying principles of natural justice, held that its publication was
necessary. Again, in Narendra Kumar v. Union of India, S. 3 of the Essential Commodities
Act, 1955 required all the rules to be made under the Act to be notified in the Official
Gazette. The principles applied by the licensing authority for issuing permits for the
acquisition of non-ferrous metal were not notified. The Supreme Court held the rules
ineffective.
Mode of publication:

A question may also arise about the mode, manner and method of publication. As a
rule, a distinction must be drawn between the publication of delegated legislation and the
mode, manner, or method of publication. Even if a requirement of publication is held to be
mandatory, the mode or manner of publication may be held to be directory and strict
compliance thereof may not be insisted upon.

Effect of publication: Once the delegated legislation is promulgated or published, it takes

effect from the date of such promulgation or publication.

Defect in publication: As already noticed, there is a difference between the publication of

delegated legislation and the mode of such publication. If delegated legislation is not
published at all, the defect goes to the root and makes the instrument non est, ineffective and
of no consequence. But, if it is not published in a particular manner, it would not necessarily
make the instrument void. Effect to publish in the manner provided by law would be
considered by the court.

1. Consultation:

One of the techniques adopted by the Legislature to control the exercise of power by
the executive against abuse of power is the process of consultation with affected interests

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before delegated legislation or statutory instrument is prepared. It is indeed a visible
safeguard against possible misuse of power by the rule-making authority.
The term ‘consult’ implies a conference of two or more persons or an impact of two or
more minds in respect of a topic in order to enable them to evolve a correct or, at least
satisfactory solution to a problem. It is a process that requires meeting of minds between the
parties to consultation on material facts to come to a right conclusion.

Object:

An important measure to check and control the exercise of legislative powers by the
executive is the technique of consultation through which affected interests may participate in
the rule-making process. This modus operandi is regarded as a valuable safeguard against
misuse of legislative power by the executive authorities.
As Wade and Philips remark, “One way of avoiding a clash between department
exercising legislative powers and the interest most likely to be affected is to provide for
some form of consultation.”
This process of exchange of ideas is beneficial to both: to the affected interests itself
insofar as they have an opportunity to impress on the authority their point of view; and to the
rule-making authority insofar as it can gather necessary information regarding the issues
involved and thus be in a better position to appreciate a particular situation. The
Administration is not always the repository of ultimate wisdom; it learns from the
suggestions made by outsiders and often benefits from that advice. A consultative technique
is useful in balancing individual interests and administrative exigencies. The purpose is to
allow interested parties to make a useful comment and not to allow them to assert their right
to insist that the rule take a particular form. It acts as an important brake on administrative
absolutism.

Nature and Scope

Consultation does not mean consent or concurrence. It, however, postulates full
and effective deliberation, exchange of mutual viewpoints, meeting or minds and
examination of relative merits of the other point of view. Consultation is not complete unless
the parties thereto make their respective viewpoints known to others and examine the relative
merits of their views. Even when consultation is not a legal requirement, such a step
generates greater confidence of the persons who may be affected by an action that may be

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taken by the authority.

Mandatory or Directory

No hard and fast rule of universal application can be laid down as to when a
provision relating to the consultation should be held as mandatory and when it should be
regarded as directory. As held by the Supreme Court, in absence of the legislation making it
plain what the consequences of failure to observe the statutory requirement are, the court
should decide the question keeping in view the scope and purpose of the enactment, object
sought to be secured by such consultation, the intention of making such provision, the effect
of the exercise of power upon the rights of persons to be consulted, etc.

In New India Industrial Corporation Limited v. Union of India, AIR1980, consultation

interest infuses the law-making process with democratic forms, particularly in what is called
bureaucratic legislation. Apart from this, it is an administrative necessity for effective and
meaningful administration is impossible without an imaginative administrative process. If
the citizens are to receive the advantage of any beneficent measures of the administration, the
administrative process should be such that the benefit reaches the citizens in full measure and
with the expedition. A Consultative technique is useful in balancing individual interest and
administrative exigencies the consultative process can be a salutary safeguard against
improper use of the power of delegated legislation as it infuses democratic norms in
bureaucratic legislation.

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LEGISLATIVE CONTROL /PARLIAMENTARY CONTROL

It is the function of the Legislature to legislate, but if it seeks to give this power to
the executive because of some circumstances, it is not only the right of the Legislature, but
also its duty, as principal, to see how its agent (executive) carries out the agency entrusted to
it. Since it is the legislature which delegates legislative power to the administration, it is
primarily for it to supervise and control the actual exercise of this power and ensure against
the danger of its objectionable, abusive and unwarranted use by the administration. Based on
this theory, a whole system of Legislative supervision over delegated legislation has come
into in India.
It is off-course open to Parliament to confer legislative power upon anyone it likes
but, if the Parliament delegates legislative power to any authority example to Executive it
must also ensure that the powers are properly exercised by the administration and there is no
misuse of authority by the executive. Arvind Singh v. State of Punjab 1979 SCC, Krishna
Iyer J. rightly stated that parliamentary control over delegated legislation should be a living
continuity as a constitutional necessity.

Object of control: The underlying object of parliamentary control is to keep watch

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over the rule-making authorities and also to provide an opportunity to criticize them if there
is abuse of power on their part. This mechanism is described as "legislative Veto"

Since the risk of abuse of power by the executive is inherent in the process of
delegated legislation, it is necessary for the legislature to keep ‘close watch’ on the delegate.
This is much more important in view of the fact that judicial control over delegated
legislation is not sufficient enough to keep administrative agencies within the bounds of
delegation and there is a need and necessity for ‘political’ control in terms of the policy,
which Parliament may be able to exercise efficiently. The fact is that due to broad delegation
of Legislative powers and the generalized standard of control also bold, judicial control has
shrunk, raising the desirability and the necessity of parliamentary control.

In US the control of the Congress over delegated legislation is highly limited

because neither is the technique of “laying” extensively used nor is there any Congressional
Committee to scrutinize it. This is due to the Constitutional structure reservation in that
country in which it is considered only the duty of courts to review the legality of
administrative rulemaking. There is even authority that is negative resolution technique so
widely used in Britain would be unconstitutional in an American legislature.
In England due to the concept of parliamentary sovereignty, the control exercised
by Parliament over administrative rulemaking is very broad and effective. Parliamentary
control mechanism operates through laying techniques because under the provision of the
English Statutory Instruments Act 1946, all administrative rulemaking is subject to the
control of Parliament through the select committee on statutory instruments. Parliamentary
control in England is most effective because it is done in a non-political atmosphere and the
three-line whip does not come into operation. In India, parliamentary control of
Administrative rulemaking is implicit as a normal Constitutional function because the
executive is responsible to Parliament.
Modes:

The legislative control can be effectively exercised

by 1.Memorandum on Delegation
2. Laying procedure

•Direct general control

•Direct special control

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 3. Indirect Control / Scrutiny Committees

1. Memorandum on Delegation

SUM OF BILL MEMORANDUM

Purpose & effect

DL Particulars of
subordinate authorities
who are to exercise
Manner in which power
to be exercised
PROPOSALS, SCOPE

The first step in the process of parliamentary control of delegated legislation is taken at
the stage of delegation. A rule of procedure of each house of parliament requires that bill
involving proposal for delegation of legislative power shall be “accompanied by a
memorandum explaining such proposals and drawing the attention of their scope, and stating
also whether they are of exceptional or normal character”.
The rule is of an informational nature. The rule is celebratory so far as it goes, for the
first stage of supervision arises at the stage of delegation. The Lok Sabha committee on
subordinate legislation has emphasized that the rule is mandatory and the memorandum
attached to a bill should give a full report and effect of the delegation of power to
subordinate authorities, the points which may be covered in the rules, the particulars of
subordinate authorities who are to exercise the delegated power, and the manner in which
such power is to be exercised, the purpose of the memorandum is to focus the attention of
the members of the Parliament to the provisions of the bill involving delegation of legislative
power. The speaker may also refer to bills containing provisions for delegation of legislative
powers to the committee to examine the extent of such power sought to be delegated.

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2. Laying procedure

Direct but general control over delegated legislation is exercised

1. Through debate on Act containing delegation: Members may discuss anything about
delegation including necessity, extent, type of delegation and the authority to whom
power is delegated.
2. Through questions and notices: Any member may ask questions on any aspect of the
delegation of legislative powers, and if dissatisfied can give notice for discussion under
Rule 59 of the Procedure and Conduct of business in Lok Sabha Rules.
3.Through moving resolutions and notices in the house: Any member may move a resolution
on motion if the matter regarding delegation of power is urgent and immediate, and the
reply of the government is unsatisfactory.
4. Through vote on grant: Whenever the budget demands of ministry are presented, any
member may propose a cut and thereby bring the exercise of rule-making power by that
Ministry under discussion.
5.Through a private Member's Bill seeking modification in the parent Act, or through a
debate at the time of discussion on the address by the President to the joint session of
Parliament, members may discuss delegation. However, these methods are rarely used.

Direct Special Control

This control mechanism is exercised through the technique of laying on the table of
the house rules and regulations framed by the administrative authority.
In US, the control of the Congress over the exercise of delegated legislation is
feeble; however, it does not mean that the technique of laying is no non-existent. The notable
use of this technique was made in the Reorganisation Act of 1939 to 1969, which authorize
the President to recognize the executive government by administrative rulemaking. The Acts
of 1939 and 1945 provided that the presidential organization plans were not to have any
effect for a specified period during which they could be honored by the Congress through a
concurrent resolution of both the houses. Classic annulment through this process has been the
rejection by the Senate of President Truman's plan to abrogate the provision of the Taft-
Hartley Act, 1947 providing for a separation of functions between the National Labour
Relations Board and the independent office of General Council.
In England the technique of laying is very extensively used because all the
administrative rulemaking is subject to the supervision of Parliament under the Statutory

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Instrument Act, 1946 which prescribes a time table the most common form of provision
provides that the delegated legislation comes into immediate effect, but is subject annulment
by an adverse resolution of either House. Other provisions for laying defer the operation of
delegated legislation for a specified period require affirmative resolution for the how is
before the delegated legislation can operate; allowed the delegated legislation to operate
immediately, but require affirmative resolution for subsequent continents in operation;
postpone the operation until approved by affirmative resolution.

In India, Atlas Cycle Industries Ltd v. State of Haryana, 1979 SCC, the Supreme
Court noticed that there are three different link clauses that assume different forms
depending on the degree of control which the legislature may like to exercise namely as well
as the select committee on delegated legislation summarised the procedure under seven
heads:
1. Laying without further procedures.

2. Laying subject to affirmative resolution.

3. Laying subject to negative resolution.

4. Laying in draft subject to negative resolution.

5. Laying in draft subject to an affirmative resolution.

6. Laying with the deferred operation.

7. Laying with immediate effect but subject to annulment.

1. Laying with no further direction: In this type of playing, the rules and regulations come
into effect as soon as they are laid. It is simply to inform the house about the rules and
regulations.
2. Laying subject to negative resolution: in this process, the rule comes into effect as soon as
they are placed on the table of the house, shall cease to have effect if negated by a resolution
of the house.

3. Laying subject to affirmative resolution: this technique may take two shapes:

a) that the rules shall have no effect or force unless approved by a resolution of each house
of the Parliament
b) that the rules shall cease to have effect unless approved by an affirmative

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resolution. In these both processes, it is the duty of the government to move a
resolution.
4. Laying in draft subject to negative resolution: such a provision provides that when any
Act contains a provision for this type of Laying the draft rules shall be placed on the table of
the house and shall come into force after 40 days from the date of laying unless disapproved
before that period.
5. Laying in draft subject to an affirmative resolution: In this type of laying, the instruments
or draft rules shall have no effect unless approved by the house.
6. Laying with deferred operation: the requirement of laying is linked with the postponement
of operation of the rules and thus parliament gets more control.
7. Laying with immediate effect but subject to annulment: here the rules come into force
when laid before parliament, but cease to be in operation if disapproved by it within the
specified period. This is the most common form of Parliamentary control and is known as
the negative procedure.

The earliest instance of the laying provision found in India is in the Immigration Act,
1922. Between (1929 to 1939) only 3 Act made provision for laying, namely, the Insurance
Act 1938, Agriculture Product Act, 1938 and The Motor Vehicles Act, 1939 after a gap of 5
years, The Central Excise Act and Salt Act, 1944 and the Aircraft Act, 1934 made provisions
that the rules framed thereunder must be laid on the table of the house. Only in a few Acts
that is Insurance Act, 1938 and Aircraft Act, 1944 provision was made for the laying subject
to a negative resolution. The negative resolution procedure differs from its counterpart in
England as in India it includes the power of modification also. Three other acts, namely,
Representation of The Peoples Act, 1951; All India Services Act, 1951 and Indian
Development and Regulation Act, 1951 contain only the right of modification of the rules
and not an annulment. The period during which the rules could be modified varies from 7
days to 1 month. It may be noted that in England this is a uniform period of 40 days. The
Indian Tariff Amendment Act, 1950 provides an illustration where rules are made subject to
laying with affirmative resolution.
By the delegated legislation provisions (Amendment) Act, 1983, our Parliament has
amended 50 Indian statutes and inserted provisions for laying before State legislature and
Parliament where there were not many provisions and in other instances, provided for an
annulment or modification within a specified period.

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 A typical clause read as follows. Every rule prescribed for sanctioned by the central
government under this Act shall be laid down as soon as may be after it is prescribed or
sanctioned, before each House of the Parliament, while it is in session, for a total period of
30 days within which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both houses agree in making any modification in the rule or
both Houses agree that the rule should not have an effect, the rule shall thereafter have effect
only in such modified form or be of no effect, as the case may be: so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously
done under that rule.
In the State of Uttar Pradesh, and identical provision is made applicable to rulemaking
by the U.P. Government under all the U.P and Central Acts by adopting a convenient method
of inserting it in the U.P. General Clauses Act, 1904, thus, making it a rule of uniform
application without having to add or amend the individual U.P. or Central Act.
In the absence of any general law in India regulating the laying procedure, the
scrutiny committee made the following suggestions:
1) All Acts of Parliament should uniformly require that rules be laid on the table of the house
"as soon as possible".
2) The laying period should uniformly be 30 days from the date of final publication of rules.

3) The rule will be subject to such modification as the house may like to make.

The highlights of this formula are as follows:

1. This formula requires the rules to be laid down before each house of the Parliament as
soon as possible. There is no time-frame within which the rules are to be laid down before
the house after their promulgation.
2. The laying procedure envisaged by the above formula is laying with a negative resolution.

3. The rules are to be laid for 30 session days. This period maybe comprised of one session
or in two or more successive sessions.
4. Before the expiry of the session immediately following the session or the successive
sessions aforesaid, if both Houses agree, they can make any modification in the rules or even
annul them.
5. The rules come into force as soon as they are made and the laying procedure takes effect
thereafter.

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6. If any modification is made in the rules, or they are annulled, by the Houses then the rules
operate in the modified form or are of no effect, in the future.
7. If they are annulled then they will cease to exist from the date of annulment.

8. The rules can be annulled or modified only when both houses agree.

9. In this formula, the initiative to move a resolution to annul or modify the rules has to be
taken by the members of the House. The government is under no obligation to make any
initiative in this regard.
10. In this ‘laying’ formula, there is no time frame within which the rules have to be laid
before the houses after their promulgation. The phraseology used is "as soon as may be" after
the rules are made. In practice, often the rules are laid long after they are made. This reduces
the effectiveness of the parliamentary control over delegated legislation. The laying formula
as contained in the above provision is regarded as being of directory nature and not
mandatory.

Failure to lay: Effects

In England, the position is not clear. In Bailey v. Williamson, 1873 8 QB, the
condition of laying was held to be directory. however, the position has changed after passing
of the Statutory Instruments Act, 1946 and in R. v. Sheer Metalcraft 1954, Q B, the court
held that delegated legislation became valid only after it was laid before parliament.
In India also, the position is not free from doubt. In Express Newspaper (P) Limited
v. Union of India, 1958 AIR SC, the supreme court observed by way of obiter dicta that the
provision regarding laying was mandatory. But in Re Kerala Education Bill, AIR1958 SC,
the supreme court most emphatically and lucidly observed: After the rules are laid before the
legislative assembly, they may be altered or amended and it is such rules that become
effective.
In Jan Mohammed Noor Mohammad Bagban v. State of Gujarat AIR 1966 SC, the
court held that the rules made under the Parent Act were valid, and observed that though the
rules were not laid before the legislature, they became valid from the date on which they
were made as the Act did not provide that they could in case be invalidated by failure to
place them before the Legislature.

In M. K. Papiah and Sons v. Excise Commr. 1975 SCC, the court held that the rules
under the parent Act came into force as soon as they were framed. Negating the contention

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that the power of Legislature to annul or repeal rules subsequently could not be regarded as a
sufficient control over delegated legislation. Mathew J. observed, "the dilution of
parliamentary watchdogging the delegated legislation may be deplored but, in the
compulsions and complexities of modern life, cannot be helped".
Whatever are the consequences of failure to lay it is submitted that the correct answer
is to this question depends on the terms relating to a particular laying clause. If the provision
relating to laying is a condition precedent, the requirement of laying must be held to be
mandatory and the rules do not come into force until they are laid. In the case of "negative
clause", however, the rules come into operation immediately and the provision of laying is
generally construed as directory.

INDIRECT CONTROL/ SCRUTINY COMMITTEES

Object: As discussed above, laying on the table has not always been held to be
mandatory. Even if that requirement is complied with, mere laying of rules before Parliament
would not be of much use unless the rules were properly studied and scrutinized. And,
therefore, with a view to strengthening Parliamentary control over delegated legislation,
Scrutiny Committees are established. In India, there are two Scrutiny Committees:
1) the Lok Sabha Committee on Subordinate Legislation

2) the Rajya Sabha Committee on Subordinate Legislation

This control is exercised by Parliament through its committee. In 1950 the law
minister made a suggestion for the establishment of a committee of the House on the pattern
of the select committee on Statutory Instruments, 1944 to examine delegated legislation and
bring to the notice of the house whether administrative rulemaking has exceeded the
intention of the Parliament or has departed from it or has affected any fundamental norm or
principle.
Such committee known as Committee on subordinate legislation of Lok Sabha
was appointed on 1st December 1953 the committee consisted of 15 members nominated by
the speaker for a period of 1 year, the chairman is appointed by the speaker from amongst
the members. If the deputy speaker happens to be a member then he shall act as chairman.
In England, the healthy tradition is that the leader of the opposition is always
appointed as chairman. The committee has the power to appoint subcommittees and refer
any matter for its concentration. It also has the power to compel the attendance of any person
and to compel the production of documents and records. The powers of the Indian
committees are much wider than its counterpart. In England, the committee can only ask

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government departments to send memos or to depute a person to appear before it as a
witness.
According to rule 223 of Lok Sabha rules of procedure, the main function of the
committee shall be to examine the following:
1. Whether the rules are in accordance with the general object of the act?

2. Whether the rules contain any matter which could more properly be dealt with in the Act?

3. Whether it contains imposition of tax?

4. Whether it directly or indirectly bars the jurisdiction of the court?

5. Whether it is retrospective?

6. Whether it involves expenditure from the consolidated fund?

7. Whether there has been any justifiable delay in the publication for laying?

8. Whether, for any reason, it requires further elucidation?

This committee has between 1953 and 1961 scrutinized about 5300 Orders and rules
and has submitted 19 reports. There is also a similar committee of the Rajya Sabha which
was constituted in 1964. It discharges functions similar to the Lok Sabha committee. The
committee on subordinate legislation has made the following recommendations in order to
streamline the process of delegated legislation in India:
1. The power of Judicial review should not be taken away or curtailed by the rules.

2. A financial Levy or tax should not be imposed by rules.

3. The language of the rules should be simple and clear and not complicated or ambiguous.

4. Rules should not be given retrospective operation unless such a power has been expressly
conferred by the parent Act, as they may prejudicially affect the vested rights of a person.
5. Legislative policy must be formulated by the legislature and laid down in the statute, and
power to supply details may be left to the executive and can be worked out through the rules
made by the administration.
6. Sub delegation in very wide language is improper and some safeguards must be provided
before a delegate is allowed to sab delegate his authority to another functionary.
7. Discriminatory rules should not be framed by the administration.

8. Rules should not travel beyond the rule-making power conferred by the parent Act.

9. They should not be inordinate delay in making rules by the administration.

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10. The defects pointed out to the administration should be declared as soon as possible.

11. The rules framed by the administration and required to be laid before the house by the
parent Act should be late before Parliament as soon as possible, and whenever there is
inordinate delay, an explanatory note giving the reasons for such delay should be appended
to the rules so laid.
12. The final authority for interpretation of rules should not be with the administration.

13. Rules should contain short titles explanatory notes, references to earlier amendments for
convenience of location, ready references and proper understanding.
14. Sufficient publicity should be given to the statutory rules and orders.

In India parliamentary control of Administrative rulemaking is to be made a

living continuity as a constitutional necessity, it is necessary that the role of the committees
of Parliament must be strengthened, and a separate law like the statutory Instruments
Act 1946, providing for uniform Rules of laying and Publication, must be passed. The
committee may be supplemented by a specialized official body to make the Vigilance of
Administrative rulemaking more effective.

OTHER CONTROLS

Over and above judicial and parliamentary controls, sometimes other controls
and safeguards are also provided. One such safeguard against the abuse of delegated power
is to properly and precisely limit the power of the delegate. If the extent of power is not
properly defined in the parent act and the language used is very broad, the executive
authority may usurp some powers of the Legislature and may be tempted into unjustified
interference with the rights of the individual.
The court also should interpret the provisions of the rules and regulations in such a
manner as not to give blanket powers to the executive authority. But it has also been said that
it is inadvisable to depend on the good sense of the individuals, however high-placed they
may be. It is trite to say that individuals are and do become wise because they occupy the
seats of power. Good sense, circumspection and fairness do not go with the post. There is
only a complacent presumption that those who occupy High seats have a high sense of
responsibility. The presumption is neither legal nor rational. History does not support it and
reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it
would be both an advise and impolitic to leave any aspect of its life to be governed by
discretion when it can conveniently and easily be covered by the rule of law.

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 It is also argued that the delegation of power should be conferred only on
trustworthy authorities, for example Central Government, State governments, accept as these
authorities will exercise the power conferred on them in a reasonable manner.
In Maneka Gandhi v. Union of India, 1978 Supreme Court has observed it is true
that when the order impounding a passport is made by the central government, there is no
appeal against it, but it must be remembered that in such a case the power is exercised by the
central government itself and it can safely be assumed that the central government will
exercise the power in a reasonable and responsible manner. When power is vested in a high
authority like the central government, abuse of power cannot be lightly assumed.
In S.R. Bommai v. Union of India, 1994 SCC, dealing with the power of the
President to proclaim an emergency, it is necessary to retreat that the court must be
conscious while examining in collective exercise of power also there is no likelihood of
abuse of power.
In K. Ashok Reddy v. Government of India, 1994 SCC an action of transfer of a
judge of a High Court was challenged the decision was based on the collective exercise of
power by the High Constitutional functionaries on objective Criterion. Treating it as an
inbuilt safeguard on arbitrariness and bias, the supreme court observed "we have no doubt
that the Chief Justice of India acting on the institutional advice available to him is the surest
and the safest bet for the preservation of the independence of the judiciary.
Certain Central Acts provide some additional safeguards also. They empower the
State Governments to frame rules, but prior approval of the Central Government is
necessary, for example Section 17 of the Probation of Offenders Act, 1958. Some statutes
empower the government to frame rules subject to previous publication in the Official
Gazettes example Section 29 of the Minimum Wages Act, 1948. Sometimes, powers are
conferred on the government to frame rules for regulation only after consultation with the
affected interest, for example Section 59 of the Mines Act, 1952.

Plenary powers of law-making are entrusted to elected representatives. But in reality,

the political government, instructed by the bureaucracy gets bills passed through either by the
aid or whip or by other methods. Thus, law-making has remained, more or less, exclusive
prerogative of a small cross-section of elites. It affects not only the quality of the law made
by reinforces a centralized system of power. There must be, therefore be social auditing by
the public at large. Constitutional legitimation of unlimited power of delegation to the
executive by the legislature may, on critical occasions, be subversive of responsible

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Government and erosive of Democratic order. The system of law-making, therefore needs
careful and radical restructuring, if participative, pluralistic government by the people is not
to be jettisoned. As, Krishna Iyer J stated, "That prompts us to hint at certain portents to our
parliamentary system, not because they are likely now but because society may have to pay
the price someday".

Power to make subordinate or ancillary legislation may undoubtedly be conferred

upon a delegate, but the legislature must be conferring that power to disclose the policy of
principles or standards which are to govern the delegate in the exercise of that power so as to
set out a guideline. Any delegation which transgresses this limit infringes the constitutional
scheme.

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 ADVANTAGES AND DISADVANTAGES OF THE
DELEGATED LEGISLATION.

I. ADVANTAGES OF THE DELEGATED LEGISLATION:

Delegated legislation in the modern welfare state has certain advantages which can
be broadly summarised as follows
1. Modern legislators are crowded legislative and other activities do not have time to provide
for details, therefore, delegated legislation frees the legislature from concern with details and
thus enables it to concentrate its attention upon the enactment of the fundamentals of a
policy.
2. Since rules are more easily amended than statutes, it becomes easier to correct mistakes
and to meet changing conditions if the difficulty concerns details rather than the basic policy.
Thus, delegated legislation brings flexibility to legislation.
3. Modern legislation often deals with matters of a highly technical nature. The members of
the Legislature may not have the expert knowledge that is necessary for providing the
technical details. Delegated legislation can provide such expert knowledge as is necessary.
4. The administrator is the person who has intimate contact with the problems covered under
the legislation. Therefore, if details of working out the policy of the legislation are left to be
framed by the administrator, he can, by trial and error, work out the specific regulations best
calculated to attain the statutory objectives.
5. In the absence of delegated legislation, it is possible that the discretion given to the
administration will be very wide. Therefore, it is much better to regulate the discretion given
by the statutory generalities by framing specific and concrete rules.
6. In certain circumstances, the coming into effect of a particular legislation may be made
dependent upon the fulfillment of certain conditions. In such circumstances, given power to
the administration to bring into effect a particular legislation may be very useful.
7. In emergencies such as war, serious strikes and economic crisis, there would often not be
time to pass an Act, of legislation even if the legislature was in session. Quite often, such a
legislature may not be in session. In such circumstances, the rule-making powers under an
Act laying down broad policies may be very useful. For example, the rule-making powers
given under the Defence of India Act, 1962, were very useful in regulating the various

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aspects of the life of the nation with a view to promoting defense measures.

II. DISADVANTAGES OF THE DELEGATED LEGISLATION

Disadvantages of delegated legislation are as follows

1. No Parliament deliberation: the essence of a democratic form of government is

that the law passed by the legislature is the outcome of the collective wisdom of the
representatives. It is in the celebration of the Parliament and the consequent action
and reaction of opinion that makes a lot more acceptable to a community. But, in
the case of delegated legislation, the rules are framed in the ante-Chambers of the
bureaucrat. Therefore, the benefit of parliamentary deliberation is completely
denied to such rule-making process.
2. In Delegated legislation, such prior publicity may not be always possible, and
therefore, the process cannot benefit from public criticism.
3. Private knowledge is often denied: the modern system of administration of
justice according to the law is mostly based on the fiction that everyone is presumed
to know the law. Everyone is presumed to know the law because law is certain.
But, in the case of delegated legislation, there may not be either adequate publicity
or a clear form of legislation. Further, the vast bulk of rules framed under various
statutory enactments make it almost impossible for an ordinary citizen to know the
rules.

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 UNIT - III

 Judicial power of Administration

 Tests to determine when an administrative authority required

to act judicially

 Doctrine of Bias

 Doctrine of Audi Altrem Partem

 Reasoned decision

 Exceptions to Natural Justice

 Effect of non-compliance with rules of Natural Justice

JUDICIAL CONTROL OF ADMINISTRATIVE AUTHORITIES

Quasi-judicial implies that the act is not wholly judicial and that it describes not only a duty
cast on the executive body or authority to conform to the forms of judicial procedure in
performing some acts in exercise of executive power.

‘Quasi-Judicial’ is the appellation applied when an administrative body discharges an

adjudicatory/judicial function. When there is a contest (lis) between two contending parties,
and the authority adjudicates upon the rights of the parties, the authority acts is a quasi-
judicial manner. But presence of Lis is not always necessary for characterizing the function as
Quasi- Judicial. Even when there is no lis, and there are no two contending parties before the
concerned authority, its function may be characterized as quasi-judicial to act judicially.

In Ridge v. Baldwin14 It was held that the duty to act judicially may arise from the very nature
of the function performed by the authority. The ratio in this case was approved by the
Constitution Bench of the Supreme Court in the celebrated case of Maneka Gandhi.15

14
1964 AC 40; (1963)2 All ER
15
AIR 1978 SC 597

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The authority exercising quasi-judicial power is not bound by guidelines issued by a higher
authority and has to take an independent view. A departmental proceeding is a quasi- judicial
proceeding and the enquiry officer performs a Quasi-judicial function. An enquiry officer is a
Quasi-judicial Authority.

There are two important incidents of a quasi-judicial function:

1. The concerned authority has to observe principles of natural justice.

2. Once a decision has been taken by the concerned authority, it cannot review
its own decision unless it has statutory authority to do so.

The character of a decision can be determined from the manner in which the decision is
arrived at. Whether an act is judicial or quasi-judicial or purely executive depends on the
terms of the particular rules and the nature, scope and effect of a particular power in exercise
of which the act may be done and would therefore depend upon the facts and circumstances
of each particular case,'" If the statute is silent the nature of 'the decision must be inferred
from the general scheme of the act, its provisions or their objectives.

Words like 'is of the opinion ' 'if it appears to be', considers likely to be secured' 'reasonable
grounds to believe' are indicative of subjective approach. The decision is executive even
though there is a provision for appeal, or a provision making the order subject to
confirmation by some other authority. But if the decision involves a determination of issues
between a proposal and an opposition involving the respective rights of the parties, the
decision is quasi-judicial.

Acts of an administrative authority may be purely administrative or may be legislative or

judicial in nature. Decisions which are purely administrative stand on a wholly different
footing from judicial as well as quasi-judicial decisions and they must be distinguished. This
is a very difficult task. “Where does the administrative end and the judicial begin? The
problem here is one of demarcation and the courts are still in the process of working it out.”

With the increase of power of administrative authorities, it may be necessary to provide

guidelines for the just exercise thereof. To prevent abuse of power and to see that it does not
become a ‘new despotism,’ courts have evolved certain principles to be observed by
adjudicating authorities.

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To appreciate the distinction between administrative and quasi-judicial functions, we have to
understand two expressions

(i) ‘lis’, and

(ii) ‘quasi-Lis’

One of the major grounds on which a function can be called ‘quasi-judicial’ as distinguished
from pure ‘administrative’ is when there is a lis inter parte and an administrative authority is
required to decide the dispute between the parties and to adjudicate upon the lis. Prima facie,
in such cases the authority will be regarded as acting in a quasi-judicial manner.

Certain administrative authorities have been held to be quasi-judicial authorities and their
decisions regarded as quasi-judicial decisions, wherein such lis was present, e.g. a Rent
Tribunal determining ‘fair rent’ between a landlord and tenant, an Election Tribunal deciding
an election dispute between rival candidates, an Industrial Tribunal deciding an industrial
dispute, a Licensing Tribunal granting a licence or permit to one of the applicants.

QUASI-LIS

But it is not in all cases that the administrative authority is to decide a lis inter partes. There
may be cases in which an administrative authority decides a lis not between two or more
contesting parties but between itself and another party. But there also, if the authority is
empowered to take any decision which will prejudicially affect any person; such decision
would be a quasi-judicial decision provided the authority is required to act judicially.

Thus, where an authority makes an order granting legal aid, dismissing an employee, refusing
to grant, revoking, suspending or cancelling a licence, cancelling an examination result of a
student for using unfair means, rusticating of a pupil, etc. such decisions are quasi-judicial in
character.

In all these cases there are no two parties before the administrative authority, ‘and the other
party to the dispute, if any, is the authority’ itself. Yet, as the decision given by such authority
adversely affects the rights of a person there is a situation resembling a lis. In such cases, the
administrative authority has to decide the matter objectively after taking into account the
objections of the parties before it, and if such authority exceeds or abuses its powers, a writ of
certiorari can be issued against it. Therefore, Lord Greene, M.R. rightly calls it a ‘quasi-lis.’

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DUTY TO ACT JUDICIALLY

The real test which distinguishes a quasi-judicial act from an administrative act is the duty to
act judicially, and therefore, in considering whether a particular statutory authority is a quasi-
judicial body or merely an administrative body, what has to be ascertained is whether the
statutory authority has the duty to act judicially.

The question which may arise for our consideration is as to when this duty to act judicially
arises. As observed by Parker, J. “the duty to act judicially may arise in widely different
circumstances which it would be impossible, and indeed, inadvisable, to attempt to define
exhaustively.”

Whenever there is an express provision in the statute itself which requires the administrative
authority to act judicially, the action of such authority would necessarily be a quasi-judicial
function. But this proposition does not say much, for it is to some extent a tautology to say
that the function is quasi-judicial (or judicial) if it is to be done judicially.

Generally, statutes do not expressly provide for the duty to act judicially and, therefore, even
in the absence of express provisions in the statutes the duty to act judicially should be
inferred from ‘the cumulative effect of the nature of the rights affected, the manner of the
disposal provided, the objective criterion to be adopted, the phraseology used, the nature of
the power conferred, of the duty imposed on the authority and the other indicia afforded by
the statute.

DUTY TO ACT FAIRLY

Since ‘fairness in action’ is required from Government and all its agencies, the recent trend is
from ‘duty to act judicially’ to ‘duty to act fairly.’ ‘Duty to act fairly’ is indeed a broader
notion and can be applied even in those cases where there is no lis. It is this concept (‘duty to
act fairly’), which has given rise to certain new doctrines, e.g. ‘fair play in action’, legitimate
expectations, proportionality etc.

CASES

Province of Bombay v. Khushaldas S. Advani,16 was the first leading Indian decision on the
point. Under Section 3 of the Bombay Land Requisition Ordinance, 1947, the Provincial

16
AIR 1950 SC 222

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Government was empowered to requisition any land for any public purpose “if in the opinion
of the Government” it was necessary or expedient to do so. It was contended that the
Government while deciding whether requisition was for a public purpose, had to act
judicially. The High Court of Bombay upheld the said contention. Reversing the decision of
the High Court, the Supreme Court held by a majority that the governmental function of
requisitioning property was not quasi- judicial, for the decision was based on the subjective
satisfaction of the Government and it was not required to act judicially.

Similarly, in R. v. Metropolitan Police Commr., ex p. Parker, a cab driver’s licence was

revoked on the ground of alleged misconduct without giving reasonable opportunity to him to
rebut the allegations made against him. The court upheld the order on the ground that the
licence was merely a permission which could be revoked at any time by the grantor, and in
doing so he was not required to act judicially.

TEST

No ‘cut and dried’ formula to distinguish quasi-judicial functions from administrative

functions can be laid down. The dividing line between the two powers is quite thin and being
gradually obliterated. For determining whether a power is an administrative power or a quasi-
judicial power, one has to look to the nature of the power conferred, the person or persons on
whom it is conferred, the framework of the law conferring that power, the consequences
ensuing from the exercise of that power and the manner in which that power is expected to be
exercised.

The requirement of acting judicially in essence is nothing but a requirement to act justly and
fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the
exercise of quasi-judicial power are merely those which facilitate if not ensure a just and fair
decision. In recent years, the concept of quasi-judicial power has been undergoing a radical
change. What was considered as an administrative power some years back is now being
considered as a quasi-judicial power.

Whether a particular function is administrative or quasi-judicial must be determined in each

case on an examination of the relevant statute and the rules framed thereunder and the
decision depends upon the facts and circumstances of the case.

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At one time prerogative remedies of certiorari and prohibition were confined to ‘judicial’
functions pure and simple of public bodies. They both are now available in relation to
functions which may be regarded as ‘administrative’ or even ‘legislative.’ As it is said, it is
not the label that determines the exercise of jurisdiction of the court but the quality and
attributes of the decision. "On the whole the test of justiciability has replaced that of
classification of function as a determinant of the appropriateness of a decision for judicial
review.”

few points for consideration as observed by the Supreme Court of India.

1. Lis inter parties- dispute b/w 2 parties. - Associated cement companies v. P.N
Sharm, Bhopal gas tragedy case

2. Nature of rights affected (fundamental or civil Rights or legal rights). - R v

metropolitan commissioner

3. Express/ implied provision in the statute- Statute mandates it. - Eg: revocation of the
land allotted by the co-operative Society.

4. The statutory authority has power to act which may be prejudicial to subject.-
Keshav mills co ltd v Union of India When authority required to act judicially?

5. An authority which possesses the powers of a court -Where authority has a power
to summon witnesses, documents, examination on oath pass orders by giving
reasons.

6. Adverse effect on rights or interests of parties or disadvantageous to the interests of

the public –
Manish dixit& others v State of Rajasthan

7. The very nature of function that was intended to be performed– adjudication of

professional misconduct cases by BCI members. Departmental enquiries require a
judicial mind– whereas fixation of price, issuing of license, renewal of license,
public Policy matters such as issuance of caste certificate cannot be considered
Quasi- judicial function and does not require principles of natural Justice. Auction
sale by a company during its winding up proceedings (auction Purchaser and

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 creditor)– given by the labor commissioner in an appeal– postponement of
examination during emergent situation Acting judicially- PNJ acting fairly-Basic
fairness such as consultation.

QUASI JUDICIAL DECISION

The English Courts have treated every administrative act as judicial if it adversely affected
any person's right, or as Lord Parker puts it 'entailed penalty'. The Courts for the purpose of
granting writs of certiorari or prohibition insisted the requirement of 'duty to act judicially'
on the part of the body performing the act. Whenever the Court forgot the paradoxical sense
which they invented for 'judicial' they found themselves in difficulty. To say that natural
justice must be observed when the function is judicial, and the function is called judicial
when natural justice ought to be observed is a circular argument. If every power affecting
some person's right is called judicial there is virtually no meaning left for administrative
power. The term quasi-judicial was brought into vogue as an epithet for powers which,
though administrative, were required to be exercised as if they were judicial, i.e., in
accordance with natural justice. The Committee on Minister's Powers emphasized that a
judicial decision consists of finding facts and applying law, where as a quasi-judicial
decision consists of finding facts and applying administrative policy.

A quasi-judicial decision is, a decision by an executive which has some judicial

characteristics but not all. The term quasi-judicial is used in the sense that the power of
adjudication is entrusted to a person or body outside the system of ordinary courts. In
another sense a quasi-judicial decision is one which involves determination of executive
policy rather than law.' The Committee on Minister's Powers suggested that the judicial
powers should be conferred. on ordinary courts, save only in exceptional cases where it can
be conferred on administrative tribunals.

The nature and character of a decision whether it is quasi-judicial or only executive under a
statute depends upon the terms of the statute irrespective of the function whether it has duty

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and jurisdiction to decide controversies as a judicial body. A quasi-judicial decision should
be objective, based on evidence, by determinate authority who should not have the right to
delegate such a function of a judicial character.
PRINCIPLES OF NATURAL JUSTICE

Natural Justice is a “fairplay in action and the doctrine of Natural Justice seeks not only to
secure justice but also prevent miscarriage of justice. Principles of Natural Justice which are
judge made rules and still continue to be a classical example of Judicial Activism were
developed by the courts to prevent accidents in the exercise of outsourced power of
Adjudication entrusted to the administrative authorities.

In India there is no statute laying down the minimum procedure which administrative
agencies must follow while exercising the decision making powers. Courts have always
insisted that the administrative agencies must follow minimum of fair procedure. The
Minimum fair procedure refers to the principles of natural justice.

Rules of Natural justice have developed with the growth of civilization, and the content
thereof is often considered as a proper measure of the level of civilization and rule of law
prevailing in the community. Natural justice implies fairness, reasonableness, equity and
equality. Natural justice is a concept of common law, and it is the common-law world
counterpart of the American “Due Process” and civil law “proportionality”.

The expressions natural justice and illegal justice do not present a watertight classification. It
is the substance of justice which is to be secured by both, and whenever legal justice fails to
achieve this purpose, natural justice is called in aid of legal justice. Natural justice contents
either to change with exigencies of different situations and therefore do not apply in the same
manner to situations which are not alike for this stuff they are neither cast in a rigid mold nor
can they be put in a legal state jacket.

Natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation,
administration and Adjudication to make Fairness a creed of life. It has many colors and
shades, many forms and shapes, and save where valid law excludes it, A place when people
are adversely affected by acts of any administrative authority. It is the bane of a healthy
government, recognized from earliest times and not a mystic testament of a judge made law.
Natural justice represents higher procedural principles developed by Judges which every

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administrative agency must follow when taking any decision adversely affecting the rights of
a private individual.

The Principles of natural justice are not fixed, but are flexible and variable. These principles
cannot be put in a straight jacket. Their applicability depends upon the context and the facts
and circumstances of each case. To sustain the complaint of the violation of principles of
natural justice one must establish that he was prejudiced for non-observance of the principles
of natural justice. The principles of natural justice are not rigid, immutable or “embodied”
rules, but are flexible.

Natural justice is another name for common sense justice and is based on the natural sense of
man of what is right and what is wrong. Natural justice is not an articulation of any Saint or
Sage. Natural law has inherent rationality which is in conformity with the natural justice and
may lead to all right conclusions. Application of the principles of natural justice can improve
the quality of administrative decision, enforce rule of law and accountability in the
administration and show respect for human dignity. Thus, the basis of all positive law is
natural justice.

Rules of natural justice are not codified cannons. They are principles ingrained in the
conscience of man. Justice is based at substantially on natural ideals and values which are
universal. Natural justice is not circumscribed by linguistic technicalities and grammatical
niceties or logical prevarication. The purpose of Principles of natural justice is prevention of
miscarriage of justice and hence observance thereof is the pragmatic requirement of fair play
in action.

i) Nemo judex in re sua, i.e., the authority deciding the matter should be free from
bias- Rule against bias -No one should be made judge in his own cause, or the rule against
bias- Nemo in propria causa judex, esse debet.

ii) Audi alteram partem, i.e., a person affected by a decision has a right to be heard-
Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned
unheard.

These are the two principles now transparency and good governance may be added as a new
dimension which includes the duty to pass a speaking order. The principles of natural justice
have enriched law and Constitutions the world over. Though the Indian Constitution does not

122
use the expression natural justice, the concept of natural justice divested of all its
metaphysical and theological trappings pervades the whole scheme of the Constitution.

The concept of social and economic justice, in the preamble of the Constitution, conceptually
speaking, is the concept of fairness in social and economic activities of society, which is the
basis of the principles of natural justice.

The duty to act fairly is part of fair procedure, as envisaged under Articles 14 and 21 of the
Constitution. Every activity of a public authority or those under public duty or obligation
must be informed by reason and guided by public interest. Exercise of jurisdiction by courts
in India, in this behalf is not something extra Constitutional. Now the principals of natural
justice are firmly grounded in Articles 14 and 21 of the Constitution.

Article 21 of the Constitution, all that fairness which is included in the principles of natural
justice can be read into Article 21 when a person is deprived of his life and personal Liberty.
In other areas, it is Article 14 which now incorporates the principles of natural justice. Article
14 now applies not only to discriminatory class legislation but also to arbitrary or
discriminatory state action. Because violation of natural justice results in arbitrariness,
therefore, violation of natural justice is violation of the equality clause of Article 14. This all
suggests that now the principles of natural justice are grounded in the Constitution.

The principles of natural justice cannot be wholly disregarded by law because this would
violate the fundamental rights guaranteed by Articles 14 and 21 of the Constitution. It was for
this reason that the Supreme Court barely saved a Section 314 of the Bombay Municipal
Corporation Act, 1888 which empowered the commissioner to get illegal constructions and
structures removed or demolished without notice by holding that Section 314 does not
contain a command, and only give discretion to the commissioner which must be reasonably
exercised.

In D.K Yadav v. J.M.A. Industries Ltd.,17 The Supreme Court further held that even where
statutory standing orders empowered the management to terminate the services of an
employee, who is denied of livelihood, without hearing, the termination of services would be
violative of Article 21 of the Constitution, as such a procedure established by law which
deprives a person of his livelihood cannot be said just, fair and reasonable under Article 21 of
the Constitution.

17
(1993) 3 SCC 259

123
SITUATIONS IN WHICH PRINCIPLES OF NATURAL JUSTICE ARE
ATTRACTED

Principles of natural justice are attracted whenever a person suffers a severe consequence, or
a prejudice is caused to him by any administrative action.

Civil consequences mean in fraction of personal or property rights, violation of civil liberties,
material deprivation or sufferance of non-pecuniary damages. Loss of legitimate expectation
may also attract to the principles of natural justice. Thus, where a person cannot justify his
claim on the basis of any law but suffer a prejudice or adverse consequences, he is entitled to
the benefit of the principles of natural justice. Therefore, in comprehensive connotation,
every administrative action that causes a rigidized or harm or adverse consequences in his
civil life, inflicts civil consequences.

n Dev Dutta v. UOI,18 Supreme Court held that do office rule provides for communication of
an adverse entry in the confidential report, yet even good entry is also to be communicated if
it eliminates a person from promotion. Natural justice which is a facet of Article 14 of the
Constitution overwrites all contrary rules. It is now settled that mere breach of the principles
of natural justice is not sufficient for judicial intervention unless such breach also entails
avoidable prejudice caused to the person. Nevertheless, the applicability of the principles of
natural justice is not dependent on any statutory provisions. Wherever a prejudice is caused
the principles or necessarily attracted

Nemo judex in re sua

The first principle of natural justice consists of the rule against bias or interest and is based on
three maxims:

• ‘No man shall be the judge in his own case’

• ‘Justice should not only be done, but manifestly and undoubtedly be seen to be
done.’
• ‘Judges, like Caesar’s wife, should be above suspicion.’

18
(2008) 8 SCC 275

124
According to the dictionary meaning ‘anything which tends or may be regarded as tending to
cause such a person to decide a case otherwise than on evidence must be held to be biased.’ A
predisposition to decide for or against one party, without proper regard to the true merits of
the dispute is bias.

The first requirement of natural justice is that the Judge should be impartial and neutral and
must be free from bias. He is supposed to be indifferent to the parties to the controversy. He
cannot act as Judge of a cause in which he himself has some interest either pecuniary or
otherwise as it affords the strongest proof against neutrality. He must be in a position to act
judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental
equipoise must always remain firm and undeflected. He should not allow his personal
prejudice to go into the decision- making. ‘The object is not merely that the scales be held
even; it is also that they may not appear to be inclined.’

If the Judge is subject to bias in favor of or against either party to the dispute or is in a
position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings
will be vitiated. This rule applies to the judicial and administrative authorities required to act
judicially or quasi-judicially. Bias means an operating prejudice, whether conscious or
unconscious in relation to a party or issue. Such operating prejudice may be the result of a
preconceived opinion or a predisposition or a predetermination to decide a case in a particular
manner, so much so that it does not leave the mind open. In other words, bias may be
generally defined as partiality our preference which is not founded on reason and is actuated
by self-interest whether pecuniary or personal. Therefore, the rule against bias strikes against
those factors which may improperly influence a judge in arriving at a decision in any
particular case.

The requirement of this principle is that the judge must be impartial and must decide the case
objectively on the basis of the evidence on record the dictionary meaning of the word by us
also suggests that anything which tends or may be regarded as tending to cause a such person
to decide a case otherwise an evidence must be held to be biased. In other words,
predisposition to decide for or against one party without regard to the merits of the case is
bias. Therefore, if a person for whatever reason cannot take an objective decision on the basis
of evidence on record, he shall be said to be biased. A person cannot take an objective
decision in a case in which he has an interest, for, as human psychology tells us, very rarely
can people take decisions against their own interests.Therefore, the maxim that a person

125
cannot be made a judge in his own cause. The Supreme Court in Crawford Bayley & Co. v.
UOI,19 restated that the doctrine of rule against bias comes into play if it's shown that the
officer concerned has a personal connection or personal interest or has personally acted in the
matter concerned and or has already taken a decision one way or the other which he may be
interested in supporting. This rule of disqualification is applied not only to avoid the
possibility of a partial decision but also to ensure public confidence in the impartiality of the
administrative adjudicatory process because not only must no man be a judge in his own
cause, but also “justice should be not only be done but should manifestly and undoubtedly be
seen to be done”.

Every kind of preference is not sufficient to vitiate an administrative action. If a preference is

rational and accompanied by considerations of personal interest, pecuniary or otherwise, it
would not vitiate a decision. Therefore, if a senior officer expresses appreciation of the work
of a junior in the confidential report, it would not amount to bias nor would it preclude the
officer from being a part of the departmental promotion committee to consider such junior
officer along with other for promotion. Bias manifests itself variously and may affect a
decision in a variety of way

TYPES OF BIAS

1. Pecuniary bias

2. Personal bias

3. Official bias or bias as to subject-matter, and

4. Judicial obstinacy

5. Departmental or Institutional bias

6. Policy Notion bias

7. Preconceived notion bias

8. Bias on account of obstinacy

PECUNIARY BIAS

19
(2006) SCC 25

126
It is well-settled that as regards pecuniary interest ‘the least pecuniary interest in the subject-
matter of the litigation will disqualify any person from acting as a Judge.’ Griffith and Street
rightly state that “a pecuniary interest, however slight, will disqualify, even though it is not
proved that the decision is in any way affected.” Judicial approach is unanimous and this
issue on the point that any financial interest, howsoever small it may be, would vitiate
administrative action.

In Halsbury's Laws of England, it is stated, “There is a presumption that any financial

interest, however small, in the matter in dispute disqualifies a person from adjudicating.”

Dimes v. Grant Junction Canal, 20 is considered to be the classic example of the application
of the rule against pecuniary interest. In this case, the suits were decreed by the Vice
Chancellor and the appeals against those decrees were filed in the Court of Lord Chancellor
Cottenham. The appeals were dismissed by him and decrees were confirmed in favor of a
canal company in which he was a substantial shareholder. The House of Lords agreed with
the Vice-Chancellor and affirmed the decrees on merits. In fact, Lord Cottenham’ s decision
was not in any way affected by his interest as a shareholder; and yet the House of Lords
quashed the decision of Lord Cottenham.

PERSONAL BIAS

The second type of bias is a personal one. A number of circumstances may give rise to
personal bias. Here a Judge may be a relative, friend or business associate of a party. He
may have some personal grudge, enmity or grievance or professional rivalry against such
party. In view of these factors, there is every likelihood that the Judge may be biased
towards one party or prejudiced towards the other. Personal bias arises from a certain
relationship equation between the deciding authority and the parties which incline him
unfavorably or otherwise on the side of one of the parties before him.

Such equation may develop out varied forms of personal other professional hostility or
friendship. However, no exhaustive list is possible. Real likelihood of bias or reasonable
suspicion of bias: However, in order to challenge an administrative action successfully on
the ground of personal bias, it is essential to prove that there is a reasonable suspicion of

20
HL 26 (1852)

127
bias or a real likelihood of bias. The reasonable suspicion test looks mainly to outward
appearance, and the real likelihood test focuses on the court’s own evaluation of
possibilities. However, in practice, the tests have much in common with one another and in
the vast majority of cases; they will lead to the same result.

In this area of bias, the real question is not whether a person was bias. It is difficult to prove
the state of mind of a person. Therefore, what the court sees is whether there are reasonable
grounds for believing that the deciding officer was likely to have been biased. In deciding
question of bias, judges now to take into consideration the human possibilities and the
ordinary course of human conduct. But there must be real likelihood of bias and not mere
suspicion of bias before the proceedings can be quashed on the Ground that the person
conducting the proceedings is disqualified by bias.

The apprehension must be judged from a healthy, reasonable and average point of view and
the not on mere apprehension and vague suspicion of whimsical, capricious and unreasonable
people Therefore, the real test of real likelihood poses whether reasonable man, in possession
of relevant information, would have thought that bias was likely and whether the authority
concerned was likely to be disposed to decide the matter in a particular way. Therefore, the
test is not what actually happened but the substantial possibility of that which appeared to
have happened. The reason is plain enough, writes Lord Denning, justice must be rooted in
confidence and confidence is destroyed when right minded people go away thinking the
judge was biased.

In the leading case of A.K. Kraipak v. Union of India,21 one N was a candidate for selection
to the Indian Foreign Service and was also a member of the Selection Board. N did not sit on
the Board when his own name was considered. Name of N was recommended by the Board
and he was selected by the Public Service Commission. The candidates who were not
selected filed a writ petition for quashing the selection of N on the ground that the principles
of natural justice were violated. Supreme Court held that there was a real likelihood of bias,
for the mere presence of candidate on the selection board may adversely influence the
judgment of the other member.

In Manaklal v. Prem chand22 in order to decide a complaint for professional misconduct filed

21
(1969) 2 SCC 262
22
AIR 1957 SC 425

128
by doctor Premchand against Manaklal, an advocate of the Rajasthan High Court, the High
Court appointed tribunal consisting of a senior advocate once Advocate General of Rajasthan
as chairman. The decision of the tribunal was challenged on the ground of personal bias
arising from the fact that chairman had represented him and in an earlier case. The Supreme
Court refused order to quash the action holding that the chairman had no personal contact
with his client and did not remember that he appeared on his behalf and that therefore there
seemed to be no real likelihood of bias. However, the high professional standards led the
court to quash the action in the final analysis on the ground that justice should not only be
done but must appear to have been done.

In G.N Nayak v. Goa University,23 a senior officer expresses appreciation of the work of a
junior officer in his confidential report. He was also a member of the Departmental
promotion committee to consider such a junior officer along with others for promotion. The
committee recommended this junior officer for promotion which was challenged on the
ground of personal bias actuated by an element of personal interest. The Supreme Court
held that unless preferences unreasonable and is based on self-interest, it will not vitiate an
administrative decision.

OFFICIAL BIAS – SUBJECT MATTER BIAS

The third type of bias is official bias or bias as to the subject-matter. This may arise when
the Judge has a general interest in the subject-matter. Those cases fall within this category
where the deciding officer is directly, or otherwise, involved in the subject matter of the
case. Here again mere involvement would not vitiate the administrative action unless there
is a real likelihood of bias.

According to Griffith and Street, “only rarely will this bias invalidate proceedings.” A mere
general interest in the general object to be pursued would not disqualify a Judge from
deciding the matter. There must be some direct connection with the litigation. Wade
remarks that ministerial or departmental policy cannot be regarded as a disqualifying bias.

23
(2002) 2 SCC 712

129
In Gullapalli Nageswara Rao v. A.P.S.R.T.C.,24 the petitioners were carrying on a motor
transport business. The Andhra State Transport Undertaking published a scheme for
nationalization of motor transport in the State and invited objections. The objections filed by
the petitioners were received and heard by the Secretary and thereafter the scheme was
approved by the Chief Minister. The Supreme Court upheld the contention of the petitioners
that the official who heard the objections was ‘in substance’ one of the parties to the dispute
and hence the principles of natural justice were violated.

JUDICIAL OBSTINACY

In State of West Bengal. v. Shivananda Pathak, a writ of mandamus was sought by the
petitioner directing the Government to promote him. A Single Judge allowed the petition
ordering the authorities to promote the petitioner ‘forthwith.’ But the order was set aside by
the Division Bench. After two years, a fresh petition was filed for payment of salary and
other benefits in the terms of the judgment of the Single Judge (which was reserved in
appeal). It was dismissed by the Single Judge. The order was challenged in appeal which was
heard by a Division Bench to which one Member was a Judge who had allowed the earlier
petition. The appeal was allowed and certain reliefs were granted. The State approached the
Supreme Court.

Allowing the appeal and setting aside the order, the Apex Court described the case of a new
form of bias judicial obstinacy. It said that if a judgment of a Judge is set aside by a superior
court, the Judge must submit to that judgment. He cannot rewrite overrule judgment in the
same or in collateral proceedings. The judgment of the higher court binds not only to the
parties to the proceedings but also to the Judge who had rendered it.

DEPARTMENTAL OR INSTITUTIONAL BIAS

The problem of departmental bias is something which is inherent in the administrative

process, and if not effectively checked, it may negate the very concept of fairness in
administrative proceedings.

The question of departmental bias was considered by the Supreme Court in Nagaswara

24
AIR 1959 SC 1376

130
Rao25, In this case, the petitioner challenged the order of the government nationalizing road
transport. One of the grounds for challenge was that the secretary of the transport
Department who gave the hearing was bias, being the person who initiated the scheme and
also being the head of the Department, whose responsibility was to execute it. The court
quashed the order on the ground that, under the circumstances, the secretary was biased and,
hence no fair hearing could be expected.

Thereafter, the Act was amended and the function of hearing the objection was given over to
the minister concerned. The decision of the government was again challenged by Nageswara
raw on the ground of Departmental bias because the minister was the head of the
Department concerned which initiated the scheme and was also ultimately responsible for its
execution. However, on this occasion the Supreme Court rejected the challenge on the
ground that the minister was not a part of the Department in the same manner as a secretary
was. The reasoning of the court is not very convincing perhaps because, as observed earlier
Departmental bias is something which is inherent in the administrative process.

In Krishna Bus Service Pvt. Ltd. v. State of Haryana 26 The Supreme Court however
questioned the notification of the tournament which had conferred the powers of a deputy
Superintendent of police on the general manager, how do you are not always in matters of
inspection of vehicles on the ground of departmental bias. In this case, private bus operators
had alleged that the general manager of Haryana roadways who was a rival in business in
the state could not be expected to discharge his duties in a fair and reasonable Manner and
would be too lenient in inspecting the vehicles belonging to his own Department. The
reason for quashing the notification according to the Supreme Court was the conflict
between their duty and the interest of the Department and the consequential erosion of
public confidence in administrative justice.

However, where there is no such conflict between duty and interest of the Department,
concept of institutional buyers cannot be narrowly construed in view of compelling
institutional constraints.

POLICY NOTION BIAS

Bias arising out of preconceived policy notions is a very delicate problem of administrative

25
AIR 1959 SC 1376
26
(1985) 3 SCC 711

131
law. On one hand no judge as a human being is expected to sit as a blank sheet of paper and
on the other preconceived policy notions may vitiate may fair trial.

In Franklin v. Minister of Town and Country planning27 Also known as the Stevenage case,
in this case the appellant challenged the Stevenage Newtown designation order 1946, on the
ground that no fair hearing was given because the minister had entertained by us in his
determination which was clear from his speech at Stevenage when he said are you want to
carry out a dating exercise in town planning. Additional function but the problem still
remains that the bias arising from strong policy convictions may I put it as a more serious
threat to fair action than any other single factor.

Kondala Rao v. A.P.SRTC,28 the court did not crash the order of minister, who had heard the
objections of private operators nationalizing road transport on the ground that the same
minister had presided over a meeting only a few days earlier in which nationalization was
favored. The court rejected the contention on the ground that the decision of the committee
was not final and irrevocable but merely a policy decision.

PRECONCEIVED NOTION BIAS

This type of bias is also called as Unconscious bias. All persons exercising adjudicatory
powers are human with human prejudices no matter some persons are more humans than
others. This may include class bias and personality bias.

Every person is a product of your class and inherits some characteristics of that class which
may also reflect in his decision-making process. In the same manner every person’s
personality is a combination of his biological and social heredity which determine his values
and attitudes in a way that may condition his decision-making process. The problem of
unconscious by us is which is inherent in any adjudication and cannot be eliminated unless
detected by some overt action of the authority, and if so, detected can vitiate an
administrative hearing if it has a direct relation with the decision. This may include a
situation with the deciding officer openly expresses his prejudice.

The problem of bias arising from preconceived notions may have to be disposed of us an
inherent limitation of the administrative process. It is useless to accuse a public officer of
bias merely because he is predisposed in favor of some policy in the public interest.
27
1948 AC 87 (HL)
28
AIR 1961 SC 82

132
BIAS ON ACCOUNT OF OBSTINACY

The Supreme Court has discovered a new category of bias arising from thoroughly
unreasonable obstinacy. Obstinacy implies unreasonable and unwavering persistence, and
the deciding officer would not take no for an answer. this new category of bias was
discovered in a situation where a judge of the Calcutta High Court upheld his own
judgment while sitting in appeal against his own judgment. of course, a direct violation of
the rule that no George can sit in appeal against his own judgement is not possible, therefore
this rule can only be violated indirectly. In this case in a fresh reputation the judge validated
his own order in an earlier arithmetician which had been overruled by the division bench.
What applies to judicial process can be applied to administrative process as well.

Conclusion

Direct pecuniary interest, however small or slight it may be, will disqualify a person from
acting as a Judge. In case of other interests, however, the test should be of ‘reasonable
likelihood of bias.’ It must be based on reasonable apprehension of a reasonable man fully
apprised of all the facts. It is no doubt desirable that all Judges, like Caesar's wife must be
above suspicion. But it would be too much to hold that only those people who cannot be
suspected of improper motives are qualified to discharge judicial functions, else to quash
decisions on the basis of suspicions of fools or other capricious unreasonable people

A ground reality cannot be ignored that Judges are also human, and they have their likes and
dislikes, preferences and prejudices and it is too much to expect them to act as a machine
uninfluenced by worldly affairs

AUDI ALTERAM PARTEM

The Law of nature is based on the “ultimate principle of fitness with regard to the nature of man as
a rational and social being".' The twin pillars of natural justice are the two Latin maxinis nemo
judex in causa sua and audi olteram partem.’ A big leap in the application of the audi alteram
partem carne from the decision òf the House of Lords in Rijge v. Baldwin, 29 In this case the

29
(1963 (1) WB 569, 578)

133
dismissal of the plaintiff by the watch committee without giving him a hearing was declared a
nullity. Lord Reid giving a bit of certainty to this rule observed.

The principle audi alteram partem goes back many centuries in our law and appears in a
multitude of judgments of judges of the highest authority. In modern times opinions have
sometimes been expressed to the effect that natural justice is so vague as to be practically
meaningless. But I would regard these as tainted by the perennial fallacy that because
something cannot be cut and dried or nicely weighed or measured therefore it does not exist.
There are certain basic values which a man has always cherished. They can be described as
natural law or divine law. As a reasonable being, a man must apply this part of law to
human affairs. The underlying object of rules of natural justice is to ensure fundamental
liberties and rights of subjects. They thus serve public interest.

The golden rule which stands firmly established is that the doctrine of natural justice is not
only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in
a given situation; nothing more – but nothing less. This is the second long arm of natural
justice which protects the little man from arbitrary administrative actions whenever his right
to person or property is jeopardized .Thus, one of the objectives of giving a hearing in
application of the principles of natural justice is to see that an illegal action or decision does
not take place.

Audi alteram partem means ‘hear the other side’, or ‘no man should be condemned unheard’
or ‘both the sides must be heard before passing any order. . no man should be condemned
unheard, or both the sides must be heard before passing any order. This is the basic
requirement of rule of law. It has been described as ‘foundational and fundamental’ concept.
It lays down a norm which should be implemented by all courts and tribunals at national as
also at the international level.

To bring in the change for the Protection of Interest of People as per the need of Fair Trial,
fair adjudication must involve in itself the following points, the below image clearly depicts
the understanding of Fair trial.

134
 The right to be informed in advance of
the case to be met

The right to a reasonable time in which

to prepare a response

The right to be heard verbally or in

writing

The right to cross-examine

The right to be legally represented

The right to reasons for the decision

The main aim

im is that a person should be treated fairly the right to a fair hearing is a flexible
concept. This means that its requirements are not fixed or constant – i.e. it is not possible to
state that whenever the rule applies its content must always consist of all the elements listed
above. The case law illustrates that the requirements of a fair hearing will vary from case to
case depending on the circumstances of each case.

RIGHT TO NOTICE

The term notice originated from the Latin word notitia which means being known. In its
popular sense it is equivalent to information, intelligence or knowledge. In legal sense it
embraces knowledge of circumstances that ought to induce suspicion or belief, as well as
direct information of that fact.

Notice embodies rule of fairness and must precede an adverse order. It should be clear and
precise so as to give the party adequate information of the case he has to meet Phil stuff time

135
given should be adequate for a person so that he could prepare an effective defense full stuff
denial of notice and an opportunity to respond make an administrative decision completely
vitiated. It is the starting point of any hearing. Unless a person knows the formulation of
subjects and issues involved in the case, he cannot defend himself. It is not enough that the
notice in a case is given, but it must be adequate also. The adequacy of notice is a relative
term and must be decided with reference to each case. But generally, a notice in order to be
adequate must contain the following. In a Clockwise direction the below image clearly
depicts.

Legal authority
Time place and
under which
nature of
hearing is to be
hearing
held

Particular
Statement of
penalty or action
specific charges
which is
which the person
proposed to be
has to meet
awarded or taken

The object of a notice is to give an opportunity to the individual concerned to present his
case and, therefore, if the party is aware of the charges or allegations, a formal defect would
not invalidate the notice, unless prejudice is caused to the individual. If the government
servant is placed under suspension and the inquiry is held at a different place from the place
of his residence and he is not able to attend the inquiry due to nonpayment of subsistence
allowance, the inquiry is vitiated. Whether prejudice is caused or not is a question of fact
and it depends upon the facts and circumstances of the case.

The notice must give a reasonable opportunity to comply with the requirements mentioned
therein. Thus, to give 24 hours’ time to dismantle a structure alleged to be in a dilapidated
condition is not proper and the notice is not valid. If the inquiry is under Article 311 of the

136
Constitution of India, two notices (first for charges or allegations and second for proposed
punishment) should be given. Where a notice regarding one charge has been given, the
person cannot be punished for a different charge for which no notice or opportunity of being
heard was given to him.
In State of U.P. v. Vam Organic Chemicals Ltd.,30 The Supreme Court stressed that before
any notices issued, there must exist sufficient reasons for your proposal action for which
notice is to be issued. Therefore, reasons are a precondition for issuing the notice, and these
must be contained in notice. In this case a person was granted recognition certificate for
dealing in certain items. Thereafter, government decided to delete certain items from the
certificate. Sufficient reasons are a precondition before notice is issued and they should
form part of the notice. The code further emphasized that even if it is a rectification of a
mistake, notice must be given very a person would suffer a serious prejudice. Rectification
cannot die vest a vested right.

In Joseph Vilanganandan v. Executive Engineer31, The court held that the notice given was
inadequate. The facts of this case where that when the appellant did not start the contract
work within time, he received a letter from the executive engineer in which other 11 to
sentence was you are, therefore requested to show cause within Seven days from the receipt
of this notice why the welcome may not we’re injured otherwise at your risk and loss
through other agencies after debugging you as a default are.The replay container his
statement that the delay was caused by the conduct of the respondent. There after the
contract was cancelled and the appeal it was debarred from all future contracts under the
PWD. Washing the order, the Supreme Court held that the words debarring you as a default
are did not give adequate notice to the appellant of the fact that he would be divided from all
future contracts without PWD.

Article 21 of the Constitution requires that a detenu must be furnished with the grounds of
detention and if the grounds are vague the detention order may be crushed by the code. In
other areas of administrative action, a notice has been held to be vague if it does not specify
the action proposal to be taken or the property proposal to be acquired or the grounds on
which license is to be cancelled. Requirement of notice, mandated by statute, can be waived
if it is solely for the benefit of the individual concern.

HEARING

30
(2010) 6 SCC 222
31
(1978) 3 SCC 36

137
The second requirement of Audi alteram partem maxim is that the person concerned must be
given an opportunity of being heard before any adverse action is taken against him.

In the historic case of Cooper v. Wandsworth Board of Works,32 the defendant Board had
power to demolish any building without giving any opportunity of hearing if it was erected
without prior permission. The Board demolished the house of the plaintiff under this
provision. The action of the Board was not in violation of the statutory provision. The court
held that the Board's power was subject to the qualification that no man can be deprived of
his property without having an opportunity of being heard.

The extent of opportunity of hearing to be given is neither dependent upon the quantum of
loss to the aggrieved person nor referable to the fatness of the stake but is essentially related
to the demands of a given situation. Therefore, if a show cause notice is issued and the
explanation is considered before taking action under the statutory provisions, the rules of
natural justice cannot be said to have been violated on the ground that more opportunity
should have been afforded as a huge amount was at stake.

Disclosure of Materials

An adjudicating authority must disclose all evidence and material placed before it in the
course of proceedings and must afford an opportunity to the person against whom it is
sought to be utilized.

The object underlying such disclosure is to afford an opportunity to the person to enable him
to prepare his defense, rebut the evidence relied upon by the complainant against him and
put forward his case before the authority.

RIGHT TO KNOW AN EVIDENCE

Every person before an administrative authority exercising adjudicatory powers has the right
to know the evidence to be used against him. This principle was firmly established in
Dhaksheshwari Cotton mills v. CIT,33 In this case, appellate income tax tribunal did not
disclose the information supplied to it by the Department. The Supreme Court held that the
SEC was not given a fair hearing. However, the supply of adverse material unless the law
otherwise providers in original farm is not necessary. It is sufficient if the somebody after
contents of the material is applied, provided it is not misleading. A person may be allowed to

32
(1863) 143 ER 414

33
(1955)SC 154

138
inspect the file and to take notes whatever more is used to come up the fundamental remains
the same that nothing should be used against the person which has not been brought to his
notice.

RIGHT TO PRESENT CASE AND EVIDENCE/ ORAL HEARING

The Adjudicatory authority should afford a reasonable opportunity the party to present his
case. This can be done through writing or orderly at the discretion of the authority, unless
the statute under which the authority is functioning directs otherwise. The requirements of
natural justice are met only if an opportunity to justice are not met even if the very person
preceded against has been furnished information on which the action is based, if it is
furnished in a casual way or for some other purposes. This does not mean that the
opportunity needs to be a double opportunity, that is one opportunity on the factual
allegations and another on the proposal penalty but both may be rolled into one.

Courts are unanimous on the point that oral hearing is not an integral part of Fair hearing
unless the circumstances are so exceptional that without an oral hearing a person cannot put
up an effective defense. Therefore, where complex legal and technical questions are
involved, or where the stakes are very high, oral hearing shall become a part of Fair
hearing74.

In A.K. Roy v. UOI, 34 Supreme Court held that if the detenu desires to examine any
witnesses, he shall have to keep them present at that point at a time and no obligation can be
cast on the Advisory Board to someone them. The board can also limit the time within
which the detenu must complete his evidence.

The right to rebut adverse evidence presupposes that the person has been informed about the
evidence against him. In Dhakeshwari cotton Mills limited, the court quashed the order of
the tax tribunal where the information supplied by the Department against the assesses was
not disclosed to him. This does not, however, necessitate the supply of adverse material in
original in all cases. It is sufficient if the summary of the contents of the adverse material is
made available, provided it is not misleading.

The opportunity to rebut evidence necessarily involves the consideration of two factors:

34
(1982) 1 SCC 271

139
 1. Cross examination and 2. Legal representation.

Cross- Examination

Cross-examination was never considered to be part and parcel of the doctrine of natural
justice. It always depends upon the facts and circumstances of each case whether an
opportunity of cross-examination should be given to a party against whom proceedings have
been initiated.

If a statute permits cross-examination of witnesses examined at the inquiry or adjudication,

obviously, the opposite party can claim right to cross-examine them. Normally, in
disciplinary proceedings as also in domestic inquiries, right of cross examination is not
denied.

Legal Representation

Normally representation through a lawyer in any administrative proceeding is not

considered an indispensable part of the rule of natural justice, as oral hearing is not included
in the minima of Fair hearing. This detail of legal representation is justified on the ground
that lawyers tend to complicate Matters, prolong the proceedings, and destroy the essential
informality of the proceedings. It is further justified on the ground that representation
through a lawyer of choice would give an edge to that rich over the poor who cannot afford
a good lawyer.

The courts in India have held that in situations where the person is illiterate, or the matter is
complicated and a technical, or expert evidence is on record, or a question of lawyers
involved, or the person is facing it rained prosecutor, some professional assistance must be
given to the party to make his right to defend himself meaningful.

In. M.H. Hoskot v. State of Maharashtra,35The Supreme Court held that while importing the
concept of Fair procedure in Article 21 of the Constitution, held that the right to personal
liberty implies provision by the state of free legal service to a prisoner who is indigent or
not, held that the right to personal Liberty implies provision by the state of free legal service
to a prisoner who is indigent or otherwise disabled from securing legal assistance where the
ends of justice call for such service.

35
(1978)3 SCC 544

140
In Khatri v. State of Bihar,36The Supreme Court further ruled that state is constitutionally
bound to provide legal aid to the poor or indigent accused not only at the stage of trail but at
the time of remind also. Such right cannot be denied on the ground of financial constraints
or administrative inability or that the accused did not ask for it. The Supreme Court
emphasized that it is the duty of the presiding officer to inform the accused of such right.

In Nandini Sathpathy v. P.L. Dani, The court held that the accused must be allowed legal
representation during custodial interrogation, and the police must wait for a reasonable time
for the arrival of a lawyer. However, the court which took the right step did not take a long
stride in holding that the state must provide a lawyer if the accused is indigent. The
observation of the court could well be inducted in the administration. In the area of criminal
justice, the Criminal Procedure Code 1973 now provides for legal aid to the accused

PERSONAL HEARING

An adjudicating authority must observe the principles of natural justice and must give a
reasonable opportunity of being heard to the person against whom the action is sought to be
taken.

In India also, the same principle is accepted and oral hearing is not regard as a sine qua non
of natural justice. A person is not entitled to an oral hearing, unless such a right is conferred
by the statute.

In M.P. Industries Ltd v. Union of India,37 Subba Rao, observed: “It is no doubt a principle
of natural justice that a quasi-judicial tribunal cannot make any decision adverse to a party
without giving him an effective opportunity of meeting any relevant allegations against him
but the said opportunity need not necessarily be by personal hearing. It can be by written
representation. Whether the said opportunity should be by written representation or by
personal hearing depends upon the facts of each and ordinarily it is in the discretion of the
tribunal.

it is well-established that the principles of natural justice do not require personal hearing and
if all the relevant circumstances have been taken into account before taking the impugned
action, the said action cannot be set aside only on the ground that personal hearing was not
given.

36
(1981) 1 SCC 627
37
AIR 1966 SC 671

141
The principles of natural justice are flexible and whether they were observed in a given case
or not depends upon the facts and circumstances of each case. The test is that the
adjudicating authority must be impartial, ‘fair hearing’ must be given to the person
concerned, and that he should not be ‘hit below the belt.’

But at the same time, it must be remembered that a ‘hearing’ will normally be an oral
hearing. As a general rule, ‘an opportunity to present contentions orally, with whatever
advantages the method of presentation has, is one of the rudiments of the fair play required
when the property is being taken or destroyed. de Smith also says that “in the absence of
clear statutory guidance on the matter, one who is entitled to the protection of the Audi
alteram partem rule is now prima facie entitled to put his case orally

No evidence should be taken at the back of other party

That ex parte evidence taken in the absence of the other party violates the principles of fair
hearing was discussed by the court in Errington v. Ministry of Health 38 – whatever the
information is obtained by the administrative authority must be disclosed to the party and an
opportunity to rebut in must be provided.

In Hira Nath Mishra v. Rajendra Medical College 39 , In this case, 36 Girl students of a
Medical College pilot air report which is the principal regarding misbehavior of the boys in
the girl’s hostel. The inquiry committee appointed by the principle recorded the statements
of the girls, but in the absence of the appellants. That appellants were also identified by the
girls through photographs. The committee found the appearance guilty and consequently an
expulsion order was served on them. The order of explosion was challenged before the
Supreme Court and one of the grounds of challenge was that the evidence was taken behind
their backs. the court rejected the contention holding that the girls would not have ventured
to make the statements in the presence of the appellants except at a greater risk of retaliation
and harassment. in this case whatever evidence was collected behind the backs of the
appearance was brought to their notice and they were provided with an opportunity to rebut
the evidence. Every case has to be decided on its own merit.

38
(1935) 1 KB 249 (CA)

39
(1935) 1 KB 249 (CA)

142
Speaking Order- Reasoned Decisions

A ‘speaking order’ means an order speaking for itself. To put it simply, every order must
contain reasons in support of it. A reason is an essential requirement of the rule of law. It
provides a link between fact and indecision, guard against non-application of mind,
arbitrariness and maintain public confidence in judicial and administrative authorities.
Reasons also serve a wider principle that justice must not only be done; it must also appear
to be done.

Importance

Giving of reasons in support of an order is considered to be the third principle of natural

justice. According to this, a party has a right to know not only the result of the inquiry but
also the reasons in support of the decision.

Today, the old ‘police State’ has become a ‘welfare State.’ The governmental functions
have increased, administrative tribunals and other executive authorities have come to stay
and they are armed with wide discretionary powers and there are all possibilities of abuse of
power by them. To provide a safeguard against the arbitrary exercise of powers by these
authorities, the condition of recording reasons is imposeon them. It is true that even the
ordinary law courts do not always give reasons in support of the orders passed by them
when they dismiss appeals and revisions summarily. But regular courts of law and
administrative tribunals cannot be put at par.

In India in the absence of any particular statutory requirement, there is no general

requirement for administrative agencies to give reasons for their decisions. However, if the
statute under which the agency is functioning requires reason to decisions, codes consider it
mandatory for the administrative agency to give reasons, which should not be merely
rubberstamp reasons but a brief, clear statement, providing the link between the material on
which certain conclusions are based on the actual conclusion.
40
In M.J. Shivani v. State of Karnataka, the court reiterated That when the rules direct
recording of reasons it is as sine qua non, and a condition precedent for a valid order.
Appropriate brief reasons, though not like a judgment are necessary for a valid Order.
normally they must be communicated to the affected party so that he may have an
opportunity to have them tested in the appropriate forum an administrative order itself may

40
(1955) 6 SCC 289

143
contain reasons, or the file may disclose reasons to arrive at the decision showing
application of mind to the facts in issue.

Even when the statute does not lay down expressly the requirement of recording reasons, the
same can be inferred from the facts and circumstances of the case. Mere fact that the
proceedings were treated as confidential does not dispense with the requirement of
recording reasons.

If the order is subject to appeal or revision (including Special Leave Petition under Article
136 of the Constitution), the necessity of recording reasons is greater as without reasons the
appellate or revisional authority cannot exercise its power effectively inasmuch as it has no
material on which it may determine whether the facts were correctly ascertained, law was
properly applied and the decision was just and based on legal, relevant and existent grounds.
Failure to disclose reasons amounts to depriving the party of the right of appeal or revision

POST DECISIONAL HEARING

The idea of post decisional hearing has been developed to maintain a balance between
administrative efficiency and fairness to the individual. This organizing tool was developed
by the Supreme Court in Maneka Gandhi case41. In this case, the passport dated 1 June 1976
of the petitioner, a journalist, was impounded in the public interest by an order dated 2nd
July 1997, And the government having declined to furnish harder reasons for its decision.
She filed a petition before the Supreme Court under Article 32 challenging the validity of
the impoundment order.
The government also did not give her any pre decisional notice and hearing. One of the
contentions of the government, relevant for our purposes, was that the rule of Audi alteram
partem must be held to be excluded because it may have frustrated, purpose of impounding
the passport. Rejecting the contention, the court rightly held that though the impoundment
of the passport was an administrative action, yet the rule of Fair hearing was attracted by
necessary implication, and it would not be fair to exclude the application of this Cardinal
rule on the ground of administrative convenience.

However, the court did not outright crash the order and allowed the return of the passport
because of the special social political factors attending the case. On the contrary, the

41
(1978) 1 SCC 248

144
technique of post decisional hearing was developed in order to balance these factors against
the clear requirements of lock, justice and fairness. The code stressor that a fair opportunity
of being heard following immediately the order impounding the passport would satisfy the
mandate of natural justice.

The concept of post decisional hearing in situation where pre decisional hearing is required
either expressly or by necessary implication is itself based on wrong hypothesis that
administrative efficiency and fairness to the individual Are discrete values for the stop 1
cannot expect that a post decisional hearing would be anything more than a mere empty
formalistic ritual.post decisional hearing was developed in order to balance these factors
against the clear requirements of lock, justice and fairness. The code stressor that a fair
opportunity of being heard following immediately the order impounding the passport would
satisfy the mandate of natural justice. The concept of post decisional hearing in situation
where pre decisional hearing is required either expressly or by necessary implication is
itself based on wrong hypothesis that administrative efficiency and fairness to the individual
Are discrete values for the stop 1 cannot expect that a post decisional hearing would be
anything more than a mere empty formalistic ritual.

The same technique of validating word administrative decision by post decision hearing was
adopted in Swadeshi cotton Mills v. UOI,42The court validated the older of the government
for taking over the management of the company, which had been passing in violation of the
Audi alteram partem rule and which was found to have been attracted by necessary
implication, as the government had agreed to do a post decisional hearing.

Justifying the idea of post decisional hearing, professor de Smith writes:

Can the absence of a hearing before a decision is made be adequately compensated

for by a hearing ex post facto? A prior hearing may be better than a subsequent hearing, but
a subsequent hearing is better than no hearing at all and in some cases the courts have held
that statutory provisions for an administrative appeal or even full judicial review on merits is
sufficient to negative the existence of any implied duty to hear before the original decision
is made. The approach may be acceptable where the original decision does not cause serious
detriment to the person affected, or where there is also a paramount need for prompt action,
or where it is impracticable to effort and dissident hearings.

In substance, it is the necessity for speed which justifies post decisional hearing at a later

42
(1981) 1 SCC 664

145
stage. In emergent situations, the principles of natural justice are excluded and, therefore, if
the code comes to the conclusion that in a given situation these rules are applicable, there
seems to be no reason as to why their observance should not be insisted upon at the pre
decisional stage.

In the opinion of Supreme Court, the post decisional opportunity of hearing does not sub
serve the rules of natural justice. The authority who embarks upon a post decisional hearing
will naturally proceed with a closer mind and there is hardly any chance of getting a proper
consideration of the representation at such a post decisional opportunity.

EXCEPTIONS TO PRINCIPLES OF NATURAL JUSTICE

The word exception in the context of natural justice is really a misnomer, because in these
exclusionary cases, the rule of audi alteram partem is held in applicable not by way of an
exception to fair play in action, but because nothing unfair can be inferred by not affording
an opportunity to present or meet a case.43

Principles of natural justice or ultimately weighed in the balance of fairness and, hence, the
codes have been circumspect extending these principles to situations where it would cause
more injustice rather than justice.91 For example, a party would forfeit its right to hearing if
undue advantage obtained is protracting the proceedings somehow and nullifying the
objectives . Thus, where a teacher of the now they have Italia was dismissal on gross moral
turpitude without giving exhaustive hearing for central civil services (classification, control
and Appeal) Rules, the court held termination valid on the ground that fairness cannot be
made counterproductive.44

Application of the principles of natural justice can be excluded either expressly or by

necessary implication, subject to the provisions of Articles 14 and 21 of the Constitution.
Therefore, if the statute, expressly or by necessary implication, precludes the rules of natural
justice, it will not suffer in validation on the ground of arbitrariness, unless a person suffers
adverse civil consequences. In such situation, fair hearing will be read into the law.
Exceptions are as follows

43
Maneka Gandhi v. UOI
44
AvinashNagra v. Navodaya Vidyalaya Samithi (1997) 2 SCC 534

146
DOCTRINE OF NECCESITY

The doctrine of necessity is an exception to ‘Bias’. The law permits certain things to be
done as a matter of necessity which it would otherwise not countenance on the touchstone of
judicial propriety. The doctrine of necessity makes it imperative for the authority to decide
and considerations of judicial propriety yield. It can be invoked in cases of bias where there
is no authority to decide the issue.

If the doctrine of necessity is not allowed full play in certain unavoidable situations, it
would impede the course of justice itself and the defaulting party would benefit from it. If
the choice is between either to allow a biased person to act or to stifle the action altogether,
the choice must fall in favour of the former as it is the only way to promote decision-
making.

In Ashok Kumar Yadav vs. Haryana,45 the Court held that a member of the Public Service
Commission could not entirely disassociate himself from the process of selection just
because a few candidates were related to him. He should disassociate himself with the
selection of the persons who are related to him, but need not disassociate with the selection
of other candidates. Though his presence on the selection committee could create a
likelihood of bias in favour of his relations yet, since the Public Service Commission is a
constitutional authority, such a member cannot be excluded from its work and his presence
in the recruitment process is mandatorily required. The Court further held that where
substitution is possible, this doctrine would not apply.

DOCTRINE OF ABSOLUTE NECCESITY

The doctrine of ‘absolute necessity’ is also taken as an exception to ‘Bias’ where it is

absolutely necessary to decide a case of Bias and there is no other option left.

In Election Commission of India vs. Dr. SubramaniamSwamy,46 the SC was asked to decide
whether the CEC TN Seshan, who was allegedly biased in favour of Swamy, because of the
long friendship, could participate in the giving of opinion by the EC. The opinion was to be
given on the alleged disqualification of Jayalalitha, the then CM of Tamil Nadu under
Article 191 of the Constitution. Swamy had made a petition to the Governor alleging that
Jayalalithahad incurred a disqualification under Article 191 read with Sec 9 of the RPA,
1951, to get elected to the legislative assembly, as at the time of the election she was a party
to a contract with the Government. Under Art 192 of the Constitution, before giving any
45
AIR 1987 SC 454.
46
[1966] 4 SCC 104

147
decision on such question of disqualification, a Governor is required to obtain of the EC,
and has to act according to such opinion.

The Governor forwarded Swamy’s petition to the EC for its opinion. Jayalalitha moved the
HC of Madras under Art 226 of the Constitution, seeking a writ of prohibition enjoining
upon Seshan not to participate in giving opinion. The HC, through a single judge Bench,
held that Seshan shouldn’t give opinion in view of his prejudice against Jayalalitha. The
Single Judge also held that she had not incurred any disqualification. On appeal, the
Division Bench held that the preciding Bench had been wrong in deciding the question of
Jayalalitha’s disqualification, because that question could be decided by the EC alone. The
Division Bench, however agreed with the Single Judge Bench that Seshan suffered from
Bias, and therefore, should not give his opinion. The Division Bench observed that in view
of the appointment of additional two members on the EC, the EC could give opinion
through members other than the CEC.

EXCEPTION IN CASE OF STATUTE PROVISION

Natural justice is implied by the Courts when the parent statute under which an action is
being taken by the Administration is silent as to its application. Omission to mention the
right of hearing in the statutory provision does not ipso facto exclude a hearing to the
affected person.

In Charan Lal Sahu vs UOI47 (Bhopal Gas Disaster case) is a classical examples of the
application of this exception. In this case the constitutional validity of the Bhopal Gas
Disaster (Processing of Claims) Act, 1985, which had authorized the Central Government to
represent all the victims in matters of compensation award, had been challenged on the
ground that because the Central Government owned 22% share in the Union Carbide
Company and as such it was a joint tortfeasor and thus there was a conflict between the
interests of the government and the victims. The court negative the contention and observed
that even if the argument was correct the doctrine of necessity would be applicable to the
situation because if the government did not represent the whole class of gas victims no other
sovereign body could so represent and thus the principles of natural justice were no
attracted.

However, any statutory exclusion of procedural fairness will be construed strictly. Thus,
where a statutory provision did not expressly or by necessary implication exclude the right
47
[1990] 1 SCC 613 1480 (SC)

148
to legal professional’s privilege, the provision was interpreted not to do so. Subordinate
legislation purporting to exclude a hearing or to hold a hearing or conduct an inquiry is
conferred by a statute, a refusal to hold the inquiry may constitute a denial of natural justice
if fairness plainly demands that a hearing be held.

EXCEPTIONS IN CASE OF LEGISALTIVE ACTS

A ground on which hearing may be excluded is that the action of the Administrative in
question is legislative and not administrative in character. Usually, an order of general
nature, and not applying to one or a few specified persons, is regarded as legislative in
nature. Legislative action, plenary or subordinate, is not subject to the rules of natural justice
because these rules lay down a policy without reference to a particular individual. On the
same logic, principles of natural justice can also be excluded by a provision of the
Constitution also. The Constitution of India excludes the principles of natural justice in Art.
22, 31(A), (B), (C) and 311(2) as a matter of policy. Nevertheless, if the legislative
exclusion is arbitrary, unreasonable and unfair, courts may quash such a provision under
Art.14 and 21 of the Constitution.

EXCEPTION IN CASE OF CONFIDENTALITY CLAUSE

In Malak Singh v. State of Punjab and Haryana, 48 SC held that the maintenance of
Surveillance Register by the Police is confidential document neither the person whose name
is entered in the Register nor the any other member of the public can have excess to it.
Furthermore, the Court observed that observance of the principles of Natural justice in such
a situation may defeat the very purpose of surveillance and there is every possibility of the
ends of justice being defeated instead of being served.
In S.P. Gupta v. U.O.I, 49where the SC held that no opportunity of being heard can be given
to an additional judge of HC before his name is dropped from being confirmed it may be
pointed out that in a country like India surveillance may provide a very serious constraint
on the liberty of the people, therefore the maintenance of the surveillance Register cannot
be so utterly administrative and non-judicial that it is difficult to conceive the application of

48
1981] 1 SCC 420 760 (SC)
49
[1982] SC

149
the rules of natural justice.

EXCEPTION IN CASE OF EMERGENCY

In India, it has been generally acknowledged that in cases of extreme urgency, where
interest of the public would be jeopardizes by the delay or publicity involved in a hearing, a
hearing before condemnation would not be required by natural justice or in exceptional
cases of emergency where prompt action, preventive or remedial, is needed, the requirement
of notice and hearing may be obviated. Therefore, if the right to be heard will paralyze the
process, law will exclude it.

In Mohinder Singh Gill v. CEC,50 whether notice and right to be heard must been given or
not was been laid down before the SC. In Firozhpur Constituency Parliamentary Election
counting was been going on where in some segments counting were going on and in some it
was over. One candidate was having a very good lead but before the declaration of the
results, in a mob violence in some segments ballot papers and boxes were been destroyed.
The ECI acting under Article 324, 329 without giving any notice or hearing to the
candidates cancelled the Election and ordered for fresh Election. The SC rejected the claim
of notice and audi alteram partem and held that in case of emergency, Audi Alteram Partem
can be excluded.

In Swadeshi Cotton mills v. Union of India, the Court held that the word “immediate” in
Section 18AA of the Industries (Development and Regulation) Act cannot stand in the way
of the application of the rules of the Natural Justice. U/Sec 18AA of above said Act the
Central Government can take over an industry after investigation, but U/Sec 18AA(1) the
Govt. can take over without any notice and hearing on the ground that production has been
or is likely to be affected and hence immediate action is necessary the question was whether
Sec 18AA(1) excludes the principles of Natural Justice the Govt. took the plea that since
Section 18AA clause

EXCEPTION IN CASE OF IMPRACTICABILITY

Natural justice can be followed and applied when it is practicable to do so but in a situation
when it is impracticable to apply the principle of natural justice then it can be excluded.
In Bihar School Examination Board v. Subhash Chandra,51 the Board conducted final tenth
standard examination. At a particular centre, where there were more than thousand students,
50
[1978] 1 SCC 405 851
51
AIR 1970 SC 1269

150
it was alleged to have mass copying. Even in evaluation, it was prima-facie found that was
mass copying as most of the answers were same and they received same marks. For this
reason, the Board cancelled the exam without giving any opportunity of hearing and ordered
for fresh examination, whereby all students were directed to appear for the same. Many of
the students approached the Patna HC challenging it on the ground that before cancellation
of exam, no opportunity of hearing was been given to the students. The HC struck down the
decision of the Board in violation of Audi Alteram Partem. The Board unsatisfied with the
decision of the Court approached the SC. The SC rejected the HC judgment and held that in
this situation, conducting hearing is impossible as thousand notices have to be issued and
everyone must be given an opportunity of hearing, cross-examination, rebuttal, presenting
evidences etc. which is not practicable at all. So, the SC held that on the ground of
impracticability, hearing can be excluded.
EXCEPTION IN CASE OF PUBLIC INTEREST

In Balco Employees’ Union v. UOI52, the Supreme Court was of the view that in taking of a
policy decision in economic matters at length, the principles of natural justice have no role
to play. In this case, the employees had challenged the government’s policy decision
regarding disinvestment in public sector undertaking. The court held that unless the policy
decision to disinvest is capricious, arbitrary, illegal or uninformed and is not contrary to
law, the decision to disinvest cannot be challenged on the ground of violation of the
principles of natural justice.

EXCEPTION IN CASE OF ADMINISTRATIVE MATTERS

Where nature of authority is purely administrative no right of hearing can be claimed, where
a student of the university was removed from the rolls for unsatisfactory academic
performances without being given any per-decisional hearing. The Supreme Court in
Jawaharlal Nehru University v. B.S. Narwal held that the very nature of academic
adjudication appears to negative any right of an opportunity to be heard. Therefore if the
competent academic authorities examine and asses the work of a student over a period of
time and declare his work unsatisfactory, the rules of natural justice may be excluded.

In the same manner in Karnataka Public Service Commission v. B.M. Vijay Shanker 53when

52
(2002 2 SCC 333)]
53
1992 AIR 952, 1992 SCR (1)

151
the commission cancelled the examination of the candidate because, in violation of rules,
the candidate wrote his roll number on every page of the answer-sheet, the Supreme Court
held that the principles of natural justice were not attracted, the Court observed that the rule
of hearing be strictly construed in academic discipline and if this was ignored it would not
only be against the public interest but also erode the social sense of fairness. However, this
exclusion would not apply in case of disciplinary matter or where the academic body
performs non-academic functions granting sanction of prosecution is purely administrative
functions, therefore, principles of natural justice are not attracted. In the same manner
cancellation of bid for failure to execute lease deed and to deposit security amount, held,
would not attract principles of natural justice.

CONCLUSION

The exceptions to the principles of natural justice in UK and India mainly relates to
administrative proceedings. The Courts in both these countries especially in India created
various exceptions to the requirement of natural justice principles and procedures taking
into account various circumstances like time, place, the apprehended danger and so on
prevailing at the time of decision-making. It must be noted that all these exceptions are
circumstantial and not conclusive. They do not apply in the same manner to situations
which are not alike. They are not rigid but flexible. These rules can be adopted and
modified by statutes and statutory rules also by the Constitution of the Tribunal which has
to decide a particular matter and the rules by which such tribunal is governed.

Every action of the authorities to be regarded as an exception must be scrutinized by the

Courts depending upon the prevailing circumstances. The cases where natural justice
principles have been excluded by implication suggest that the Courts have accepted the
doctrine even though the legislature has not adopted express words to that effect but those
cases appear to depend so heavily on their particular circumstances that they do not yield a
clear general principle. There are arguable and also explicable instances where the courts
have concluded that natural justice was not necessary.

152
EFFECT OF NONCOMPLIANCE WITH PRINCIPLES OF NATURAL JUSTICE

A complicated and somewhat difficult question is: What is the effect of breach or
contravention of the principles of natural justice? Does it go to the root of the matter
rendering a decision void or merely voidable?

Courts are unanimous that a decision rendered in violation of the rule against bias is merely
voidable and not void. The aggrieved party may thus Waive his right to avoid the decision,
as where timely objection is not made even though there is full knowledge of the buyers and
the right to object to it. However, there is fundamental disagreement amongst courts and
jurists As to the effect of a breach of the rule of Fair hearing on any decision. prof.

H.W.R Wade Ease of the view that breaches of the rules of natural justice must have the
effect of producing void decisions. But D.M.Gordon Argues that procedural breaches can
never render a decision void as jurisdictional error. At first prof. De Smith Appears so how
agreed with him but later on he changed his stance.

A voidable order is an order which is legal and valid unless it is set aside by a competent
court at the instance of an aggrieved party. On the other hand, a void order is not an order in
the eye of law. It can be ignored, disregarded, disobeyed or impeached in any proceeding
before any court or tribunal. It is a stillborn order, nullity and void ab initio.

So far as India is concerned, it is fairly well settled and courts have consistently taken the
view that whenever there is violation of any rule of natural justice, the order is null and
void. Thus, where appointment of a government servant is cancelled without affording an
opportunity of hearing, or where an order retiring a civil servant on the ground of reaching

TEST
It would not be correct to say that for any and every violation of a facet of natural justice, an
order passed is always null and void. The validity of the order has to be tested on the
touchstone of prejudice. The ultimate test is always the same, viz. the test of prejudice or the
test of fair hearing.

One thing, however, must be noted. Even if the order passed by an authority or officer is
ultra vires, against the principles of natural justice and, therefore, null and void, it remains
operative unless and until it is declared to be so by a competent court. Consequent upon
such declaration, it automatically collapses and it need not be quashed and set aside. But in
absence of such a declaration, even ex facie invalid or void order remains in operation de

153
facto and it can effectively be resisted in law only by obtaining the decision of the
competent court.

In India, the supreme court in Nawab khan Abbaskhan v. State of Gujarat, categorically
54

held that an order which infringes a fundamental, passed in violation of the Audi alteram
partem rule, is a nullity. The appellant in this case had been prosecuted and convicted for
disobeying an externment order which was later held invalid for want of hearing. The
Supreme Court emphasized that an externment order passed in violation of the rules of
natural justice is of no effect, and its violation is no offence because such a determination is
a jurisdictional error going to the very roots of a determination.

In Swadeshi Cotton mills55, The operational principle laid down by the court is that an order
password in violation of the rules of natural justice is not such a nullity, non est which
cannot be reviewed by a post decisional hearing it is certainly contrary to the holding of the
court in Nawab khan.

GROUNDS ON WHICH THE JUDGEMENT RAISED BEFORE THE COURT

Powers conferred under a statute may be judicial, quasi-judicial or executive. A judicial

decision is made according to law. An administrative decision is made according to
administrative policy. A judge attempts to find what is the correct solution according to the
legal rules and principles. An administrator attempts to find what is the most expedient and
desirable solution in the public interest.' In bodies or officials exercising executive powers,
judicial or quasi-judicial power may be conferred. Very often the judicial power is
unmistakable. But it is very difficult to lay down when a power is regarded as executive and
when it is regarded as quasi-judicial. The subject is fraught with complications. The
practical consequences flowing from the distinction is that certiorari or prohibition may be
issued to quash or restrain an official or body acting in excess of jurisdiction when the
power is quasi-judicial.

Judicial and executive functions are basically the same in their character involving some
mental process. Both are overlapping. Courts have certain administrative functions and 'the
executive has certain judicial functions. The distinction is very subtle.

In Jay Engineering Works v. State of West Bengal," the Government directed that the police

54
(1974) 2 SCC 121
55
(1981) 1 SCC 664

154
officers should not interfere in the disputes between the employers and the employees in
industrial undertakings. It has the effect of directing the police not to exercise their powers
under the Criminal Procedure Code, involving Commission of cognizable offences. A
Bench of five Judges,95 of the Calcutta High Court unanimously quashed the order of the
Government and directed the Police to act according to the statutory powers. Thus, an order
purely executive was quashed.

The Supreme Court itself has said in A. K. Kraipak v. Union of India, that "the dividing line
between an Administrative power and quasi-judicial power is quite thin and it is being
gradually obliterated. For determining whether a power is an administrative power or quasi-
judicial power one has to look to the nature of the power conferred, the frame-work of the
law conferring that powers, the consequences ensuing the exercise of that power and the
manner in which that power is expected to be exercised. The Court further emphasized that
"the requirement of acting judicially in essence is nothing but a requirement of acting justly
and fairly and not arbitrarily or capriciously". The authorities exercising quasi-judicial
functions must record reasons in support of their orders.

A quasi-judicial decision involves certain procedural attributes like natural justice. In recent
years the concept of quasi-judicial power has been undergoing a radical change. What was
considered as administrative power some years back is now being considered as a quasi-
judicial power. The recent trend is in the direction of obliterating the distinction. It seems to
be the inevitable consequence because the distinction is unreal and does not stand the test of
a critical analysis. Allowing the time-worn distinction to remain is only useful for the
purpose of obtaining certiorari or prohibition against authorities exercising quasi-judicial
powers in arriving at decisions.

155
156
 Unit IV
ADMINISTRATIVE DISCRETION- GRANT AND EXERCISE OF

DISCRETION JUDICIAL REVIEW OF ADMINISTRATIVE

DISCRETION

CONTROL OF ADMINISTRATIVE

ACTION- JUDICIAL CONTROL

PUBLIC LAW AND PRIVATE LAW

REMEDIES- DISTINCTION

WRITS- THEORY, PRACTICE AND PROCEDURE- OUSTER CLAUSE

LIABILITIES OF THE STATE IN THE PROVINCE OF CONTRACT AND

TORT- CONSTITUTIONAL TORT

DOCTRINE OF PROMISSORY ESTOPPELS

DOCTRINE OF LEGITIMATE EXPECTATION

DOCTRINE OF PROPORTIONALITY

Introduction
With the abandonment of laissez faire and advent of the modern philosophy
of a “welfare” and “social service” state, the administrative organ, in practically
every democratic country, is performing more and more functions. The main tasks
of the administrative organ are no longer merely police or political; it performs vast
regulatory and managerial functions.

The administrative powers are of varied types. They range from such simple
matters as registration of births and deaths, to regulate of business activity,
acquiring property for a public purpose and detaining a person on the subjective
satisfaction of the executive. The administrative powers also include such important

157
powers as of investigation, seizing or destroying the property of an individual
without hearing in the interest of public health, safety and morality.

A significant phenomenon of the present-day administrative process is the

conferment of discretionary powers on administrative personnel to take decisions
from case to case. There is a tendency in all democratic countries that legislation,
conferring powers on the executive is usually drafted in broad and general terms; it
leaves large area of choice to the administrator to apply the law to actual, specific
and factual situations, that is, from case to case, and does not specify clearly the
conditions and circumstances subject to which, and the norms with reference to
which the executive must use the powers conferred on it.

Because of the complexity of socio-economic conditions which the

administration in modern times has to contend with, the range of ministerial
functions is very small and that of discretionary functions much larger. The modern
tendency is to leave a large amount of discretion with various authorities.

Discretion is the all-pervading phenomenon of modern age. Discretion is

conferred in the area of rule-making or delegated legislation, e.g. when the statutory
formula says that the government may make rules which it thinks expedient to carry
out the purposes of the Act, in effect, abroad discretion and choice are being
conferred on the government to make rules. The legislature hardly gives any
guidance as to what rules are to be made. Similarly, discretion is conferred on
adjudicatory, and administrative authorities on, a liberal basis, that is, the power is
given to apply a vague statutory standard from case to case.

But providing such vast powers may also be the cause for abuse. The
broader the discretion, the greater the chance of its abuse. In the words of Justice
Douglas of the U.S.
Supreme Court. “Where discretion is absolute, man has always suffered... Absolute
discretion... is more destructive of freedom than any of man’s other inventions”.

It thus becomes necessary to devise ways and means to minimize the danger
of absolute discretion, so that injustice is not done to any single individual. It is not
possible for this purpose to depend merely on the good sense of administration
itself to use its power properly, for broad power always breeds the danger that
wielder will get power drink. Courts have to play a major role in the process of

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controlling the functioning of the administration. In this connection the
fundamental rights guaranteed by the Indian Constitution play a significant role.
The courts control the exercise of discretion by the administration and for this
purpose have evolved several norms.

Meaning of Administrative Discretion

“Discretion is a science or understanding to discern between falsity and truth,

between right and wrong, between shadows and substance, between equity and
colourable glosses and pretences, and not to do according to their wills and private
affections.”

-Lord Edward Coke, Rooke's Case (1598), 5 Rep. 99 b.

Discretion in a lay person’s language can mean choosing from amongst the
various available alternatives without reference to any predetermined criterion, no
matter how fanciful that choice may be. A person writing his will has such
discretion to dispose of his property in any manner, no matter how arbitrary or
fanciful it may be. But the term “discretion” when qualified by the word
"administrative” has somewhat different overtones. ‘Discretion’ in this sense means
choosing from amongst the various available alternatives, but with reference to the
rules of reason and justice and not according to personal whims. Such exercise is
not to be arbitrary, vague and fanciful but legal and regular.

Lords Halsbury in Sharp v. Wakefield56 observed: “Discretion means when

it is said that something is to be done within the discretion of the authorities that
something is to be done according to the rules of reason and justice, not according
to private opinion ...according to law and not humour. It is to be, not arbitrary,
vague and fanciful, but legal and regular. And it must be exercised within the limit,
to which an honest man competent to the discharge of his office ought to confine
himself”.

56
1891 AC 173

159
 According to Prof. Freund- “When we speak of administrative discretion,
we mean that a determination may be reached, in part at least, upon the basis of
considerations not entirely susceptible of proof or disproof… [it involves] matter of
degree or an appeal to judgment… discretion includes the case in which the
ascertainment of fact is legitimately left to administrative determination”.

Conferring discretion

Rarely does the legislature enact a comprehensive legislation complete in all

details. More often the legislation is sketchy or skeleton, leaving many gaps and
conferring powers on the administration to act in a way it deems "necessary" or
“reasonable" or if it “is satisfied” or “is of opinion”. Rarely does the legislature
clearly enunciate a policy or a principle subject to which the executive may have to
exercise its discretionary powers. Quite often, the legislature bestows more or less
an unqualified or uncontrolled discretion on the executive. Administrative
discretion may be denoted by such words or phrases as “public interest”, “public
purpose”, “prejudicial to public safety or security”, “satisfaction," “belief,
“efficient”, “reasonable” etc.

Thus, there is no set pattern of conferring discretion on an administrative

officer. According to Freund- “A statute confers discretion when it refers an official
for the use of his power to beliefs, expectations or tendencies instead of facts, or to
such terms as ‘adequate’, ‘advisable,’ ‘appropriate’, ‘beneficial’, ‘competent’,
‘conversant’, 'detrimental', ‘expedient’, ‘equitable’, ‘fair’, ‘fit’, ‘necessary’,
‘practicable’, ‘proper’, ‘reasonable’, ‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’,
or their opposite. These lack the degree of certainty... They involve matter of
degree or an appeal to judgment. The discretion enlarges as the element of -future
probability preponderates over that of present conditions; it contracts where in
certain types of case quality trends to became standardized, as in matters of safety;
on the other hand, certain applications of the concepts of immorality, fraud,
restraint of trade, discrimination or monopoly are so controversial as to operate
practically like matter of discretion”.

160
Reasons for conferring discretion

Because of the complexity of socio-economic conditions which the

administration in modern times has to contend with, it is realised that a government
having only ministerial duties with no discretionary functions will be extremely
rigid and unworkable and that, too some extent, officials must be allowed a choice
as to when, how, and whether they will act. The reason for this attitude is that, more
often than not, the administration is required to handle intricate problems which
involve investigation of facts, making of choices and exercise of discretion before
deciding upon what action to take. Thus, the modern tendency is to leave a large
amount of discretion with various authorities. Statute book is now full of provisions
giving discretion of one kind or the other to the government or officials for various
purposes. The need for ‘discretion’ arises because of the necessity to individualize
the exercise of power by the administration, i.e. the administration has to apply a
vague or indefinite statutory provision from case to case.

There are following good reasons for conferring discretion on administrative

authorities:

(a) The present-day problems which the administration is called upon to deal with
are of complex and varying nature and it is difficult to comprehend them all within
the scope of general rules;

(b) Most of the problems are new, practically of the first impression. Lack of any
previous experience to deal with them does not warrant the adoption of general
rules’

(c) It is not always possible to foresee every problem but when a problem arises it
must, in any case, be solved by the administration in spite of the absence of specific
rules applicable to the situation’,

(d) Circumstances differ from case to case so that applying one rule mechanically
to all cases may itself result in injustice.

161
Disadvantages in conferring discretion

From the point of view of the individual, there are several disadvantages in
the administration following the case to case approach as compared to with the
adoption of a general rule applicable to all similar cases.

First, whereas case to case decisions operate on the past facts, a general rule
usually avoids retroactivity and operates in future so that one has prior notice of the
rules and thus may regulate his conduct accordingly. In case to case approach, the
individual may be caught by surprise and may not be able to adjust his affairs in the
absence of his ability to foresee future administrative action.

Second, the case to case approach involves the danger of discrimination

amongst various individuals; there arises a possibility of not getting like treatment
under like circumstances.

Third, the process is time consuming and involves decision in a multiplicity

of cases. Also, there is a danger of abuse of discretion by administrative officials.

These can be countered in the following manner:

1. The law conferring discretion may itself seek to lay down the elements and
standards which the authority has to apply in exercising its discretion and
selecting a course of action. This means that the degree of discretion should
be restricted by law itself as far as possible, or, in other words discretion
should be properly “confined and structured”.
2. If a statute leaves a large amount of discretion in the hands of
administration, the administration itself lay down criteria with respect to
which the discretion is to be exercised. It would help in predicting
administrative decision in individual cases, thus, making individual’s rights
somewhat certain and reducing chances of abuse of administrative
discretion. It would also help in uniform application of the law in a large
number of cases which may have to be handled, especially when a number
of parallel and co-equal administrative authorities have to cope with cases
arising under a particular scheme.
3. To some extent administrative discretions and norms of practice can be

162
 used, instead of the rules, for the purpose of achieving uniformity in
discretionary decisions, but these should be resorted to only when the
scheme is too much in an experimental stage and constant adjustment may
have to be made for some time to come otherwise rules are preferable to
directions as they can be enforced judicially.

But it needs to be emphasized that while laying down standards make the
discretion somewhat less than absolute, no amount of rules or directions can really
eliminate the need for discretion because administration functions in a very broad
area and individual cases and situations are bound to arise which may fall outside
the guiding norms and the administration will have to take some decision therein.
Not all acts of the administration can be bound by fixed rules. Many a time, it may
not be possible to prescribe it intelligible standards for the administration to follow.
All these considerations make it inevitable that discretion be vested in the
administration to take care of individual cases. But it also brings in the question of
judicial and other control over discretionary powers.
No Unfettered discretion

It is equally true that absolute discretion is a ruthless master. It is more

destructive of freedom than any of main’s other inventions. Therefore, there has
been a constant conflict between the claims of the administration to an absolute
discretion and the t claims of subjects to a reasonable exercise of it.

Discretionary power by itself is not pure evil but gives much room for
misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the
power itself. Thus, today question is not whether discretionary powers to
administrative authorities is desirable or not but what controls and safeguards can
be introduced so that unfettered or unqualified discretion could not be conferred and
discretionary powers could not be misused by government officials. It thus,
becomes necessary to devise ways and means to minimise the danger of absolute
discretion. To achieve such an objective, a multi-pronged strategy has to be
adopted. Courts have to play a major role in this process.

While the notion of “unfettered discretion" is acceptable to the English Courts

due to the operation of the doctrine of sovereignty of Parliament, it would be

163
inconsistent with the constitutional framework of judicial control in India. The
Indian Constitution guarantees certain Fundamental Rights to the people which
constitute a limitation on the legislative and executive powers of the government
and consequently, these rights provide an additional dimension of control over
administrative discretion. The courts in India, in addition to controlling the exercise
of administrative discretion on the same ground as the courts in England, also use
Fundamental Rights to control discretionary powers of administrative authorities in
two ways;

(i) The courts may declare a statute unconstitutional if it seeks to confer too
large a discretion on the administration. Fundamental Rights in India
thus afford a basis to the courts to control the bestowal of discretion to
some extent, by testing the validity of the law in question on the
touchstone of Fundamental Rights.
(ii) The courts may control the actual exercise of discretion under a statute
by invoking certain fundamental Rights, especially Article 14.

Article 14 of the Constitution and Administrative Discretion

One of the Constitutional checks against unfettered or uncontrolled

discretion in Indian law is article 14 of the Constitution which provides for the
principles of ‘equality before the law’
and ‘the equal protection of laws’. This constitutional provision condemns
discrimination; it forbids class legislation, but permits classification founded on
intelligible differential and having a rational relationship with the object sought to
be achieved by the Act in question. Article 14 is buttressed by Article 15 expressly
prohibiting discrimination on grounds of religion, race, caste, sex or place of birth,
Article 16 states positively that there shall be equality of opportunity in matters of
public employment. ‘Unfettered discretion’ is liable to be used in a discriminatory
manner and this is offensive to Article 14.

The general principle is that conferment of an arbitrary, sweeping,

uncontrolled or unfettered discretion on an administrative authority violates Article
14 as it creates the danger of discrimination among those similarly situated which is
subversive of the equality doctrine enshrined in Article 14. Mr. Justice Fazl Ali said

164
in State of West Bengal v. Anwar Ali 57 “An Act which gives uncontrolled authority
to discriminate cannot but be hit by Article 14”. Similarly, in Satwant Singh v.
Assistant Passport officer,98 where refusal of passport was hold violative of
Article 14, the issue of passports being governed entirely by discretion, the
Supreme Court observed :

“in the case of unchanneled arbitrary discretion, discrimination is writ large on the
face of it. Such a discretion patently violates the doctrine of equality, for the
difference in the treatment of persons sets solely on the arbitrary selection of the
executive”

In State of West Bengal v. Anwar Ali, in order to speed the trial for certain
offences, Section 5(1) of the West Bengal Special Courts Act, 1950 conferred
discretion on the State Govt, to refer any offence for trial by the special court.
Since, the procedure before the special court was stringent in comparison with that
for normal trials, the respondents asserted its unconstitutionality on the ground that
it violates the equality clause in Article 14. The court held the law invalid on the
ground that the use of vague expressions like “speedier trial", confers a wide
discretion on the Government and can be a basis of unreasonable classification. The
Act was held violative of Article 14 because it had empowered the government to
select any case or a class of cases or offences to be tried by the special courts. This
unfettered discretion is likely to be branded discriminatory and therefore, contrary
to Article 14.
In S. Kandaswamy Chettiar v. State of Tamil Nadu58 the Maharashtra vacant Lands
(Prohibition of unauthorized occupation and Summary Eviction) Act, 1955, which
was passed for prohibiting unauthorized occupation of vacant lands and for
providing summary eviction of unauthorized occupants, conferred upon the
competent authority the discretion to declare a land as vacant land without laying
down any policy as a guidance for the exercise of such discretion. The Act was

therefore held to be violative of Article 14. Discretion was conferred on the

State Government by the Tamil Nadu Building Lease and Rent Control Act 1960 to

57
AIR 1952 SC 75
58
AIR 1967 SC 1836.

165
exempt buildings from the Act. This provision was upheld in Kesoram& Co. v.
Union of India.

Similarly, in State of Kerala v. M/s Travencore Chemicals Manufacturing

59
Co., Section 59A of Kerala General sales Tax Act, 1963 conferring wide and
unbridled power was held to be violative of Article 14. It is a well-established
principle of Indian administrative Law that too broad, uncontrolled discretionary
power ought not to be conferred on administrative authorities, for uncontrolled or
unguided power falls foul of Article 14. This principle finds reiteration in several
cases.
In Sheo Nandan Paswan v. State of Bihar60, Bhagwati C.J. observed :"It is
significant to note that the entire development of administrative law is characterized
by a consistent series of decisions controlling and structuring the discretion
conferred on the state and its officers. The law always frowns on unanalyzed and
unfettered discretion conferred on any instrumentality of the state and it is the glory
of administrative law that such discretion has been through judicial decisions
structured and regulated.”

The preceding discussion shows that the court would enquire whether the
statute contains the policy or principles for guiding the exercise of discretion by the
executive in the matter of classification and if it does not the statute is liable to be
invalidated as having conferred “unfettered” discretion to discriminate between
persons or things similarly situated.

So long as the policy itself is not discriminatory36 legislation would be

upheld if its purpose or policy to guide the exercise of discretion is manifest. On
that basis Preventive Detention Act, Minimum wages Act, Industrial Dispute Act,
Suppression of Immoral Traffic in women and Girls Act etc. have been upheld.
However, even if the legislation is valid an administrative action purportedly
authorized by the legislation could be discriminatory and

59
AIR 1999 SC 230.
60
AIR 1987 SC 877

166
invalid. Though, the principle is clear and well established that unguided or
arbitrary power cannot be conferred on the administration, yet its application by the
courts to various factual situations faces difficulties.

In Manohar Lal v. State of Maharashtra, 61 Section 187. A of the Sea

Customs Act gave wide discretionary power to the authorities to either refer a case
of smuggled goods to a magistrate or to look into the matter themselves. The court
upheld the validity of the statute on ground that as this discretion is to be exercised
by senior officers that will stand as a guarantee against its misuse.

In Summan Gupta v. State of J & K (2000) with a view to encourage

national integration certain state governments agreed as a matter of policy to
reserve certain seats in medical colleges for outside candidates nominated by the
respective state government on a reciprocal basis. The Supreme Court struck down
the vesting of power of nomination in the state governments as the nomination was
left to their unlimited discretion and uncontrolled choice. In Monarch
Infrastructures v. Commr. Ulhasnagar Municipal Corporation, the Municipal
Corporation had invited tenders for appointment of agents for the collection of
Octroi. However, one of the eligibility condition was deleted after the expiry of the
time for submission of tenders but before opening thereof.; Thereafter, tender was
awarded to one who did not fulfil the deleted condition. The Supreme Court held
award of tender arbitrary and discriminatory.

However, if a statute confers wide powers but contains procedural

safeguards, then it can be upheld as valid. Thus, in Tika Ramji v. State of U.P.
(1956) Section 15 of the U.P, sugarcane Act, 1953 gave to the cane commissioner,
after consulting the factory and cane grower’s co- operative society, power to
reserve any area and assign any area for the purpose of supply of cane to a factory.
An appeal against such an order lay to the government. The power given to the
commissioner was held not bad under Article 14 as it was well defined and
contained safeguards against its exercise in a discriminatory manner. Organo
Chemicals Industries v. Union of Indi is an important case on this area. Section 14-

61
AIR 1971 SC 1511.

167
B of the1 employees ‘Provident Funds Act’, 1952 provides that where an employer
makes default in the payment of any contribution to the fund, the Central Provident
Fund Commissioner may recover from the employer such damages, not exceeding
the amount of arrears, as he may think fit to impose. Before imposing damages, the
employer is to be given a reasonable opportunity of being heard. The broad power
given to thecommissioner was upheld by the Supreme Court mainly because the
law in question was social in nature and beneficial to the labour. However, the court
adopted the following formal arguments to uphold the commissioner’s vast power
to impose damages.
The power is to be exercised according to natural justice and, as such, he
has to make a speaking order; such an order is subject to Art. 226, so that
perversity, illiteracy, extraneous influence, mala fides and blatant infirmities
straight away get caught and correct”. In, awarding damages he usually takes, into
consideration, as he has done here, various factors viz. the number of defaults, the
period of delay, the frequency of defaults and the amounts involved.” Again in
Gopikishan v. Assistant Collector of Customs,103 the power of assistant Collector of
Customs to order search of the premises of a person if had reason to believe that the
person had in his possession goods liable to be confiscated was upheld as he was
required to send forthwith a copy of any record made by him to the collector, and
he could be prosecuted if he took action without “having reason to believe”

The Supreme Court may read the procedural requirement of hearing into a
statute to save it from unconstitutionality under Article 14. Thus, in State of Mysore
v. Bhat, where a law authorized the competent authority to declare an area a slum
area, to declare houses unfit for human habitation and declare a slum area as a
clearance area the court read natural justice into the law to uphold it under Article
14. In Maneka Gandhi v. Union of India, Section 10(3) of the passport Act, 1967
empowered the Central Government to impound a passport of a person in public
interest. There was no appeal against the order of the government and the words “in
the interests of the general public" were appeared to be vague and undefined. But
the court upheld the provision by reading the requirement of natural justice and
because the words in question could not be characterized as vague and undefined as
these very words are to be found in Article 19(5). These words provide sufficient
guidelines to the government and its power cannot be regarded as unguided and

168
unfettered, the reasons for impounding the passport are to be recorded in writing
and copy thereof is to be given to the affected person save in certain exceptional
circumstances; the power is vested in a high authority, and according to the court
when power is vested in a high authority like the Central Government, abuse of
power cannot be legally assumed.”

Although Article 14 has established itself as the constitutional basis for

demanding judicial review in a way that is familiar to American lawyers i.e. that
discretion be structured by rules standards and policies, the degree of judicial
review exercised on this basis has swung between two extremes of a pendulum. In
some cases the courts have rejected the standards provided by thestatute as “vague
and uncertain” and condemned the enabling Act as having conferred unguided
discretion while in other cases they have handed the executive a free hand by
saying that a discretion vested in a high ranking officials is presumed to be
exercised bona fide. Sometime they have accepted even a vague policy as is
sufficient for the purpose when the same has been given in the preamble of the
statute concerned or in general objective of the statute.

Thus, in State of W.B. v. Anwar Ali, the West Bengal Special Courts Act,
1950 which authorised the state government to direct a special court to try “any
offence or cause” under procedure substantially different from the ordinary criminal
procedure to determent of the accused declared in its preamble that the object of the
Act was” to provide for the speedier trial of certain offences”. It was held that the
necessity for a “speedier trial” was too vague and uncertain to form a rational basis
of classification. By contrast speedier trial related to the object of the statue such as
“public safety" and ‘maintenance of public order in a dangerously disturbed area’
has been accepted a sufficiently certain.

In re Kerala Education Bill case, the Kerala Education Bill gave broad
powers of control to the Kerala Government over private schools in the state, as for
example, power to recognise newly established schools, power to take over any
category of schools in any specified area through a notification. These provisions
were challenged as being discriminatory on the ground that they were capable of
being exercised “with an evil eye and unequal hand". The Supreme Court held that

169
the clauses of the bill had to be interpreted and read in the light of the general policy
laid down in the preamble namely to provide for better development of education in
the State. Article 14 has thus proved to be a valuable tool in restraining what has
been termed in English law “unfettered discretion”. Thus, the courts have
demanded that discretion must not be arbitrary. Absence, of standards, policies and
principles to guide the exercise of “absolute discretion” is liable to render the
resultant administrative action open to challenge.

No Review of the merits of exercise of Discretion

A.K Gopalan v. State of Madras 1950 SCR 88

S.2 Preventive Detention Act was in question– make order if it is necessary to do so

in order to prevent him from acting prejudicially to the interest of the nation.

Held: no court can sit in place of detaining authority and can decide whether or not
it would have come to the same decision as the authority. Authority’s satisfaction
could not be substituted for court’s satisfaction. Court cannot question the grounds
of subjective satisfaction.

In Arora v. State of UP, Arora’s land was acquired u/LAA for construction
of a factory for manufacturing textile machinery parts. Arora challenges – he
himself wanted to erect a factory and land intended to be used for one public
purpose cannot be acquired for another public purpose. It was held: requirement of
the ‘public purpose’ is satisfied and it is for the Govt to decide whether or not to
acquire.

C.P. Sarathy vs State Of Madras And Ors

S. 10(1) Industrial Disputes Act was in question – Govt can refer an ID for
adjudication by LC if it is of the opinion that ID existed or apprehended

Held: making reference is administrative but factual existence and expediency of

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making reference is discretionary u/s.12 if Govt declines to make reference it has to
quote reasons but propriety, correctness, adequacy or satisfactory character of
reasons cannot be questioned.

Grounds for Judicial Review of Administrative Discretion

The main grounds for reviewing the administrative discretion, may be classified as
under:

(A) Ultra-Vires;

(B) Abuse of Discretionary Powers:

(i) Irrelevant consideration

(ii) Improper purpose

(iii) Errors of law

(iv) Unauthorised delegation

(v) Fettering of discretion
(C) Proportionality
(D) Unreasonable exercise of discretionary power

(E) Irrationality

(F) Procedural Impropriety

(G) Jurisdictional error

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(H) Acting under dictation

(I) Non-application of mind

(J) Malice

(K) Colourable exercise of powers

A. Ultra-Vires

The doctrine of ultra-vires states that a person or authority acting under

statutory power can do only those things which are statutorily authorised. In case of
failure to do so, the doctrine permits the courts to strike down the decision made by
the bodies exercising the public functions. Doctrine denotes that an authority can
only do things permitted by the statute to be done and things which are not
expressly conferred by the stature are forbidden to be done.

In the light of the spirit of the ultra-vires, the courts have been empowered to
scrutinize and find out whether action taken by the authority was within the
jurisdiction or it has travelled beyond the scope of its authority. It is an important
feature of administrative law jurisprudence. The essence of this doctrine is that a
person or a body acting under a statutory power or authority can be allowed to do
things which the statute permits to him to do and anything done beyond the power
conferred in this behalf would be without jurisdiction and consequently the decision
would be ultra-vires.

The object of the doctrine of ultra-vires is the protection of the people against
the administrative authorities whenever they go against the spirit of the statute and
exercise the powers conferred on them contrary to the law contained in the statute.

Lord Salbome opines that the doctrine of ultra-vires ought to be reasonably,

and no unreasonably understood and applied, and that whatever may fairly be

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regarded as incidental to, or consequential upon, those things which the legislature
has authorised, ought not (unless expressly prohibited) to be held, by judicial
construction, to be ultra-vires.

It is also important to make a mention here that the notion of implied

power has been permitted by the courts to free the administration from the shackles
of an overtly strict ultra-vires doctrine.

The doctrine of ultra-vires can be invoked on the ground of non-compliance

of the mandatory procedure provided under the Act. However, directory procedure
may be considered as an exception to the doctrine of ultra-vires. Wanchoo J., in
Raja Buland Sugar Co. v. The Municipal Board, Rampur,107 observed:

“The question whether a particular provision of a statute which on the face

of it appears mandatory - in as much as it used the word 'shall' as in the present case
- or merely directory cannot be resolved by laying down any general rules and
depends upon the facts of each case and for that purpose the object of the statute in
making the provision is the determining factor. The purpose for which the provision
has been made and its nature, the intention of the legislature in making the
provision, the serious general inconvenience or injustice to person resulting from
whether the provision is read one way or the other, the relation of the particular
provision to other provision dealing with the same object and other consideration
which may arise on the facts of a particular case, including the language of the
provision, have all to be taken into account in arriving at the conclusion whether a
particular provision is mandatory or directory.”

The principle of ultra-vires can also be invoked if the administrative

authorities do not follow the procedure laid down in the Act. If the procedure is
violated, rules may be declared in valid. In determining the validity of the rules on
this ground, the courts look into the spirit, rather than the letter of the law. The
Supreme Court has ruled in Khoday Distillaries Ltd. v. State of Karnataka, that the
act of the administrative authority can be struck down if it is manifestly
unreasonable and arbitrary. The test of reasonableness plays a significant part in the
governance of the country. It can always be pointed whether the authority has a

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reasonable ground exercising judgement.

It may be mentioned here that the principle of ultra-virus requires statutory

powers to be exercised in good faith and on correct ground. The presumption in that
the legislative authority cannot have intended to authorise unreasonable action which
is therefore, ultra-vires and void. The court is concerned only in the acts of legal
powers. Acts, if valid themselves, produce legal consequence. Doctrine of ultra-vires
is comprehensive and can cover virtually all situations where statutory power is
exercised contrary to some legal principle where a public authority is held to have
acted for improper motives or irrelevant considerations, its actions are ultra-vires and
void.

B. Abuse of Power

It has been seen that administrative bodies do not exercise their discretionary
power for the purpose intended to by the legislature. It may also happen that the
statute under which the powers are conferred on the administrative authorities may
not be an authorised delegation. It is also generally found that the powers are
exercised on irrelevant consideration or sometime there appear some errors of law
in the discharge of its function. All these factors amount to the abuse of
discretionary powers and become ground for judicial review.

(i) Irrelevant Consideration

There is no denying the fact that administrative decisions involve an element of

discretion which is supposed to be exercised on relevant and not on irrelevant or
extraneous considerations. It implies that the power conferred on administrative
authority by a statute on the consideration relevant to the purpose for which it is
conferred. If the statute mentions no such consideration, then the power is to be
exercised on consideration relevant to the purpose for which it is conferred on the
authority concerned. Therefore, if the authority concerned pays attention to, or
takes into account wholly irrelevant or extraneous circumstances, events or matters,
then the administrative action is ultra-vires and bound to be quashed.

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 Undoubtedly the grounds of irrelevant consideration give an additional
dimension to judicial review. If the act itself spells out the relevant criteria that has
to be taken into consideration in exercising the given power, then the task of the
court becomes easy, as what they have to see is whether a consideration is not
mentioned in the Act, has affected the exercise of discretion by the authority
concerned. However, the courts do not usually perform the task of judicial review
mechanically. Even when a statute does not fully spell out the relevant criteria or
consideration, or may appear to confer power in almost unlimited terms.

The court may by looking into the purpose and provisions of the Act, assess
whether extraneous or irrelevant consideration have been applied by the
administration. It is interesting to note that the ground of irrelevant consideration
may be taken up in case of prerogative power. It is now judicially recognised that
the prerogative powers are capable of abuse as are the other powers. So, there are
cases where prerogatives have many times been restricted by the judicial decision.
Lord Green M. R. in a landmark case Associated Provincial Picture Homes Ltd. v.
Wednesbury Corp.,109 ruled that an authority exercising discretion must adhere to
some principles: which include : (a) take all relevant factors into account; (b)
exclude all irrelevant factors from its consideration; (c) reach the decision which is
neither perverse nor irrational.

It is also evident from the scrutiny of cases that the judiciary has ruled that
discretionary powers must be exercised for proper purposes given in the conferring
statute. The courts have a duty to determine the cases within their jurisdiction and
properly brought before them and that administrative bodies, in general, have a
duty to exercise their statutory discretion one way or the other when circumstances
for the exercise of those discretions arise. The statutory body must be guided by
relevant considerations.

The judicial trend discloses that every action of the administrative authority
becomes invalid if it, in exercise of its discretionary powers, ignore the relevant
consideration. The courts have ruled that an authority must take into account the
consideration which a statute prescribes expressly or impliedly. In case the statute
does not prescribe any considerations but confers powers in a general way, the

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court may still apply some relevant consideration for the exercise of the power and
quash an order because the concerned authority did not take these into account.

Supreme Court of India in a landmark case of Indian Railway Construction Co.

Ltd. v. Ajay Kumar. has held that the authority in which the discretion is vested can
be compelled to exercise that discretion but not exercise it in any particular manner,
in general, a discretion must be exercised by the authority to which it is committed.
The authority must genuinely address itself to the matter before it. It must not act
under the dictate of other body or disable itself from exercising a discretion in each
individual cases. It must not do what it has been forbidden to do, nor must it do
what it has not been authorised to do. It must act in good faith, must have regard to
all relevant consideration and must not be influenced by irrelevant considerations,
must not seek to promote purposes alien to the letter or to the spirit of legislation
that gives it power to act, and must not act arbitrarily or capriciously. The courts
have ruled that discretion may be improperly fettered because irrelevant
considerations have been taken into account.

(ii) Improper Purpose

If the statutory authority exercises discretion for a different purpose the actions
taken may be quashed on the ground to have exercised that power for improper
purpose. It may be specifically submitted here that there is a distinction between
improper purpose and mala-fide exercise of power. The distinction is that the mala-
fide purpose may include ill-will, malice or oblique motive while these may be
absent in the former one.

Warrington, L.J., quoted in Pratap Singh v. State of Pujab "It may be also possible
to prove that an act of public body, though performed in good faith and without the
taint of corruption, was so clearly founded an alien and irrelevant ground as to be
outside the authority conferred upon the body and therefore inoperative.

It is implied that the legislature confers the discretion upon the

administrative authority with the intention that it should be used to promote the
policy and the objects of the Act, the policy and objects of Act must be determined

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by taking into consideration, the provisions of the Act as a whole. It is not possible
to draw hard and fast line, but if the administrative authority, by reason of its
having misconstrued the Act or for any other reason so used its discretion as to
thwart or run counter to the policy and objects of the Act, the court would certainly
provide protection to the persons aggrieved.

It would be a case of fraud on power, though no corrupt motive or bargain is

imputed if it could be shown that authority exercising a power has taken into
account, it may even be bonafide and with the best of intention as a relevant factor.
Something it could not properly take into account, in deciding whether or not
exercise the power or the matter or extent to which it should be exercised, the
exercise of power would be bad. The Supreme Court has observed:112 "Misuse of
power or misapplication of power are terms correctly employed to describe the use
of power in this illegal fashion. It was not necessary for the respondent to go so far
as to establish that such misuse took place with the deliberate object of benefiting
others at the expense of respondents.”

The judiciary has made it abundantly clear in many cases that every
discretionary power vested in the executive should be exercised in a just,
reasonable and fair manner. In exercising that power the authority must bring to
bear an unbiased mind, considering impartially the objections raised by the
aggrieved party and decide the matter consistent with principles of natural justice.
Authority cannot permit its decisions to be influenced by others as this would
amount to abdication and surrender of its discretion. It would then not be the
authority's discretion that is exercised but some else.

If an authority hands over its discretion to another body, it acts ultra-vires and
would plainly be contrary to the nature of the powers conferred upon the authority.
The Apex Court in Suman Gupta v. State of Jammu and Kashmir, has held that
exercise of all administrative powers must be structured within a system of controls
informed by both relevance and reason in relation to the object which it seeks to
serve and reason in regard to the manner in which it attempts to do so. Court taking
serious note of the rights of the individuals has ruled that it is improper and
undesirable to expose the precious rights like right to life, liberty and property to

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the vagaries of the individual’s whims and fancies. The presumption that those who
occupy high posts have a high sense of responsibility is neither legal nor rational.
Absence of guidelines cannot be defended on the ground that discretion is vested in
high authority.

(iii) Errors of Law

The court may review an administrative decision where there has been an error of
law on the face of the record or where such errors are obvious. It is imperative to
submit here that error must not necessarily be a flagrant one, or relate to a simple or
established principle of law, but that the error must be readily ascertainable by the
supervising court and not one that can be ascertainable by supervising court and not
one that can be ascertained by a detailed examination of all the evidence that was
before the deciding agency.

Lord Denning in R. V. Northumberland Compensation Appeal Tribunal,

observed:“Judiciary has an inherent jurisdiction to control all inferior tribunals, not
in an appellate capacity but in a supervisory capacity. This control extends not only
to seeing that the inferior tribunals keep within their jurisdiction but also to seeing
that they observe the law. The control is exercised by means of power to quash
determination by the tribunal which, on the fact of it, offends against the law. The
court does not substitute its own views for those of tribunals as a court of appeal
would do. It leaves to the tribunal to hear the case again, and in proper case may
command it to do so.”

The error of law must be on the face of record which would mean that all
those documents which appear therefrom to be the basis of decision must reveal the
error in apparent form. The court will grant review if it was satisfied that there was
an error of law on the face of record. Action for declaration can be brought
successfully if it is proved to the satisfaction of the court that there was present an
error of law. It remains true to say that error of law on the face of record is a ground
for review by a supervising court only in respect of decision by an inferior authority
acting judicially. Judicial review on the grounds of an "error on the face of record"
is not to be likely made available where the administrative authority refused to give

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or refrains from giving reasons for its decision.

It may be mentioned here that errors of law must take several forms. The
authority may wrongly interpret the word to which the legal meaning has been
attributed. What is apparent is that judicial review is available for errors of law but
not on error of fact as court in such case cannot seek an appeal and decide the
correctness of findings or correctness of the facts ascertained by the administrative
authority. The court is entitled only to correct the error of law which can be
corrected by the writ of certiorari. The error on the face of record means the
decision has been made wrongly in law and the decision was acting within the
jurisdiction. Error of law takes place when the decision maker acts contrary to the
requirement of legality or, he has broken one of the rules for lawful decision-maker.

The courts in India, alike England, have invoked judicial review in cases
where the decisions of the administrative authorities were tainted by the errors of
law. The sheet-anchor of judicial review of administrative action is the 'error of
law'. It has been noticed that at present judicial thinking in India is tending towards
expanding the scope of the concept of 'error of law'. A consequence of great
importance of this judicial approach is that courts can extend their control over
statutory authorities and can vitiate the decisions in case on error of law is found
apparent on the face of record. It is seen that the error of law apparent on the face of
record has always been the best ground for certiorari being granted.

The error of law in the decision of determination is in itself amenable to a

writ of certiorari but it must be a "manifest error apparent on the face of the
proceedings" i.e. when it is based on the clear ignorance or disregard of the
provisions of law. It may however, be mentioned here that it is a patent or self-
evident error of law which can be corrected by certiorari, but not a mere wrong
decision. An error of fact, however, grave it may appear, cannot be corrected by a
writ of certiorari. What is evident in that error of law must be self-evident.

Gajendragadkar, J. in Syed Yakoob v. K. S. Radha Krishnan observed:

“An error of law which is apparent on the face of record can be corrected by a

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writ but not an error of fact, however, grave it may appear to be. The only case
where a finding of fact might be impugned on the ground of error of law apparent
on the face of record are: (i) erroneously refusing to admit admissible and material
evidence, (ii) erroneously admitting inadmissible evidence which influenced the
finding, and (iii) a finding of fact based on no evidence.”

(iv) Unauthorised Delegation

The principle is that when a power entrusted to a person in circumstance indicating

that trust is being placed in his individual judgement and discretion, he must
exercise that power personally unless he has been expressly empowered to delegate
it to another. The very object of conferring a power on a particular administrative
body is that power must be exercised by the authority alone and must not be
delegated to other authority or official.

The judicial review of unauthorised delegation may be analysed as under:

(a) Where an authority vested with discretionary powers affecting private

rights, empowers one of its committees or sub-committees, members or
office to exercise those power independently without any supervisory
control by the authority, the exercise of power is likely to be held invalid.
(b) A bye-law by which a local authority hands over its own regulatory powers
to an official by vesting him with virtually unrestricted discretion, may be
called as an authorised delegated legislation and may be held to be void.
(c) Degree of control maintained by the delegating authority over the acts of the
delegates or sub-delegates may be material factors in determining the
validity of the delegation.
(d) It is improper for an authority to delegate wide discretionary power to
another authority over which it is incapable of exercising direct control,
unless it is expressly empowered so to delegate
(e) Where the exercise of discretionary power is entrusted to a named officer,
another officer cannot exercise his power in his stead unless express
statutory provisions have been made to this effect.

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 (f) Where power to sub-delegate has been conferred by statute, the delegation
must be conveyed in an authorised form to the designated authority and
must identify sufficiently what are the functions thus delegated instead of
leaving he sub-delegate to decide the ambit of his own authority.
(g) A delegate must exercise its jurisdiction within the four comers of this
delegation, failing which the act done by the administrative authority
becomes unauthorised hence a ground for judicial review.

(v) Fettering of Discretion

When a statute confers powers on an authority to apply a standard as the case in

administrative discretion, it is expected of it to apply it from case to case, and not
fetter its discretion by declaration of rules or policy to be followed uniformly in all
the cases.

It is submitted here that an authority entrusted with the discretionary power

must exercise the same after considering individual cases. Instead if, authority-
imposed fetters on its discretion by adopting fixed rules of the policy to be applied
in all cases coming before them is failure to exercise discretion on the part of that
authority. What is desirable from the authority is that, it must consider the facts of
each case, apply its mind and decide the same. Pronouncement of a general rule to
be applied to all cases irrespective of different facts will certainly amount to
imposing fetters on the discretion by self-imposing rules of policy. It is not
advisable to lay down any rigid rule for guiding the discretion. Free discretion
given by the statute would, thus be fettered if the discretion is not allowed to be
exercised in accordance with the fact of each case.

Any order passed by the administrative authority may be declared bad, if it

imposed fetters on its discretion by self-imposed rules of policy. If the government
while making the policy decision, shuts its ears to the merits of the individual cases,
the action taken cannot be sustained at all. Generally speaking it is in the fitness of
things that an authority entrusted with a discretion must not, by adopting a rule or

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policy disable itself from exercising its discretion in individual cases.

The apex court in Somabhai v. State,observed:

“Generalization on matters which rest on discretion and the attempt to

discover formulae of universal application when facts are bound to differ from case
to case frustrates the very purpose of conferring discretion”.

It may, however, be made clear that there are many cases where imposition
of fetters on discretion by self-imposed rules or policies can be justified. The only
requirement is that when a general policy is adopted, it must be considered on the
basis of the facts and the merit s of each case. Lord Reid has rightly noted that an
administrative authority, having a discretion may formulate a policy or make a
limiting rule as to the future exercise of this discretion, if it thinks that good
administration requires it, provided the authority is always willing to listen to
anyone with something new to say.

Halsbury Laws of England, while elucidating the correct principle of law on the
fetters of discretionary powers states that a public body clothed with statutory
discretion may formulate general rules or principles of policy to guide itself as to
the manner of exercising its own discretion, in individual cases, provided such rules
of principles are legally relevant to the exercise of its power, consistent with the
purpose of the enabling statute and not arbitrary or capricious. Nevertheless, it must
not disable itself from exercising a genuine discretion in a particular case, directly
involving individual interest. The authority must be prepared to consider making an
exception to the general rule if the circumstances of the case warrant special
treatment.

C. Proportionality

The doctrine of proportionality is emerging as a new ground of challenge for

judicial review of administrative discretion. It is a recognised general principle of
law evolved with a purpose to maintain a proper balance between any adverse
effects which its decision may have on the rights, liberties or interests of persons
and the purpose it pursues. The doctrine of proportionally endavours to confine the

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exercise of discretionary powers of administrative authority to mean which are
proportioned to the object to be pursued.

The courts while invoking the doctrine of proportionality may quash the exercise of
powers in which there is not a responsible relationship between the objective which
is sought to be achieved and the means used to that end. The Supreme Court, in
Union of India v. Kuldeep Singh while invoking proportionately has held that "it is
equally true that the penalty imposed must be commensurate with the gravity of the
misconduct and that any penalty disproportionate to the gravity of misconduct
would be violative of Article 14 of the Constitution."

The courts may apply the principle of proportionality as a protection against

imposition of cruel and unusual punishment. The state may impose punishment, the
effect of that punishment must not be grossly disproportionate to what would have
been appropriate. In assessing where the sentence is grossly disproportionate, the
court may consider the gravity of the offence, the personal characteristics of the
offender and particular circumstances of the case in order to determine what range
of evidence would have been appropriate to punish, rehabilitate or deter the
particular offender or to protect the public from him.

The Supreme Court of India while expounding the spirit of principle of

proportionality, has ruled that a restriction imposed on the fundamental rights can
be struck down if it is disproportionate. To sum-up, the courts applies the doctrine
of proportionality to evaluate whether there has disproportionate interference with
the individuals' rights and interests and declares the action as illegal if the courts
finds it contrary to this principle.

D. Unreasonable Exercise of Discretionary Power

The term unreasonableness embraces a wide variety of defects including

misdirection, improper purpose, disregard of relevant considerations and
advertence to immaterial factors. The essence of this criteria of reasonableness has
been explained very lucidly by Lord Greene in Associated Provincial Picture
Homes Ltd. v. Wednesbury Corporation. He observes: “There may be something

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so absurd that no sensible person could ever dream that it lay within the power of
authority.”

The fact is that all powers exercised by the public authorities are liable to be
misused. The courts are, therefore, vigilant to check the misuse of public power
which is the subject matter of judicial review. It is the doctrine of ultra-vires that
confines the public authorities to the power, granted by the statute. The courts are
concerned to see that not only whether power exercised exists but also whether it
has been exercised reasonably.

It is for the court to see that the discretionary power conferred on an

administrative authority is exercised by that authority reasonably. If the power is
exercised unreasonably, there is an abuse of power and the action of the authority
will be ultravires. The rule of unreasonableness denotes a general description of the
things that must not be done. A person entrusted with a discretion must direct
himself properly in law. He must call his own attention to the maters which he is
bound to consider. He cannot exclude from his consideration the matters which are
relevant to what he has to consider. If he does not obey these rules, he may be said
to have been acting unreasonably.

The rule of reasonableness does not consider extraneous matters as the basis of
their decisions. The reasoning faculty of the authority must be exercised objectively
and his order must reveal this thinking process in dealing the reasons for his
discretion. Exercise of discretion judiciously is clearly opposite to capricious or
arbitrary exercise of power. The rule of reason predicates that administrative
discretion necessarily be exercised reasonably and objectively. Unreasonableness,
such as considering extraneous factors, disregarding relevant factors, ignoring
statutory objective, vitiate the order.

Gajendra Gadkar, J. has opined in the landmark case of Pukhraj v. Kohi,

“that the courts cannot sit in appeal over the decision of administrative office. All
that the court can consider is whether there is a ground which prima-facie justifies
the said reasonable belief.” If a decision of administrative authority on a competent
matter is so unreasonable, that no authority could even have come to it, then the

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 court can interfere, but to prove a case of that kind would require something
overwhelming, Thus, the reasonableness could, therefore, mean not what the court
considers unreasonable, but a decision which the court thinks that no reasonable
body would have come to this conclusion. There must be some material on the
basis of which reasonable belief can be founded for giving decision.

Similarly, Grover J. has rightly stated in that there can be no manner of doubt
that words 'reason to believe' suggest that the belief must be that of honest and
reasonable person, based upon reasonable ground and the administrative authority
may act on circumstantial evidence but not on mere suspicion, gossips or rumour.
The administrative authority would be acting without jurisdiction if the reason for
its belief that the conditions are satisfied does not exist or is not material or relevant
to the belief required by the law. The court can always examine this aspect, though
the declaration or the sufficiency of the reasons for the belief cannot be investigated
by the court.

Wednesbury Principles

These are the principles laid down by Court of Appeal in Associated Provincial Picture
Houses Ltd. v. Wednesbury Corp.

• The plaintiffs were the owners and licensees of a cinema house. defendants
were the licensing authority for that area, the Wednesbury Corporation.

• The Wednesbury Corporation had the power under The Cinematograph Act
to grant licenses in any area for cinematograph performances.

• Under the Sunday Entertainments Act, had the power to allow a licensed
place to be open and used on Sundays, “subject to such conditions as the
authority thinks fit to impose”.

• The Wednesbury Corporation granted the license to the plaintiffs on the

condition that no children under 15 years, whether accompanied by an adult
or not, should be admitted to Sunday performances.

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 • Court held, in order to overturn the order of corporation court must be
satisfied that

• The corporation, in making that decision, took into account factors

that ought not to have been taken into account, or

• The corporation failed to take account factors that ought to have

been taken into account, or

• The decision was so unreasonable that no reasonable authority

would ever consider imposing it. (Wednesbury unreasonableness)

• Court ruled in the favour of Corporation.

E. Irrationality

The term 'irrationality' and 'unreasonableness' are often used interchangeably.

However, irrationality may be said to be only one facet of unreasonableness. A
decision is said to be irrational if it is unreasoned; if it is lacking ostensible logic or
comprehensible justification. The term irrationality has reference to those decisions
which are made in arbitrary fashion. 'Absurd' or perverse decisions may be
presumed to have been decided in a fashion that the reason are simply
unintelligible. Mostly there is an absence of logical connection between the
evidence and ostensible reasons for the decision or there is absence of evidence in
support of the decision.

Irrationality may be inferred from the reasons. When reasons are required by
statute or law, those reasons must be both adequate and intelligible. The failure to
non-consideration of reasons may vitiate the decision if the aggrieved can show the
substantial prejudice resulting from a failure on the part of the decision maker to
demonstrate how an issue of law had been resolved or a disputed issue of fact
decided or by demonstrating some other lack of reasoning which raised substantial
doubt over the decision making process.

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 Judicial review may lie on the ground of irrationality where the existence of a
set of facts is a condition precedent to the exercise of power or when the decision
maker has taken into account something which is wrong or where he has
misunderstood the facts on which the decision depends or where there is no
evidence for a finding upon which a decision depends or where the evidence, taken
as whole, is not reasonably capable of supporting finding of facts.

The Supreme Court of India in a landmark case of Indian Railway Construction

Company Ltd v. Ajay Kumar, has held that judicial review is open in cases of
irrationality. While quoting Lord Diplock, the Apex Court has endeavoured to explain
the meaning of irrationality as a decision which is so outrageous in its defiance to logic
or accepted moral standards that no sensible person who had applied to the question to
be decided could have arrived at. The court ruled that a decision can be said to be
irrational if it is not based on the material of the case and is so outrageous as to be in
total defiance of logic and moral norms.

F. Procedural Impropriety

The administrative authorities are required to adhere to some procedure for

arriving at the administrative decision. Procedure 'deals with the structure' of
decision making and not the quality or impact of the decision themselves. The
significant aspect of the procedural justice is to provide the opportunity for
individual to participate in the decision that affects them.

Another important concern of the procedural justice is to promote the quality,

accuracy and rationality of decision-making process. Both aspects of procedural
justice aim at enhancing the legality of that process.

Both aspects of justice i.e. substantive justice and procedural justice - are
important in the field of administrative law. Substantive justice ensues that the
decisions of administrative authority are kept within the bounds of the conferred
powers whereas procedural justice affords individual a fair opportunity to influence
the outcome of a decision and deals with issues such as requirement to consult, to
hear representation and to hold hearing. According to John Rawls, "The rule of law

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requires some form of due process designed to ascertain the truth. The precepts of
natural justice are to ensure that the legal order will be impartially and regularly
maintained.''

It may be submitted here that entire concept of procedural fairness has flown
out of the expression of natural justice. It is an established fact that the procedure
which deals with the entire scenario of decision-making by administrative authority
derives its authority from the ultimate source called as 'Nature'. It was with the
passage of time that the term natural justice became identified with the two
constituents of a fair hearing:

(a) That parties should be given proper opportunity to be heard and to this end
should be given due notice of the hearing (audi altarem partem).

(b) That a person adjudicating should be disinterested and unbiased (nemo judex in
causa sua)

The first principle of natural justice aims at to govern the conduct of

administrative authority in the exercise of their disciplinary functions invested with
the authority to adjudicate upon the matters involving civil consequences to
individuals. It implies that the public authorities must either give the person notice
that they intend to take the matter into their consideration with a view to coming to
a decision, or if they have come to a decision, they propose to act upon it, and to
give him an opportunity of showing cause why such step should not be taken.

Significance of the principle of natural justice read with the doctrine of audi
altarem partem is that is prima facie imposes on administrators, an obligation to act
fairly. When the mandatory procedure is set out in a statute, the administrative
authorities are required to follow it, failing which the decision taken will be
vitiated.

It is evident from the analysis of the cases that there is an implied

presumption that procedural fairness is required whenever the exercise of a power
adversely affects an individual's rights created by statute. The latest trend discloses

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that the duty to afford procedural fairness is not to be limited to the protection of
legal rights in the strict sense but also to more general interests of which the interest
in pursuing a livelihood and in personal reputation.

Another aspect of procedural impropriety is that the decision maker should not
be biased or prejudiced in a way that precludes fair and genuine consideration being
given to the argument advanced by the parties. Bias can be defined as an operative
prejudice whether conscious or unconscious and aims at preventing hearing fi-om
being a shame or a ritual or a mere exercise in symbolic reassurance. It not only
concern to prevent the distorting influence of actual bias but also to protect the
integrity of decision-making process by ensuring the circumstances should not give
rise to appearance or risk of bias.

G. Jurisdictional Error

The administrative discretion is founded on one of the basic principles to

prevent administrative authorities from exceeding their powers or neglecting their
duties imposed under the law. When jurisdiction had been conferred upon an
authority, the authority may make errors of law within its jurisdiction. It is clear that
judicial review, as traditionally held not with correctness of findings as such, but
with their legality.

The term jurisdiction means authority to decide. Where an authority is

empowered or required to inquire into question of law or fact for the purpose of
giving a decision its findings cannot be impeded collaterally or on an application of
judicial review but are binding until reversed on appeal. It may be submitted here
that where a court has jurisdiction to entertain an application, it does not lose its
jurisdiction by coming to a wrong conclusion, whether it was wrong in law or fact.
it does not lose its jurisdiction even if its conclusion on any aspect of its proper
field of inquiry is entirely without evidential support. The question whether
administrative authority has jurisdiction, depends not on the truth or falsehood of
act into which it has to inquire or upon the correctness of its findings on these facts,
but upon their nature, and its determinable at the commencement, not at the
conclusion of inquiry. The administrative authority empowered to determine the

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issue has jurisdiction to determine all questions of law and fact relating to that
question, and it does not exceed its jurisdiction by determining any of those
questions incorrectly.

The jurisdiction impliedly denotes that the administrative authorities are

required to discharge their functions under the statute. The administrative body can
decide only such question as it is authorised to decide under the statute concerned
and that it has no power to dub any provision of the statute as ultra-vires. The court
have held that the administrative authority cannot go into the question of validity of
substantive law or procedure laid down in the statute or the rules framed thereunder
since it itself is creature of statute. Prof. K. C. Davis has said that it is difficult to
prescribe straitjackets looped with chained as uniform for the administrator,
however, he suggests that jurisdiction should be structured, confined and checked
through judicial review. In essence, the doctrine of ultra-vires permits the courts to
strike down decision made by administrative bodies exercising public functions, if
they exceed the jurisdiction provided in the statute under which they exercise their
powers.

where an Act confers a jurisdiction, it impliedly also grants jurisdiction of doing

such acts or employing such means as are essentially necessary to its execution.
The express grant of statutory powers carries with it, by necessary implications, the
authority to use all reasonable means to make such grant effective- Chief Executive
Officer and Vice-Chairman, Gujarat Marketing Board
v. Haji Dand Haji, (1996) 11 SCC 223.

Acting Without Jurisdiction

• News papers Ltd. v. State Industrial Tribunal (1957)

• State of Gujarat v. Patil Raghav Nath (1969)

• Ahmadabad St. Xavier’s College Society v. State of Gujarat (1974)

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Exceeding Jurisdiction

• London County Council v AG (1902)

• Calcutta Electric Supply Corp. v. Workers’ Union (1959)

H. Acting under Dictation

The cardinal principle of administrative law is that an authority entrusted with a

discretion must not, in the purported exercise of its discretion, act under the
dictation of another body. All authorities entrusted with statutory discretion must be
guided by consideration of public policy, and in some context, the policy of
existing government will be a relevant factor in weighing those considerations, but
this will not absolve them from their duty to exercise their individual judgement.

The decision of the administrative authority vested with discretionary powers

has to be quashed where it surrenders its discretion to another person. P. F.
Cooperative Society v. Collector Thanjavour, AIR 1975 Mad 81: “This, in law,
would amount to non-exercise of its power by the authority and will be bad in the
eyes of law.”

Gajendragadkar, C. J., in Rajagopala Naidu v. State Transport Appellate

Tribunal120 "It is of the essence of fair and objective administration of law that the
decision of the judge or tribunal must be absolutely unfettered by the extraneous
guide by the executive or administrative wing of the state. If the exercise of
discretion conferred on a quasi-judicial tribunal is controlled by any such direction
that forges fetters on the exercise of quasi-judicial authority and the presence of
such fetters would make the exercise of such authority completely inconsistent with
the well- accepted notion of judicial process. The scope of jurisdiction of the
tribunal, constituted by the
statute, can well be regulated by the statute and principle for the guidance of the

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said tribunal may also be prescribed subject of course, to the inevitable requirement
that these provisions do not contravene the fundamental rights granted by the
Constitution."

Venkatachaliah J. observed: "The authority cannot permit its discretion to

be influenced by the dictation of others as this would amount to abdication and
surrender of its discretion. It would then not be the authority's discretion that is
exercised, but of somebody else. If an authority hands over its discretion to another
body it acts ultra-vires. Such an interference by a person or body extraneous to the
power would be, plainly contrary to the nature of power conferred upon the
authority.

There is, however, a difference between seeking advice or assistance and

being dictated to. Advice or assistance may be taken so long as the authority
concerned does not mechanically act on it, and itself take the final decision in the
matter before it. The discretion may be exercised by the authority concerned
genuinely without blindly and mechanically acting on the advice.

In Commissioner of Police v. Gordhandas while distinguishing

between seeking an advice and acting under dictation, held that the administrative
authority was entitled to take into consideration the advice tendered to it by public
body set up for this express purpose and it was entitled in the bonafide exercise of
its discretion to accept that advice and act upon it even though, the authority would
have acted differently if this important factor had not been present in its mind when
it reached a decision.

Similarly, in Indian Railway Construction Company v. Ajay Kumar the Supreme

Court of India struck down the order passed by the administrative authority on the
ground that it had acted under the dictation of a superior authority and had therefore,
surrendered its discretionary power to the dictation of other authority and had not acted
independently.

In Muni Survarat Swami Jain S. M. P. Singh v. Arjun Mathuran Gaikwad, the

Apex Court while expounding the scope of the term 'acting under dictation' has

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 held that if the authority in whom the discretion is vested does not act
independently and passes an order under the instruction and dictation of other
authority, the court would intervene in the matter, quash the orders and issue a
mandamus to that authority to act on its own in accordance with a spirit of powers
vested in it by the statute.

I. Non-application of Mind

It is an established rule that the authority vested with the discretionary power
ought to exercise that power after applying its mind to the fact and circumstances of
the case in hand. If this condition is not complied with, its action or decision will be
bad and the authority will be deemed to have failed to exercise its discretion in
accordance with the intention of the legislature contained in the statute.

The discretion must be exercised after applying mind to facts and circumstances
and not in a mechanical manner. This may happen because the authority has only
taken one view of its powers, or has been lazy or casual, or because of over
reliance on subordinates.

Non-application of mind may be manifest and gathered from several situations:

(a) When the authority fails to apply its mind to vital facts. When the authority
might have acted mechanically
(b) without due care and caution and without a sense of responsibility in the
exercise of its discretion.
(c) When the authority may not have complied with condition precedent laid
down in the statute itself for the exercise of that power.
(d) When the authority might have abdicated its powers to someone else or it
may have acted under the dictation of its superior.
(e) The authority may have imposed fetters on the exercise of its discretionary
power.

The Supreme Court has rightly ruled in Abdul Razak Abdul Wahab v. Commissioner of
Police, that the fact of non-awareness of the administrative authority is a strong ground

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to establish that the subjective satisfaction could not be arrived by the authority on the
consideration of relevant material. The Apex Court has laid emphasis on the fact that care
should always be taken to avoid mere copying of the words from the statute while making an
order.

The court has reminded the fact that ordinarily and generally in a large number
of cases, the authority merely apprehends the dispute and do not go into the details
of the material facts of the case and arrive at a decision without the application of
mind.

The analysis of the judgements of the Apex Court disclose that the judiciary has
always laid emphasis on the aspect that the authority vested with the discretionary
power must exercise that power with due care and caution after applying its mind to
the facts and circumstances of the case. Failure to exercise discretion in the absence
of application of mind is illegal and liable to vitiate it in the eyes of law. Justice
Hidayatullah also took the same viewpoint in Barium Chemical Ltd. V. Company
Law Board, and observed: "No doubt the formation of opinion is subjective
but existence of circumstances relevant to the inference as the sine quo non for
action must be demonstrable. If the action is questioned on the ground that no
circumstances leading to an inference of the kind contemplated by the Section
exists, the action might be exposed to inference unless the existence of the
circumstance is made out.”

J. Malice or Malafide

It is, undoubtedly, a settled principle that every power must be exercised in

good faith. There is a condition implied in the statute which creates power, namely
that the power shall be used bonafide for the purpose which it is conferred. Every
action of the public authority is expected to be supported by reason and good faith,
objectivity, genuine satisfaction, reason and rationales. It is not only the power but
the duty of the court to ensure that all authorities exercise their powers properly,
lawfully and in good faith. If the powers are exercised with oblique motive, in bad
faith or for extraneous or irrelevant considerations, there is no exercise of power
known to the law and action cannot be termed as, action in accordance with law.

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 It is imperative to submit here that there is always a condition implied in the
instruments which create power that they shall exercise these powers for the
purposes, for which they are conferred in bonafide belief. Fundamental to the
legitimacy of public decision making is the principle that official decision must not
be infected with motives such as fraud, dishonesty, malice, personal self-interest,
motive, etc.

Two types of malice:

1. Malice in Fact

2. Malice in Law

High degree of proof is required for review due to malice and mere allegations do
not suffice. in the absence of sufficient material, the court will not interfere,
however, mala-fide exercise of statutory power conferred on an authority is liable
to be struck down if it is established by the party who has alleged it so. (Somesh
Tiwari v. Union of India, (2009) 2 SCC 592.)
The factors which are important in proof of mala fides:

i. Direct evidence (e.g. documents, tape recordings etc.),

ii. Course of events,

iii. Public utterance of the authority,

iv. Deliberate ignoring of facts by the authority and

v. Failure to file affidavits denying the allegations of mala fides

A decision based on malice is always expected to be directed 'ad hominem' i.e.

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where a bye law or order is made specially to thwart an individual for his cause.
Malice may arise out of personal or political animosity towards those who are
directed by its exercise.269 The personal animosity towards a party disqualify an
adjudicator. To be true, malafide denotes ill will, corrupt motive, dishonest
intention in relation to the exercise of the statutory power. Strictly speaking, a
power is said to have been exercised maliciously if its repository is motivated by
personal enmity towards those who are affected by its executions achieve an object
other than that for which authority believes the power to have been conferred. [See
Pratap Singh v. State of Punjab (1964)]

It is added here that the principle of mala fide cannot be alleged against the
government policies and the action taken by the administrative authorities in
pursuance of the government policies cannot be declared illegal, arbitrary or ultra-
vires.

K. Colourable Exercise of Powers

The decision given by the administrative authority is always open to challenge at

the instance of the aggrieved party if the power is exercised by it ostensibly for the
purpose for which it was conferred. The doctrine of colourable exercise of powers
denotes an idea that the power exercised by the administrative authority ostensibly
for the authorised and but really to achieve some other purpose. The courts have
used this idiom to denounce an abuse of discretion which speaks that under the
'colour' or 'guise' or power conferred for one purpose, the authorities seek to
achieve something else which is not authorised to do so under the law in question.
The transgression made by the authority in the guise of the colourable exercise of
power vested in it may be patent, manifest, or direct, but it may also be disguised,
covert and indirect and if be this latter class of the cases that the expression
'colourable legislation' has been applied in many judicial pronouncements. The idea
conveyed by the expression is that although, a legislature in passing a statute
purports to act within the limit of is power, yet in substance and in reality, it
transgresses those powers, the transgression being veiled by what appears on proper
examination to be a mere pretence or disguise. (See Ashok Kumar v. Union of
India AIR 1991 SC 1792)

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 It may be pointed out here that if a lawful object is chosen as a colour or
guise for doing something other than genuinely achieving that object, the action
would be termed as colourable exercise of power and it cannot be sustained in the
eyes of law as it is mala-fide exercise of the power. [See State of Bihar v. Shree
Baidyanath Ayurved Bhawan Pvt. Ltd., (2005) 2 SCC 762]. Control of
Administrative Action- Judicial Control

Introduction

It is an eternal principle of modern democratic Govt. that “the governing

power wherever located must be subject to the fundamental constitutional
limitations.” Parliament’s inability to exercise control over administrative powers
essentially calls for control by judiciary. Parliament could theoretically exercise this
control, but in practice it could not, since it did not have the time. Hence it became
the duty of the Judges, though unelected, to become representatives of the people
and ensure that executive authorities do not abuse their powers, but instead use it in
the public interest.

But Judges too are not supposed to act arbitrarily. Hence a body of legal
principles was created (largely by Judges themselves in their judgments and not by
Parliament) on the basis of which Judges had to exercise their powers of judicial
review of administrative action on settled principles but not arbitrarily.

The objectives of judicial control over administrative actions are twofold:

Control Mechanism to curb administrative abuse of power, and remedies and relief
to the person affected by administrative action.

In Tata Cellular v. Union of India, (1994) 6 SCC 651 the Supreme Court laid down the
following basic principles relating to administrative law:

(1) The modern trend points to judicial restraint in administrative action;

(2) the Court does not sit as a court of appeal over administrative decisions, but

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merely reviews the manner in which the decisions were made;

(3) the Court does not have the expertise to correct administrative decisions. If a
review of the administrative decisions is permitted it will be substituting its own
decision without the necessary expertise, which itself may be fallible;

(4) a fair play in the joints is a necessary concomitant for the administrative
functioning.

(5) however, the administrative decision can be tested by application of the

Wednesbury principle of reasonableness, and must be free from arbitrariness, bias
or mala fides.

Kinds of Controls over administrative power

Statutory controls

Statutory controls are given in the statute (or rules or regulations made
under the statute). Any executive action in violation of the same will be declared
illegal by the courts, by applying the ultra vires doctrine.

Thus, where the London County Council had statutory powers to purchase
and operate tramways, it was held by the House of Lords that it had no power to
run omnibuses, which was not incidental to the running of tramways4 Similarly a
local authority with the power to acquire land other than "park, garden or pleasure
house" acts in excess of jurisdiction in acquiring land which is part of a park (White
and Collins v. Minister of Health).

An executive authority may also act unlawfully if it fails to perform a duty

imposed upon it by statute such as maintenance of civic services (e.g. sewerage,
drainage, water supply, etc.) by the Municipalities or other local bodies whose duty
under the statute is to maintain such services. Here also a mandamus will issue

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from the courts to compel such authority to perform its statutory duty.

Where the statute delegates a power to a particular authority, that authority

cannot sub- delegate that power to another authority or person unless the statute
permits such sub-delegation.

Similarly, discretion exercised by the prescribed authority on the direction

of a higher authority would be illegal. When the statute prescribes the manner of
doing an act, the authority must do it in that manner alone.

Difficulty, however, arises in the matter of what is called "subjective

discretion" conferred by the statute. An instance of such subjective discretion is
where the statute says that an executive authority can take such decision "as it
deems fit". Another example is where the statute says that action can be taken or
order passed where the authority has "reasonable grounds to believe" to take that
action or pass such order e.g. Section 132 of the Income Tax Act which confers
power on the Commissioner of Income Tax to order search and seizure where he
has "reason to believe" that some person is concealing his income.

In Liversidge v. Anderson, 1942 AC 206 the Defence (General) Regulations, 1939

provided:

"If the Secretary of State has reasonable cause to believe any person to be of hostile
origin or association, he may make an order against that person directing that he be
detained."

The detenu Liversidge challenged the detention order passed against him by
the Secretary of State. The majority of the House of Lords, except Lord Atkin, held
that the Court could not interfere because the Secretary of State had mentioned in
his order that he had reasonable cause to believe that Liversidge was a person of
hostile origin or association. Liversidge8 was delivered during the Second World
War when the executive authority had unbridled powers to detain a person without
even disclosing to the Court on what basis the Secretary had reached to his belief.
However, subsequently, the British courts accepted Lord Atkin's dissenting view

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that there must be some relevant material on the basis of which the satisfaction of
the Secretary of State could be formed. Also, the discretion must be exercised
keeping in view the purpose for which it was conferred and the object sought to be
achieved, and must be exercised within the four corners of the statute.

Sometimes a power is coupled with a duty. Thus, a limited judicial review against
administrative action is always available to the courts.

Non-statutory controls

Some of the non-statutory controls are:

(a) The Wednesbury principle

(b) Rules of natural justice

(c) Proportionality

(d) Promissory estoppel

(e) Legitimate expectation

Promissory estoppel

The doctrine of promissory estoppel is a doctrine of equity. It makes a

promise irrevocable when the acceptor acts on the promise and irreversibly changes
his position. The rationale behind this doctrine is that it is unfair if one party, acting
on the promise of the other, does something to his detriment and receives no
consideration because the promise is revoked.

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 The government can enter into a contract just like any other individual or
entity. Today, state officials make promises to individual parties who enter into
commitments on the basis of these promises, only to find that the government’s
discretion cannot be relied upon. The defence of statutory provisions provide
sufficient umbrage for the government to go back on promises. Therefore, in this
time of escalating administrative and executive facets of the State, the doctrine of
promissory estoppel has gained considerable importance in the field of
administrative law.

The foundation of the doctrine of promissory estoppel in India, as such, was laid
down in the ratio of Collector of Bombay v. Municipal Corporation of the City of
Bombay. 1952 SCR 43 Chandrashekar Aiyer J., in this case, expressed the following
view:

“But even otherwise, that is if there was merely the holding out of a promise
that no rent will be charged in the future, the Government must be deemed in the
circumstances of this case to have bound themselves to fulfil it. Courts must do
justice by the promotion of honesty and good faith, as far as it lies in their power”.
Nevertheless,

it was in the case of Union of India vs. Anglo Afghan Agencies, 1968 SCR (2) 36 that
there was a manifest depiction of the newfound stress on the principles of equity
under the doctrine. The Government of India announced certain concessions with
regard to the import of certain raw materials in order to encourage export of woollen
garments to Afghanistan. Subsequently, only partial concessions and not full
concessions were extended as announced. The Supreme Court applied the rule of
estoppel based on equity and maintained that such promises may bind the
Government even in the absence of constitutional formalities prescribed for
government contracts.

The Anglo Afghan case depicted a judicial trend. The key to this trend was to be
found in the following statement of the Supreme Court:

“If our nascent democracy is to thrive different standards of conduct for the people
and public bodies cannot ordinarily be permitted”

However, the judicial attitude in the matter of applying promissory estoppel

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in the post Anglo Afghan period with respect to applying promissory estoppel
against administrative remained ambivalent. The doctrine was applied in some
cases, and not in others.

It was in Motilal Padampat Sugar Mills v Uttar Pradesh 1979 AIR 62 that the
doctrine of promissory estoppel was expounded afresh and given its most liberal
interpretation by the Supreme Court. In this case, the Government of U. P. notified a
sales tax exemption for three years to all new industrial units with a view to increase
industrial progress. The appellant company wanted to avail of the exemption by
setting up a hydrogen plant for Vanaspati manufacturing. In answer to the appellant
company’s enquiry, the Director of Industries confirmed the tax concession as
announced by the government. The appellant company thereupon took steps towards
getting finances for the project and the necessary machinery.

The Chief Secretary and advisor to the government made a further oral assurance
about the exemption from sales tax as well as gave a written confirmation. Later, the
government announced only partial sales tax concessions. The appellant agreed to
these concessions. At an even later date, however, the government rescinded the
concessional rates and the appellant company challenged it. The facts necessary for
invoking the doctrine of promissory estoppel were, therefore, clearly present and the
Government was bound to carry out the representation and exempt the appellant
from sales tax in respect of sales of Vanaspati effected by it in Uttar Pradesh for a
period of three years from the date of commencement of the production. The
Government was held bound to the principle of promissory estoppel to make good the
prosecution made by it.

The importance of equity was emphasised as it was held that the doctrine of
promissory estoppel was not really based on the principle of estoppel and instead
was evolved by equity in order to prevent injustice.

It was pronounced that there was no reason why the doctrine should be
given only a limited application by way of defence and that it could be the basis of
cause of action. In addition, Justice Bhagwati stated :

“The law may, therefore, now be taken to be settled as a result of this decision, that
where the Government makes a promise knowing or intending that it would be
acted on by the promise and, in fact, the promise, acting in reliance on it, alters his

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position, the Government would be held bound by the promise and the promise
would be enforceable against the Government at the instance of the promise,
notwithstanding that there is no consideration for the promise and thepromise is not
recorded in the form of a formal contract as required by Article 299 of the
Constitution.”

Another important aspect of the doctrine of promissory estoppel that was

argued in this case was the complexity that arose with the conflicting doctrine of
executive necessity. The doctrine of executive necessity prevents the government
from contracting with another party to refrain from exercising its statutory
functions. Since the term ‘statutory functions’ is a very broad one, this is a major
constraint to the application of the doctrine of promissory estoppel to government
contracts.

It was held that the doctrine could not be defeated on the plea of executive
necessity or freedom of future executive action. There is, however, much
controversy regarding this particular decision as there is a conflicting decision in
the case of Shri Bakul Oil Industries v State of Gujarat. In that case, the
Government of Gujarat issued a notification under Section 49 (2) of the Gujarat
Sales Tax Act, 1969 exempting wholly or partly from payment of sales tax or
purchase tax, as the case may be, certain specified classes of sales and purchases in
order to stimulate wider distribution of industrial units in rural areas. The appellant
company set up a plant for decorticating and crushing cotton and groundnut seeds
for manufacture of oil. The plant and the appellant company satisfied all the
requirements laid out in the notification. When the appellant company applied for
the exemption, the government rejected the offer and amended the notification
saying that this particular category of plants is sufficiently well distributed in rural
areas. The appellant company challenged the rejection in Court. The doctrine of
promissory estoppel was not applied and it was held that the government was not
estopped from amending the notification.

Though the facts are almost similar, the decisions in these two cases are in
conflict with each other. This presents a divergence of opinion. In recent times,
there has been a leaning towards the decision in Shri Bakul Oil Industries v State of
Gujarat because there has been an increasing tendency of the Courts to apply the

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doctrine of executive necessity in cases involving changes in public policy. This
virtually makes the doctrine of executive necessity an effective defence against the
doctrine of promissory estoppel.

Doctrine of Legitimate Expectation

The doctrine of legitimate expectation belongs to the domain of public law.

It is proposed to give relief to the people when they are not able to justify their
claims on the basis of law. As they had suffered a civil consequence because their
legitimate expectation had been violated.

Lord Denning first used the term ‘legitimate expectation’ in 1969 and from
that time it has assumed the position of a significant doctrine of public law in
almost all jurisdiction. In India, this doctrine had been developed by the court in
order to check the arbitrary exercise of power by the administrative authorities.
According to private law a person can approach the court only when his right based
on statute or contract is violated, but this rule of locus standi is relaxed in public
law to allow standing even when a legitimate expectation from a public authority is
not fulfilled. This doctrine grants a central space between ‘no claim’ and a ‘legal
claim’ wherein a public authority can be made accountable on the ground of an
expectation, which is legitimate. For example, if the Government has made a
scheme for providing drinking water in villages in certain area but later on changed
it so as to exclude certain village from the purview of the scheme then in such a
case what is violated is the legitimate expectation of the people in the excluded
villages for tap water and the government can be held responsible if exclusion is not
fair and reasonable. Thus, this doctrine becomes a part of the principles of natural
justice and no one can be deprived of this legitimate expectation without following
the principles of natural justice.

In the bulk of the administrative law the doctrine of legitimate expectation

is also a fine example of judicial creativity. Nevertheless, it is not extra-legal and
extra-constitutional. A natural habitat for this doctrine can be found in Article 14 of
the Constitution which abhors arbitrariness and insists on fairness in all
administrative dealings. It is now firmly established that the protection of Article
14 is available not only in case of arbitrary ‘class legislation, but also in case of

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arbitrary ‘State action’. Thus, the doctrine is being hailed as a fine principle of
administrative jurisprudence for reconciling power with liberty. (Food Corporation
of India V. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601).

In India the first reference to the doctrine is made in State of Kerala v. K.G.
Madhavan PillaiIn this case, the government had issued a sanction to the
respondents to open a new unaided school and to upgrade the existing ones.
However, after 15 days a direction was issued to keep the sanction in abeyance.
This order was challenged on the ground of violation of the principles of natural
justice. The court held that the sanction order created legitimate expectation in the
respondents which was violated by the second order without following the
principles of natural justice which is sufficient to vitiate an administrative order.

The doctrine was also applied in SC and WS Welfare Association v. State of

Karnataka, in this case the government had had issued a notification notifying areas
where slum clearance scheme will be introduced. However, the notification was
subsequently amended and certain areas notified earlier were left out. The court
held that the earlier notification had raised legitimate expectation in the people
living in an area, which had been left out in a subsequent notification, and hence
legitimate expectations cannot be denied without a fair hearing.

Thus, where a person has legitimate expectation to be treated in a particular way,

which falls short of an enforceable right, the administrative authority cannot deny
his legitimate expectations without a fair hearing. Legitimate expectation of fair
hearing may arise by a promise or by an established practice.

The Supreme Court in Union of India v. Hindustan Development Corp. got

the opportunity of laying down the meaning and scope of this doctrine. Explaining
the meaning of the doctrine and the legitimacy of the doctrine when it arises, the
court held that, “time is a threefold present: the present as we experience it, the past
as a present memory and future as a present expectation. For legal purpose, the
expectation cannot be the same as anticipation. It is different from a wish, a desire
or a hope nor can it amount to a claim or demand on the ground of a right. However
earnest and sincere a wish, a desire or a hope may be and however confidently one
may look to them to fulfilled, they by themselves cannot amount to an assertible
expectation and a mere disappointment does not attract legal consequences. A pious

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hope cannot amount to a legitimate expectation. The legitimacy of an expectation
can be inferred only if it is founded on the sanction of law or custom or an
established procedure followed in a natural and regular sequence. Again, it is
distinguishable from a mere expectation. Such expectation should be justifiably
legitimate and protectable. Every such legitimate expectation does not by itself
fructify into a right and, therefore, it does not amount to a right in a conventional
sense.”

In this case in the absence of any fixed procedure for fixing price and
quantity for the supply of food grains, the Government adopted a dual pricing
system i.e., lower price for big suppliers and higher price for small suppliers in the
public interest in order to break the cartel. The Court held that there is no denial of
legitimate expectation, as it is not based on any law, custom or past practice. The
court said that it is not possible to give an exhaustive list wherein legitimate
expectations arise but by and large they arise in promotion cases, though not
guaranteed as a statutory right, in cases of contracts, distribution of charges by the
government and in somewhat similar situations.

The court also held that legitimate expectation gives sufficient locus standi
to the applicant for judicial review. The doctrine is to be confined mostly to a right
of fair hearing before a decision, which results in negating a promise, or
withdrawing an undertaking is taken.

Though the denial of legitimate expectation is a ground for challenging an

administrative action, but the court will not interfere unless the denial is arbitrary,
unreasonable, not in the public interest, and inconsistent with principles of natural
justice or where denial is in violation to a right. However, it does not mean that an
administrative body cannot change its policy, so, denial of legitimate expectation
can be justified only by showing some overriding public interest. The court further
held that unless the fair hearing is not a pre-condition for the exercise of power the
doctrine has no role to play and the court should not interfere with the exercise of
discretion by the administrative authority. Thus, the extent of judicial review of
administrative action is very limited. The doctrine of legitimate expectation is ‘not
the key which unlocks the treasury of natural justice and it ought not to unlock the
gates which shuts the court out of review on the merits. The court should exercise

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self-restraint and restrict the claim of denial of legitimate expectation to the legal
limitations.

Remedies Against Unlawful Administrative Action

Public Law Remedies

Writ Jurisdiction of Supreme Court and High Court

Under articles 32 and 226, the Supreme Court and high courts have the
power to issues directions, orders or writs including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari. The rights to be
enforced through such writs must be against the State, except in the case of the writ
of habeas corpus, which may be issued even against a private person who might
have detained another person illegally.

Article 32, which itself is fundamental right, is invoked for the enforcement
of fundamental rights guaranteed in Part III of the Constitution. Whereas the high
courts have the power to issue writs not only for the enforcement of the
fundamental rights but also 'for any other purposes'. The jurisdiction of the high
courts under Article 226 is wider in scope than the Supreme Court under Article 32.

Traditionally, the phrase 'for any other purpose' has been interpreted to mean,
enforcement of any statutory or Common Law rights. The proposition that purely
contractual matters cannot be enforced through writ jurisdiction is no more accepted
as a general proposition. Over the years, the judicial interference with respect to the
contractual matters of the government has been on increase to ensure fairness in
actions. For instance, claim under an insurance policy or arbitrariness in distribution
of largess by the State through contract can be enforced in the high courts through
writ petitions.

The jurisdictions under Articles 32 and 226 are concurrent and independent
of each other so far as fundamental rights are concerned. There is choice of forum.

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One may move either the Supreme Court under article 32 or an appropriate high
court under article 226. The position, hitherto, has been that a petitioner seeking to
enforce fundamental right can come straight to the Supreme Court without going to
the high court first. The Supreme Court's power to provide appropriate remedy is
not discretionary but a matter of right. In Fertilizer Corporation Kamgar Union v.
Union of India136Chandrachud, C.J., said:

“The jurisdiction conferred on the Supreme Court by Article 32 is an important part

of the basic structure of the Constitution because it is meaningless to confer
fundamental rights without providing an effective remedy for their enforcement, if
and when they are violated.”

The jurisdiction of high courts to entertain writ petition is discretionary. It is

far more discretionary in respect of 'any other purposes'. The legal position in this
respect has been summarized in T. P. Mahajan v. Union of India in the following
words:

“The power of the High Court to act under Article 226 of the Constitution is
discretionary. It is a supervisory power, which is to be contrasted with an appellate
power. While appeal is a matter of right, the collateral attack on administrative
action under Article 226 is not so.”

The courts in India have developed rules and norms to regulate writ
jurisdiction. There are various grounds on which the high court may refuse to
entertain a writ petition. For instance, the high court would have to scrutinize the
conduct of the petitioner. If he comes to court with unclean hands, the High Court
may refuse to entertain his petition. For, the high court is acting in the exercise of
its extraordinary original jurisdiction only with a view to granting expeditious relief
in the interest of justice. It cannot be compelled to entertain writ petitions when it is
of the view that the interests of justice do not favour such a course.

Other grounds on which writ petition may be refused are as follows: (i) Res
judicata (ii) Inordinate delay (iii) Exhaustion of alternative remedies (iv) If
involved a question of disputed facts or interpretation of law within jurisdiction.

Kinds of Writs

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Habeas Corpus

Habeas Corpus is a Latin term which may be translated into English in some such
form as “you must. have the body”. Writ of habeas corpus is used primarily to
secure the release of a person who has been detained unlawfully or without any
legal justification. By means of this writ an individual, who has been deprived of
his personal liberty by any executive act, may have the validity of such act tested,
before a superior court. The object of the writ is to ascertain whether there is any
legal justification for the detention of the person in custody.

A detention becomes unlawful not only where there is no law to justify it

but also where procedure prescribed by the law which authorities the detention has
not been followed, and, in determining whether such procedure has been complied
with, the court applies a strict standard not only in interpreting the terms of the
statute but also in exacting a strict compliance with the requirements, so interpreted,
in fact.

Shastri C.J., in Ram Narayan v. State of Delhi138 observed “Those who feel
called upon to deprive other persons of their personal liberty in the discharge of
what they conceive to be their duty, must strictly and scrupulously observe the form
and rules of the law. That has not been done in this case. The petitioners now
before us are, therefore, entitled to be released, and they are set at liberty
forthwith.”

The efficacy of the writ of habeas corpus, depends to a large extent, on the
operative part of the law under which the freedom of an individual has been
curtailed. As for example, the preventive detention law gives power to the executive
to detain a person in preventive detention in its discretion and thus the scope left for
the courts to review the validity of such a detention is very restricted. Habeas
corpus cannot be granted where a person has been committed to custody under an
order from a competent' court when prima facie the order does not appear to be
without jurisdiction or wholly illegal.

The purpose for which the writ of habeas corpus may be issued may include;

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 (i) testing the regularity of detention under preventive detention laws and
any other law;

(ii) securing the custody of a minor; (iii) securing the custody of a person alleged
to be a lunatic;

(iv) securing the custody of a marriage partner; (v) testing the regularity of
detention for a breach of privilege by the House; (vi) testing the regularity of
detention under court martial; (vii) testing the regularity of detention by the
executive during emergency, etc.

Besides, these traditional grounds for which the writ of habeas corpus may
be issued, Krishna Iyer J. in Sunil Batra II v. Delhi Administration, AIR 1980 SC 1579
opened new vistas for the issuance of this writ. Batra II case arose out of a letter
written by a convict to one of the judges of the Supreme Court alleging inhuman
torture to a fellow convict. Krishna Iyer J. treated this letter as a petition of habeas
corpus filed on behalf of Prem Chand though the letter had not demanded his
release from the jail. The learned judge followed a series of American cases,
employing the writ of habeas corpus for the neglect of state penal facilities like
overcrowding, understaffing, in sanitary facilities, brutality, constant fear of
violence, lack of adequate medical and mental health, censorship of mail, inhuman
isolation, segregation, inadequate or non-existent rehabilitative or educational
opportunities. The writ was also issued when a ban was imposed on law students to
conduct interviews with prisoners for affording them legal relief.

The writ is issued to the authority which has the aggrieved ‘r person in its
custody. A prayer for the writ may be made by the prisoner himself or in case he is
unable to do so, by someone else on his behalf.

Quo-Warranto

Quo Warranto means, “by warrant or authority". it is a judicial order issued

by the Supreme Court or a High Court by which any person who occupies or usurps
an independent public office or franchise or liberty, is asked to show by what right
he claims it, so that the title to the office, franchise or liberty may be settled and any
unauthorised person ousted. The writ of quo warrant is used to judicially control
executive action in the matter of making appointments to public offices under

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relevant statutory provisions. The writ is also used to protect a citizen from the
holder of a public office to which he has no right. Furthermore, it tunes the
administration by removing inefficient and unqualified personal and imposters from
public offices. Thus, the writ of quo warranto gives personal and imposters from
public officers Thus, the writ of quo warranto gives the judiciary a weapon to
control the executive, the legislature statutory and non-statutory bodies in matters of
appointments to public officers. Conversely, it protects a citizen from being
deprived of a public office to which he had a right. The writ calls upon the holder
of a public office to show to the court under what authority he is holding the office,
the court may restrain him from acting in the office and may also declare the office
to be vacant.

Conditions:

Office must be a public office- The Madras High Court in Anand Bihari v. Ram
Sahai, AIR 1952 Mad. 31

a) held that a public office is one which is created by the Constitution or a

statute and the duties of which must' be such in which the public is
interested.
Public office must be substantive in nature- A substantive office is one which is
permanent in character and is not terminable at will. In R. v. Speyer, (1916)1 K B
595.

b) the word ‘substantive’ was interpreted to mean an “office independent of

title".
c) The Person must be in actual possession of the office- Mere declaration that
a person is elected to an office or mere appointment to a particular office is
not sufficient for the issue of quo warranto unless such person actually
accepts such office.

d) The office must be held in contravention of Law- There must be a clear

violation of law in the appointment of a person to the public office. If there

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 is a mere irregularity, quo warranto will not lie.

Mandamus

Mandamus literally means a command. “It commands the person to whom it

is addressed to perform some public or quasi-public legal duty which he has refused
to perform and the performance of which cannot be enforced by any other adequate
legal remedy...” where any tribunal inferior court or body of persons charged with
the performance of a public duty do not discharge that duty, mandamus lies to
compel him to do it.”

It is considered as a residuary remedy of public law. It is a general remedy

whenever justice has been denied to any person. It is a judicial remedy issued in the
form of an order from the Supreme Court or a High Court to any constitutional
statutory or a non-statutory agency to do or to forbear from doing some specific act
which that agency is obliged to do or refrain from doing under the law and which is
in the nature of a public duty or a statutory duty. It can be issued to undo what has
already been done in contravention of a statute, or to enforce a duty to abstain from
acting unlawfully. For example, mandamus can be issued to restrain the
government from superseding, a reference made by it earlier of an industrial dispute
for adjudication to a labour tribunal because under the law the government has no
authority to do so.

Thus, the function of the mandamus is to keep the public authorities within
the limits of their jurisdiction while exercising public functions. However, a writ of
mandamus cannot be issued to direct the government to refrain from enforcing the
provisions of law or to do something which is contrary to law.
Mandamus can be issued to any kind of authority is respect of any kind of function
administrative, legislative, quasi-judicial, judicial. The Supreme Court in Mansukhla
lVithaldas v. State of Gujarat, AIR 1997 SC 3400. has observed that mandamus which
is a discretionary relief under Article 226 is requested to be issued inter alia, to
compel performance of public duties which may be administrative, ministerial or
statutory in nature. In Birender Kumar v. Union of India, AIR 1983 Cal, 273 when

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the Telephone of the applicant was wrongly disconnected in spite of his paying his
dues regularly, the Calcutta High Court directed the telephone authorities to restore
the connection within a week.

Conditions:

a) There must be public law duty- Mandamus is used to enforce the

performance of public duties by public authorities. Mandamus is not issued
when the government is under no duty under the law. Mandamus cannot be
issued to enforce administrative direction which do not have the force of
law, hence it is discretionary that the authority accept it or reject it. But
where the administrative instructions are binding mandamus would lie to
enforce them.
b) Petitioner must have a right to enforce the duty- To maintain a petition for
mandamus, the petitioner must show that he has a right to compel the
government to act in a particular manner. In the absence of any such right,
mandamus cannot be issued.
c) There had been a demand and refusal- For the issue of mandamus against an
administrative authority the affected individual must demand justice and
only on refusal he has a right to approach the court. Thus, a writ of
mandamus does not lie in the absence of demand and justice. (State of
Haryana v. Channan Mal AIR 1976 SC 1654).
d) The Writ petition is filed bonafide and is good faith- the courts have held
that the law is well settled that they will not interfere at the instance of a
person who does not approach the court with clean hands an abuse the
process of the court.

Certiorari and Prohibition

‘Certiorari' is a late Latin word, being the passive form of the word ‘certiorari’
meaning to 'inform'.

It may be defined as a judicial order operating by the Supreme Court or

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High Court to any Constitutional, statutory, or non-statutory body or person,
requiring the records of any action to be certified by the court and dealt with
according to law.

Similarly, writ of prohibition is a judicial order issued by the Supreme Court

or a High Court to any constitutional, statutory or non-statutory agency to prevent
these agencies from continuing their proceedings in excess or abuse of their
jurisdiction or in violation of the principle’s of natural justice or in contravention of
the law of the land.

These writs are designed to prevent the excess of powers by public

authorities. Therefore, these writs are corrective in nature. Certiorari and
Prohibition are much in common, both in scope and the rules by which they are
governed. Both are issued on similar grounds. But there is no fundamental
difference between the two. Certiorari is issued to quash a decision already made
and so it is issued at a stage when the proceedings have terminated and the
authority has given a final decision to quash the decision. Prohibition is issued
when the matter has not been disposed of but is being considered by the body
concerned. The function of prohibition is to prohibit the body concerned from
proceeding with the matter further. Thus, prohibition is issued at a stage when the
proceedings are in progress to forbid the authority from continuing the proceedings.

Grounds:

a) when the authority is acting or has acted under an invalid law;

b) jurisdictional error;

c) error apparent on the face of the record;

d) findings of fact not supported by evidence;

e) failure of natural justice.

Supervisory Jurisdiction of High Courts

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 Article 227(1) gives to high courts the power of superintendence over all
courts and tribunals throughout the territories in relation to which it exercises
jurisdiction. A high court may call for returns or make and issue general rules and
prescribe forms for regulating the practice and proceedings of these courts and
tribunals. The court may also prescribe the forms in which officers of such courts
and tribunals shall keep books, entries and accounts. Thus high courts have power
of superintendence not only with respect to judicial but also administrative matters.
The court under article 227 does not sit in appeal and is not concerned with decision
but with the decision-making process.

The scope of Article 227, in some respects, is wider than Article 226. A
High Court may exercise jurisdiction suo moto under article 227 but not so under
Article 226. Also, under Article 226, High court merely quashes the decision of a
tribunal but under Article 227, it can issue directions as to manner in which it
would proceed or it can pass such a decision or direction as the inferior court or
tribunal should have passed. But this distinction between writ jurisdiction and
power of superintendence is narrowing down.

In the landmark case, Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 45
the Supreme Court not only sent the matter of dismissal of employee back to the
tribunal but also imposed punishment on the delinquent employee in proportion to
the gravity of misconduct. However, jurisdiction under Article 226 can be exercised
against administrative and quasi-judicial actions whereas under Article 227, it can be
exercised against judicial and quasi-judicial functions. The wider interpretation of
quasi-judicial bodies would bring into it various administrative bodies as well.

Special Leave Petition

Under Article 136, the Supreme Court, in its discretion, can grant special
leave to appeal to it from any judgment, decree, determination sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of India.
The court's jurisdiction under Article 136 is of an exceptional nature. It is to be
used only in an extraordinary and exceptional situation whenever there is a
miscarriage of justice. Some of the circumstances in which the court interferes

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under article 136 are excess of jurisdiction, failure to exercise jurisdiction, error of
law, violation of principles of natural justice or accepted principles of
jurisprudence, etc. Again, in the matter of findings of fact the court interferes only
in special circumstances, e.g., complete lack of evidence.

Private Law Remedies

Injunction

An injunction is a prohibitive order issued by a court, at the suit of a party

complainant, directed to a party defendant in the action, or to a party made a
defendant for that purpose, forbidding the latter to do some act, or to permit his
servants or agents to do some act, which he is threatening or attempting to commit,
or restraining him in the continuance thereof, such act being unjust and inequitable,
injurious to the plaintiff, and not such as can be adequately redressed by an action
fit law.

The law of injunction has been provided for by the Specific Relief Act,
1963 (hereinafter, the Act), and is also regulated by the Code of Civil Procedure,
1908 in India.

There are two types of injunctions:

 Temporary Injunction and

 Perpetual/PermanentInjunction.
 Injunction will not be granted:
a) To restrain a person from instituting or prosecuting any judicial proceedings.

b) To restrain a person from petitioning to any legislative body

c) To prevent breach of a contract which cannot be specifically enforced.

Declaration

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 It may be defined as a judicial remedy which conclusively determines the
rights and obligations of public and private persons and authorities without the
addition of any coercive or directory decree. It is a discretionary remedy and may
be refused if it would be infructuous, or if an adequate alternative exists or on other
equitable consideration.

Conditions:

a) The person must be entitled to legal character or to a right to any property.

b) There must be some danger or detriment to such right or character.

c) Plaintiff must seek further relief if he is entitled to it.

Suit for damages

Whenever any person has been wronged by the action of an administrator,

he can file a suit for damages against such authority. Such a suit is filed in the civil
court in the first instance and its procedure is regulated by Civil Procedure Code,
1908. The requirement of two months’ notice is mandatory under Section 80 of
CPC, unless waived by court under special circumstances. The principles governing
the calculation of quantum of damages are the same as that of private individuals.

Liability of Government

Introduction

In England, the Government was never considered as an ‘honest man.’ It is

fundamental to the rule of law that the Crown, like other public authorities, should
bear its fair share of legal liability and be answerable for wrongs done to its
subjects. The immense expansion of governmental activity from the latter part of
the nineteenth century onwards made it intolerable for the Government, in the name

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of the Crown, to enjoy exemption from the ordinary law. English law has always
clung to the theory that the King is subject to law and, accordingly, can commit
breach thereof. As far as 700 years ago, Bracton had observed: “The King is not
under man, but under God and under the law, because it is the law that makes the
King.” Though theoretically there was no difficulty in holding the King liable for
any illegal act, there were practical problems. Rights depend upon remedies and
there was no human agency to enforce law against the King. All the courts in the
country were his courts and he could not be sued in his own courts without his
consent. He could be plaintiff but never be made defendant. No writ could be
issued nor could any order be enforced against him. As ‘the King can do no wrong’,
whenever the administration was badly conducted, it was not the King who was at
fault but his Ministers, who must have given him faulty advice. But after the Crown
Proceedings Act, 1947, the Crown can now be placed in the position of an ordinary
litigant.
In India, history has traced different path. The maxim ‘the King can do no
wrong’ has never been accepted in India. The Union and the States are legal
persons and they can be held liable for breach of contract and in tort. They can file
suits and suits can be filed against them.

CONTRACTUAL LIABILITY

Constitutional Provisions

Contractual liability of the Union of India and States is recognized by the

Constitution itself. Article 298 expressly provides that the executive power of the
Union and of each State shall extend to the carrying on of any trade or business and
the acquisition, holding and disposal of property and the making of contracts for
any purpose. Article 299(1) prescribes the mode or manner of execution of such
contracts. It reads:
‘All contracts made in the exercise of the executive power of the Union or
of a State shall be expressed to be made by the President, or by the Governor of the
State, as the case may be, and all such contracts and all assurances of property made
in the exercise of that power shall be executed on behalf of the President or the

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Governor by such persons and in such manner as he may direct or authorize.’

Requirements

Reading the aforesaid provision, it becomes clear that Article 299 lays down the
following conditions and requirements which must be fulfilled in contracts made by
or with the Union or a State:
1. Every contract must be expressed to be made by the President or
the Governor (as the case may be);
2. Every contract must be executed by a person authorized by the
President or the Governor (as the case may be); and
3. Every contract must be expressed in the name of President or the
Governor (as the case may be).

Written Contract

A contract to be valid under Article 299(1), must be in writing. The words

‘expressed to be made’ and ‘executed’ in this article clearly go to show that the
must be a formal written contract executed by a duly authorized person.
Consequently, if there is an oral contract, the same is not binding on the
Government. This is not a mere formality but a substantial requirement of law and
must be fulfilled. It, however, does not mean that there must be a formal agreement
properly signed by a duly authorized officer of the Government and the second
party. The words 'expressed' and ‘executed’ have not been literally and technically
construed.

Execution by authorized person

The second requirement is that such a contract can be entered into on behalf
of the Government by a person authorized for that purpose by the President or the
Governor as the case may be. If it is signed by an officer who is not authorized by
the President or Governor, the said contract is not binding on the Government and
cannot be enforced against it.

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 In Union of India v. N.K. (P) Ltd., the Director was authorized to enter into
a contract on behalf of the President. The contract was entered into by the
Secretary, Railway Board. The Supreme Court held that the contract was entered
into by an officer not authorized for the said purpose and it was not a valid and
binding contract. Expression in the name of President (Governor)

The last requirement is that such a contract must be expressed in the name
of the President or the Governor, as the case may be. Thus, even though such a
contract is made by an officer authorized by the Government in this behalf, it is still
not enforceable against the Government if it is not expressed to be made on behalf
of the President or the Governor.

In Bhikraj Jaipuria, the contracts entered into by the Divisional

Superintendent were not expressed to be made on behalf of the Governor-General.
Hence, the Court held that they
we’re not enforceable even though they were entered into by an authorized person.

Non-compliance: Effect

The provisions of Article 299(1) are mandatory and not directory and they
must be complied with. They are not inserted merely for the sake of form, but to
protect the Government against unauthorized contracts. If, a contract is
unauthorized or in excess of authority, the Government must be protected from
being saddled with liability to avoid public funds being wasted. Therefore, if any of
the aforesaid conditions is not complied with, the contract is not in accordance with
law and the same is not enforceable by or against the Government.

Formerly, the view taken by the Supreme Court was that in case of non-
compliance with the provisions of Article 299(1), a suit could not be filed against
the Government as the contract was not enforceable, but the Government could

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accept the liability by ratifying it. But in Mulamchand v. State of M.P, the Supreme
Court held that if the contract was not in accordance with the constitutional
provisions, in the eye of the law, there was no contract at all and the question of
ratification did not arise. Therefore, even the provisions of S. 230(3) of the Indian
Contract Act, 1872 would not apply to such a contract and it could not be enforced
against the government officer in his personal capacity.

Valid contract: Effect

If the provisions of Article 299(1) are complied with, the contract is valid
and it can be enforced by or against the Government and the same is binding on the
parties thereto. Once a legal and valid contract is entered into between the parties,
i.e. Government each a private party, the relations between the contracting parties
are no longer governed by the provisions of the Constitution but by the terms and
conditions of the contract. Article 299(2) provides that neither the President nor the
Governor shall be personally liable in respect of any contract executed for the
purpose of the Constitution or for the purpose of any enactment relating to the
Government of India. It also grants immunity in favour of a person making or
executing any such contract on behalf of the President or the Governor from
personal liability.

Quasi-contractual Liability

The provisions of Article 299(1) of the Constitution [Section 175(3) of the

Government of India Act, 1935] are mandatory and if they are not complied with,
the contract is not enforceable in a court of law at the instance of any of the
contracting parties. In these circumstances, with a view to protecting innocent
persons, courts have applied the provisions of Section 70 of the Indian Contract
Act, 1872 and held the Government liable to compensate the other contracting party
on the basis of quasi-contractual liability. What Section 70 provides is that if the
goods delivered are accepted or the work done is voluntarily enjoyed, then the
liability to pay compensation for the enjoyment of the said goods or the
acceptance of the said work arises. Thus, where a claim for compensation is
made by one person against another under Section 70, it is not on the basis of any

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subsisting contract between the parties, but on the basis of the fact that something
was done by one party for the other and the said work so done has been voluntarily
accepted by the other party. Thus, Section 70 of the Contract Act prevents ‘unjust
enrichment.’ Before Section 70 of the Contract Act is invoked, the following
conditions must be fulfilled:

• A person must have lawfully done something for another person or deliver
something to him;

• He must not have intended to do such act gratuitously; and

• The other person must have accepted the act or enjoyed the benefit.

If these three conditions are fulfilled the section enjoins on the person receiving
benefit to pay compensation to the other party.

Doctrine of Unjust Enrichment

The Doctrine of ‘unjust enrichment’ is an equitable principle and prevents a

person from enriching at the cost of another. The expression 'unjust enrichment' is
not defined either in the Constitution or in any other statute. Stated simply, 'unjust
enrichment' means retention of a benefit by a person that is unjust or inequitable.
‘Unjust enrichment’ occurs when a person retains money or benefits which in
justice, equity and good conscience, belong to someone else.
The doctrine of unjust enrichment is ‘just and salutary’ in nature. It is based
on the principle that no person can get benefit when he has not suffered a loss. The
juristic basis of the obligation is not founded upon any contract or tort but upon a
third category of law, namely quasi- contract or the doctrine of restitution.

In Quasi-contractual Liability:

The provisions of Article 299(1) of the Constitution [Section 175(3) of the

Government of India Act, 1935] are mandatory and if they are not complied with,
the contract is not enforceable in a court of law at the instance of any of the
contracting parties.

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 In these circumstances, with a view to protecting innocent persons, courts
have applied for provisions of Section 70 of the Indian Contract Act, 1872 and held
the Government liable to compensate the other contracting party on the basis of
quasi-contractual liability. What Section 70 provides is that if the goods delivered
are accepted or the work done is voluntarily enjoyed, then the liability to pay
compensation for the enjoyment of the said goods or the acceptance of the said
work arises. Thus, where a claim for compensation is made by one person against
another under Section 70, it is not on the basis of any subsisting contract between
the parties, but on the basis of the fact that something was done by one party for the
other and the said work so done has been voluntarily accepted by the other party.
Thus, Section 70 of the Contract Act prevents ‘unjust enrichment.’ Before Section
70 of the Contract Act is invoked, the following conditions must be fulfilled:
• A person must have lawfully done something for another
person or deliver something to him;
• He must not have intended to do such act gratuitously; and

• The other person must have accepted the act or enjoyed the benefit.

If these three conditions are fulfilled the section enjoins on the person
receiving benefit to pay compensation to the other party.

Doctrine of Unjust Enrichment

The Doctrine of ‘unjust enrichment’ is an equitable principle and prevents a

person from enriching at the cost of another. The expression 'unjust enrichment' is
not defined either in the Constitution or in any other statute. Stated simply, 'unjust
enrichment' means retention of a benefit by a person that is unjust or inequitable.
‘Unjust enrichment’ occurs when a person retains money or benefits which in
justice, equity and good conscience, belong to someone else.
The doctrine of unjust enrichment is ‘just and salutary’ in nature. It is based
on the principle that no person can get benefit when he has not suffered a loss. The
juristic basis of the obligation is not founded upon any contract or tort but upon a
third category of law, namely quasi- contract or the doctrine of restitution.

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 In Orient Paper Mills Ltd. v. State of Orissa, the Supreme Court did not
grant refund to a dealer since he had already passed on the burden to the purchaser.
It was observed that it

was open to the Legislature to make a provision that an amount of illegal tax paid
by the persons could be claimed only by them and not by the dealer and such
restriction on the right of the dealer to obtain refund could lawfully be imposed in
the interests of general public.

Grant of State largess

The modern State is no more a ‘Police State.’ It has become ‘Welfare State’
and in that role, it has undertaken several commercial activities. A private
individual, no doubt, has an absolute right whether to enter into contract with the
State. The State has equally a right to enter or not to enter an agreement with any
person. The said right, however, is not absolute, unlimited or unqualified
particularly in granting State largess.

Contract of Service

A contract of service between State and a private person is not governed by

Article 299 of the Constitution. At the initial stage of appointment in Government
service, no doubt, there is a contract between the parties. There is an offer and
acceptance of employment. But once a person is appointed, he/she acquires a status
and the relationship no more governs by a contract, but by an appropriate
Legislation or Rules under proviso to Article 309 of the Constitution.
In the leading case of Roshan Lal Tandon v. Union of India, the
Constitution Bench of the Supreme Court stated: “It is true that Article 311 imposes
constitutional restrictions upon the power of removal granted to the President and
the Governor under Article 310. But it is obvious that the relationship between the
Government and its servant is not like an ordinary contract of service between a
master and servant. The legal relationship is something entirely different,
something in the nature of status. It is much more than a purely contractual
relationship voluntarily entered into between the parties. The duties of status are
fixed by the law and in the enforcement of these duties’ society has an interest.
In the language of jurisprudence status is a condition of membership of a

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group of which powers and duties are exclusively determined by law and not by
agreement between the parties concerned.”

Unconscionable Contracts

If a contract between an individual and a Government contains a clause which is

arbitrary, unreasonable, unconscionable or opposed to public policy. It cannot be
enforced by a court of law. Thus, a condition in a service contract that service of a
permanent employee can be terminated by paying three months’ salary cannot be
enforced. Similarly, a provision in a contract of service empowering the employer
to terminate services of an Air Hostess on her first pregnancy must be held to be
extremely arbitrary, unreasonable and abhorrent to all notions of civilized society.
Again, en messe termination of all Government Counsel without assigning any
reason is violative of Article 14 of the Constitution even if the action is in
accordance with a term of the contract. On the same principle, all allotments made
in favour of several persons granting licence to run petrol pumps cannot be
cancelled. Even in contractual matters, the Government cannot act
unreasonably.

Statutory Contracts

Article 299 of the Constitution applies to a contract made by the

Government in exercise of executive powers and not in exercise of statutory
powers. Thus, there is a distinction between contracts entered into between
Government and a private party in exercise of ‘executive powers’ and in exercise of
‘statutory powers’ of the State. The rights and liabilities of the parties in a contract
entered into between Government and an individual in exercise of the executive
powers of the State are governed by Article 299 of the Constitution but the rights
and liabilities of the parties in a contract government by a statutory provisions are
governed by the relevant statute under which such contract is entered into. Article
299 of the Constitution has no application to such contracts.

Liability of State in Tort

Introduction

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 In England, the Government was never considered as an ‘honest man.’ It is
fundamental to the rule of law that the Crown, like other public authorities, should
bear its fair share of legal liability and be answerable for wrongs done to its
subjects. The immense expansion of governmental activity from the latter part of
the nineteenth century onwards made it intolerable for the Government, in the name
of the Crown, to enjoy exemption from the ordinary law. English law has always
clung to the theory that the King is subject to law and, accordingly, can commit
breach thereof. As far as 700 years ago, Bracton had observed: “The King is not
under man, but under God and under the law, because it is the law that makes the
King.”
Though theoretically there was no difficulty in holding the King liable for
any illegal act, there were practical problems. Rights depend upon remedies and
there was no human agency to enforce law against the King. All the courts in the
country were his courts and he could not be sued in his own courts without his
consent. He could be plaintiff but never be made defendant. No writ could be issued
nor could any order be enforced against him. As ‘the King can do no wrong’,
whenever the administration was badly conducted, it was not the King who was at
fault but his Ministers, who must have given him faulty advice. But after the Crown
Proceedings Act, 1947, the Crown can now be placed in the position of an ordinary
litigant.
In India, history has traced different path. The maxim ‘the King can do no
wrong’ has never been accepted in India. The Union and the States are legal
persons and they can be held liable for breach of contract and in tort. They can file
suits and suits can be filed against them.

Doctrine of vicarious Liability

Since the State is a legal entity and not a living personality, it has to act
through human agency, i.e. through its servants. When we discuss the tortuous
liability of the State, it is really the liability of the State for the tortious acts of its
servants that has to be considered. In other words, it refers to when the State can be
held vicariously liable for the wrongs committed by its servants or employees.
Vicarious liability refers to a situation where one person is held liable for act or

226
omission of another person. Thus, the master may be held liable for the torts
committed by his servant in the course of employment.

The doctrine of vicarious liability is based on three principles

• Respondeat superior (Let the principal be liable); and

• Qui facit per alium facit per se (He who does an act through another does it
himself)

. Socialisation of Compensation
There is no reason why this doctrine should not be applied to the Crown in
respect of torts committed by its servants. In fact, if the Crown is not held
vicariously liable for such torts, the aggrieved party, even though it had sustained a
legal injury, would be without any effective remedy, inasmuch as the government
servant may not have sufficient means to satisfy the judgment and decree passed
against him.
Constitutional Provisions

Under Article 294(b) of the Constitution, the liability of the Union

Government or a State Government may arise ‘out of any contract or otherwise.’
The word 'otherwise' suggests that the said liability may arise in respect of tortuous
acts also. Under Article 300(1), the extent of such liability is fixed. It provides that
the liability of the Union of India or of a State Government will be the same as that
of the Dominion of India and the Provinces before the commencement of the
Constitution (if this Constitution had not been enacted).
In State of Rajasthan v. Vidhyawati, a jeep was owned and maintained by
the State of Rajasthan for the official use of the Collector of a district. Once the
driver of the jeep was bringing it back from the workshop, after repairs. By his rash
and negligent driving of the jeep a pedestrian was knocked down. He died and his
widow sued the driver and the State for damages. A Constitution Bench of the
Supreme Court held the State vicariously liable for the rash and negligent act of the
driver.

The court after referring to the P & O Steam Navigation Co. did not go into
the wider question as to whether the act was a sovereign act or not. But it held that

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the rule of immunity based on the English law had no validity in India.
The Court, in subsequent cases, decided to look into the matter of whether
the act was sovereign or not. The principle which emerges is that if the function
involved is a ‘sovereign function’, the State cannot be held liable in tort, but if it is
a ‘non-sovereign function’, the State will be held liable. But the difficulty lies in
formulating a definite test or criterion to decide to which category the act belongs.
In fact, it is very difficult to draw a distinction between the two. ‘The watertight
compartmentalization of the State's functions into sovereign and non-sovereign or
governmental and non-governmental is unsound and highly reminiscent of the
laissez faire era.’
The test whether the act in question could have been performed only by the
government or also by a private individual is also not helpful in deciding the issue.
In a welfare State, the governmental functions have increased and today, not all the
functions performed by the Government are sovereign functions; e.g. commercial
activities like the running of the Railways.
It is also said that if the act in question is statutory, it may be regarded as a
sovereign function, but it is a non-sovereign function if it is non-statutory. But this
test is equally defective. An activity may be regarded as sovereign even though it
has no statutory basis (power to enter into a treaty with a foreign country) and
conversely, it may be regarded as non-sovereign even though it has a statutory basis
(running of Railways).
Moreover, sometimes a particular act may be held to be a sovereign
function by one court but non-sovereign by another. For example, running of the
Railways was held to be a sovereign function by the High Court of Bombay, but
non-sovereign by the High Court of Calcutta and this may lead to further
uncertainty in law.
Further, the traditional doctrine of sovereign immunity has no relevance in
the modern age when the concept of sovereignty itself has undergone drastic
change. The old and archaic concept of sovereignty no longer survives. Sovereignty
now vests in the people. Hence, even such actions of the Government which are
solely concerned with relations between two independent States are now amenable
to scrutiny by courts. Sometimes the distinction between sovereign and non-
sovereign functions is categorized as regal and non-regal functions. The former is
confined to legislative, executive and judicial power whereas the latter can be

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characterized as analogous to private company. In the former, the Government is
not liable but, in the latter, it is liable.

Gain, the concept of public interest has also undergone change. No legal or
political system today can place the State above law and can deprive its citizens of
life, liberty or property by negligent acts of its officers without providing any
remedy. Even if the governmental functions can be classified into one or the other
category, the principle is unsatisfactory from yet another viewpoint. Generally, in a
civil action in tort, the principal idea is to compensate the aggrieved person and not
to penalize the wrongdoer or his master. And if in compensating the aggrieved
party, the wrongdoer or his master has to pay damages, the resultant burden on the
latter is merely incidental and not by way of penalty or punishment. It is, therefore,
absurd and inhumane to hold that the Government would not be liable if a military
truck supplying meal to military personnel struck a citizen, but it would be liable if
such an accident occurred when the truck carried coal to an army headquarters.
In Challah Ramakonda Reddy v. State of A.P, It was held that plea of
sovereignty was not applicable, where there was a violation of Fundamental Rights
of the Citizens.

In Neela bhathi Behra v. State of orissa, the court held that a claim in public
law for compensation for violation of Human rights and Fundamental freedoms, the
protection remedy for enforcement and protection of such a right, is distinct from
and in addition to the remedy in private law damages for torts. The court expressly
held that Principle of sovereign immunity does not apply to the public law remedies
under Article 32 and 226 for the enforcement of Fundamental Rights.
The distinction between public and private law and the remedies under the
two has been emphasised in Common Cause, A registered society v. UOI, It was
held that “where public functionaries are involved and the matter relates to the
violation of Fundamental rights or the enforcement of public duties, the remedy
would still be available under the public law notwithstanding that a suit could be
filed for damages under private law.”

Conclusion
Recent judicial trend is, undoubtedly, in favour of holding the State liable in
respect of tortious acts committed by its servants. In cases of police brutalities,

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wrongful arrest and detention, keeping the under-trial prisoners in jail for long
periods, committing assault or beating up prisoners, etc. the courts have awarded
compensation to the victims or to the heirs and legal representatives of the
deceased. As a matter of fact, the courts have severely criticized the inhuman
attitude adopted by the State officials. The Law Commission also stated: “The old
distinction between sovereign and non- sovereign functions should no longer be
invoked to determine liability of the State.”

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 UNIT V

CORPORATES AND PUBLIC UNDERTAKINGS

CONTROL OF STATUTORY CORPORATIONS AND PUBLIC

UNDERTAKINGS CORRUPTION AND MAL-ADMINISTRATION-

CONTROL MECHANISM OMBUDSMAN IN INDIA (LOK PAL

AND LOKAYUKTA)

CVC-CENTRAL VIGILANCE

COMMISSION

PARLIAMENTARY

COMMITTEES

COMMISSION OF ENQUIRY

Introduction

No statute or court has ever attempted or been asked to define the

expression ‘public corporation.’ It has no regular form and no specialized function.
It is employed wherever it is convenient to confer corporate personality. In
Dartmouth College v. Woodward, John Marshall stated: “A corporation is an
artificial being, invisible, intangible, and existing only in the contemplation of the
law. Being the mere creature of the law, it possesses only those properties which
the Charter of its creation confers on it, either expressly, or as incidental to its very
existence. Those are such as are supposed best calculated to effect the object for
which it was created. Among the most important are immortality, and, if the
expression be allowed, individuality; properties by which a perpetual succession of
many persons are considered the same, and may act as a single individual.”

The main purpose of establishing public corporations is to promote

economic activity through autonomous bodies. With that object, these corporations
have been granted very wide powers and there is no interference by any authority in
exercise of these powers by the corporations. But it is also necessary that some
control over these corporations should be there so that the powers conferred on

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such corporations may not be arbitrarily exercised or abused, and it may not
become the ‘headless fourth organ’ of the Government.

JUDICIAL CONTROL
Since a public corporation is a legal entity it can sue and be sued. It is a
body corporate having perpetual succession and a common seal. Legal proceedings
may be taken by or against a corporation in its corporate name. It is a distinct and
separate entity from the Crown or the Government. Jurisdiction of courts over a
public corporation is the same as it is over any private or public company except
that the powers of the former depend on the provisions of a special statute while
the powers of a company are derived from the terms of its Memorandum of
Association. In some statutes, an express provision is made enabling a corporation
to be sued. But even in the absence of such a provision, a corporation can be sued
like any other person. In fact, when any statute refers to a ‘person’, it includes a
corporation also.

Accordingly, a public corporation is liable for a breach of contract and also

in tort for tortious acts of its servants like any other person. It is liable to pay tax
unless expressly exempted and cannot invoke the exemption granted to the State
under Article 289 of the Constitution of India. It is bound by a statute. It cannot
claim ‘Crown privilege.’
Illustrative Cases:
So far as Indian courts are concerned, they have always adopted a liberal
view and have interfered wherever justice required such interference.
Thus, if an action of a public corporation is illegal, arbitrary or unreasonable, the
court would quash and set it aside. Even in case of grant of largess, jobs,
government contracts, issue of quotas and licences, etc. such corporations and
companies have to act in accordance with law. In cases of acceptance of tenders,
enhancement of rates of taxes and fees, irrational or discriminatory actions cannot
be allowed. In cases of employees of such corporations mill government
companies, though they are not ‘civil servants’ under Part XIV of the Constitution
and, therefore, not entitled to protection under Article 311thereof, the general
principles of service jurisprudence are applied to those employees. Nevertheless, in

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‘unequal fights between giant public sector undertakings and petty employees’ the
courts have safeguarded the interests of employees. Again, the courts have also
criticized the attitude of such corporations whenever they had adopted an attitude of
typical private employer's unconcealed dislike and detestation.

Apart from enforcing statutory regulations and granting relief of declaration

and reinstatement in service to employees of corporations, by invoking the
provisions of equality clause enshrined under Articles 14 and 16 of the Constitution
of India, the regulations framed by such corporations were also declared illegal,
arbitrary and unconstitutional by the courts. In LIC of India v. CERC the Supreme
Court held that in prescribing terms, conditions and rates of premium while issuing
policy, the corporation must act reasonably and fairly. The eligibility conditions
must be just and reasonable.

Powers and duties of courts

It is true that public corporations must have liberty in framing their policies.
If the decisions have been taken bona fide although not strictly in accordance with
the norms laid down by courts, they have been upheld on the principle laid down by
Justice Holmes that they must be allowed some freedom of ‘play in the joints.’ It
cannot, however, be overlooked that such power is not absolute or blanket. If it is
shown that exercise of power is arbitrary, unjust or unfair, an instrumentality of
State cannot contend that its action is in accordance with lilt "letter of the law".
Whatever may be the activity of a corporation, it must be subject to rule of law and
should meet the test of Article 14 of the Constitution. It is not only the power but
the duty of a court of law to see that every action of an instrumentality of the State
is informed by reason, guided by public interest and conforms to the Preamble,
Fundamental Rights and Directive Principles of the Constitution.

Governmental Control
As the judicial control over public corporations is not effective, it needs to be
supplemented by other controls. Government also exercises some control and
supervision over such corporations as the custodian of public interest in different
ways.

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Appointment and removal of members
Generally, the power of appointment and removal of the Chairman and the
members of a public corporation is vested in the Government. This is the key
provision and the most effective means of control over a public corporation. In
some cases, the term of office of a member is also left to be determined by the
Government. In some statutes, a provision is made for removal of a member on the
ground that the member is absent from meetings for a specified period, he is
adjudged a bankrupt or is 'otherwise unsuitable' to continue as a member.

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

Dissolution or supersession of Corporation

A constituent statute may also empower the Government to abolish,
dissolve or supersede a corporation if the corporation exceeds its authority or
abuses its powers. Even if such 'drastic' power is not exercised, it works as a cheque
on the functioning of the corporation.

Cancellation, suspension or modification of Acts

An Act creating a corporation may as well provide that all acts and
proceedings of the corporation may be subject to the control of the Government
which may cancel, suspend or modify as it may think fit any action taken by the
Corporation. Institution of an Act creating a corporation may as well provide that all
acts and proceedings of the corporation may be subject to

234
the control of the Government which may cancel, suspend or modify as it may
think fit any action taken by the Corporation.

Institution of enquiries
A statute may also enable the Government to order enquiries into the
working of the corporation in certain circumstances. Such power may work as a
check against any deviation from the norms of functioning of the corporation.

Directives
An important technique involved to reconcile governmental control with the
autonomy of the undertaking is to authorize the Government to issue directives to
public undertakings on matters of 'policy' without interfering with the matters of
day-to-day administration. A statute may empower the Government to issue such
directives as it may think necessary on questions of policy affecting the manner in
which a corporation may perform its functions. The corporation will give effect to
such directives issued by the Government. A statute may also provide that in case
'any question arises whether a direction relates to matter of policy involving public
interest, the decision of the (Central) Government thereon shall be final.’

It is no doubt true that such directions should relate to questions of policy

and should not be routine administrative instructions in the day-to-day working of
the corporation. But it
is very difficult to draw a dividing line between matters of 'policy' and 'day-to-day'
working of a public corporation and by this method, the Government can exercise
effective control over public corporations. But unfortunately, in practice, the
Government hardly exercises its power to issue policy directives.

Rules and Regulations

Usually a constituent statute creating a corporation contains provisions to
make rules and regulations. The provision empowers the Central Government to
make rules ‘to give effect to the provisions of the Act.’ The other provisions
authorize the corporation 'with the prior approval of the Central Government' to
make regulations 'not inconsistent with the Act and the Rules made thereunder' for
enabling it to discharge its functions under the Act. Thus, even in case of 'filming

235
rules and regulations, the Government is having the upper hand. Regulations
promulgated without previous approval of the Government cannot be said to be
valid. Again, in case of inconsistency
between the rules and the regulations, the rules would prevail and the regulations
will have to give way to the extent of inconsistency with the rules made by the
Central Government.

PARLIAMENTARY CONTROL

Public corporations are created and owned by the State, financed from public
funds and many a time they enjoy full or partial monopoly in the industry, trade or
business concerned. They are expected to exercise their powers in the public
interest. It is, therefore, necessary for Parliament to exercise some degree and mode
of control and supervision over these corporations. The methods adopted to
exercise such control are numerically four.

Statutory provisions
All public corporations are established by or under statutes enacted by
Parliament or State Legislatures. The powers to be exercised by such corporations
can be defined by them. If any corporation exceeds or abuses its powers, Parliament
or the State Legislature can dissolve, supersede or even abolish the said
corporation. Even though this type of control is not frequently employed, it is a
salutary check on the arbitrary exercise of power by the corporation. Parliament
also exercises effective control through technique of ‘laying.’

Through this traditional method, the members of Parliament put questions

relating to the functions performed by public corporations to the Minister
concerned. But this method
has not proved to be very effective because of the authority of public
corporations in their fields.
Accordingly, broad principles subject to which questions relating to these
undertakings
can be asked, have been laid down, namely, questions relating to policy, an act or
omission on the part of a Minister, or a matter of public interest (even though
seemingly pertaining to a matter of day-to-day administration or an individual

236
case), are ordinarily admissible. Questions which clearly relate to day-to-day
administration of the undertakings are normally not admissible. A more significant
and effective method of parliamentary control is debate on the affairs of a public
corporation. Usually, this method is followed when annual accounts and reports
regarding the corporation are placed before Parliament for discussion in accordance
with the provisions of the statute concerned. There is no general obligation on the
part of all corporations to present their budget estimates to Parliament. Estimates
Committee, therefore, recommended that corporations should prepare a
performance and programme statement for the budget year together with the
previous year's statement and it should be made available to Parliament at the time
of the annual budget.

Parliamentary Committees
This is the most effective form of parliamentary control and supervision
over the affairs conducted by public corporations. Parliament is a busy body and it
is not possible for it to go into details about the working of these corporations.
Parliament has, therefore, constituted the Committee on Public Undertakings in
1964. The functions of the Committee are to examine the reports and accounts of
the public undertakings, to examine the reports, if any, of the Comptroller and
Auditor-General on the public corporations, to examine in the context of the
autonomy and efficiency of the public corporations, whether their affairs are being
managed in accordance with sound business principles and prudent commercial
practices.
The recommendations of the Committee are advisory and, therefore, not
binding on the
Government. Yet, by convention, they are regarded as the recommendations by
Parliament itself, and the Government accepts those recommendations; and in case
of non-acceptance of the recommendations of the Committee, the ministry
concerned has to give reasons therefor.

Conclusion
No doubt, parliamentary control over the public corporations is "diffuse and
haphazard", yet it is the duty of Parliament to ensure that if a corporation is
exercising too great a measure of freedom, it should be brought to heel. The whole

237
purpose of establishing an autonomous undertaking is to make it free, in its daily
working from detailed scrutiny by members of Parliament. But since the functions
carried on by these undertakings are of public concern and to be performed in
public interest, Parliament cannot completely absolve itself of its controlling
function. It is, therefore, necessary that leaving the matters relating to day-to-day
administration to the corporations, there must be overall supervision in important
policy matters by Parliament.

CONTROL BY PUBLIC
In the ultimate analysis, public corporations are established for the public and
they are
required to conduct their affairs in the public interest. In the ultimate analysis,
public enterprises are owned by the people and those who run them are accountable
to the people. It is, therefore, necessary that in addition to judicial, parliamentary
and governmental control, these corporations
must take into account public opinion. There are different means of representation
of the 'consumer' or public interest.

Consumer Councils
These are bodies established under the authority of the statute constituting
the corporations concerned with the object of enabling "consumers" to ventilate
their grievances, or make their views known to the corporations. The outstanding
examples of consumer councils are to be found in the electricity and gas industries.
The difficulty about these councils is that the members of the general public have
neither the technical knowledge nor a keen interest in the affair of certain consumer
councils; e.g. Gas or Electricity Consumer Councils. These councils may make
recommendations to their area boards, but there have been very few occasions
when alterations of policy decisions have resulted.

In some cases, Parliament has arranged for members of certain public

corporations to be nominated by local authorities and other bodies interested in the
functions of the particular corporation. Thus, members of Hospital Management
Committees are appointed by the Regional Hospital Board after consultation with

238
local health authorities, executive councils and other officials, as required by the
statute. Sometimes, such consultation is made mandatory. Some statutes also
provide that certain members of a council must possess particular qualifications.

Consumers and Courts

Due to rapid development of Administrative Law and consciousness of
rights by vigilant citizens, there is a clear tendency ort the part of the Consumers to
approach courts for the purpose of ventilating their grievances. More and more
cases are coming before the
courts by consumers in their individual capacity or through some
organization by way of Public Interest Litigation (PIL).

Consumer Protection Act

With a view to provide for better protection of the interests of consumers and
for that purpose to make a provision for the establishment of Consumer Councils
and other authorities for the settlement of consumers disputes and for matters
connected therewith, Parliament enacted the Consumer Protection Act, 1986. The
Act provides for establishment of consumer protection councils, and also sets up
machinery for settlement of consumer disputes.

(CVC) CENTRAL VIGILANCE COMMISSION

A serious problem affecting the Indian Polity is that of corruption in the

administration this is the decision-making process by the administration and gives
rise to all kinds of vices. Incorruptibility is an essential requirement of public
confidence in the administration of government departments. A word made
therefore decide on the subject of law and the machinery to fight administrative
corruption in the case of S. A. Kiri v. Union of India AIR 1985. The supreme court
said that "no employee of a nationalised bank or any other public sector
cooperation should engage himself in collecting donations for any trust or other
organisations from persons with whom he comes into contact in the course of is
employment. Such a practice is likely to lead to harmful results because "in the
world of Commerce quid pro quo and not charity is the rule".

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Any system of government, improvements of the grievance redressal machinery
have always increased the attention of the people. Even in Parliamentary form of
Government, where the rules rule with the consent of the people the need for a
viable grievance redressal machinery cannot be overemphasized actualities of our
times have proved false the assumption that the system of responsible government
provides for a built-in continuous review of the activities of the administration to
stop the growth of party discipline and the millions of partition attitudes in asserting
partition attitudes in asserting in asserting grievances and defending the
performance of the government by ministers tend to create an unfavourable
atmosphere for the proper consideration of individuals Complaints against the
administration this system no matter how so ever ineffective completely says when
inter alia and corruption filter and corruption filter from the top it was against this
factor of that the establishment of the that the establishment of the CVC was
recommended by the committee on prevention of corruption. The Santhanam
committee first of the committee known after the name of its chairman was
appointed in 1962. It recommended establishment of a CVC has the highest
authority at the head of the existing anti-corruption organisation consisting of the
Directorate of gender complaints and redress, the Directorate of vigilance and
Central police organisation. The recommendations of the Santhanam committee
were accepted by the government and dash, the CVC was established on a non-
statutory basis under the resolution dated 11th February 1964.

The committee has recommended that the commission should be concerned with
two major problems facing the administrations, namely

a) prevention of corruption and maintenance of integrity amongst government

servants.
b) ensuring just and fair exercise of Administrative powers vested in various
authorities by statutory rules are by non-statutory executive orders.

The CVC was attached to the ministry of home affairs of the Government of India.
Nevertheless, it is independent in its functioning in the same sense the Union Public
Service Commission UPSC. Is and no order, direction or instruction can be issued
by the Ministry so as to interfere with its independent operation. The central
Vigilance commissioner was appointed by the president for a term of 6 years for till
he attains the age of 65 years whichever is earlier. Therefore the central Vigilance

240
commissioner, like other civil servants, do not hold of face at the pleasure of the
president he can be removed or suspended from the office by the president on the
ground of miss behaviour, but only after the Supreme Court has held an enquiry
into his case and recommended action against him. His responsibilities include the
operation of the Vigilance machinery and coordination of the work of vigilance
officers subordinate to him.

The committee has recommended to measure matters to come within the purview
of the commission, that is, cases of corruption and cases involving
maladministration to stop payment accepted the recommendations of the committee
as regards corruption but not maladministration, because the latter problem was big
enough to require a separate machinery by itself, and if the commission was bird
and with the additional responsibility former administration along with corruption,
it would dilute its effectiveness in dealing with cases of corruption. The Central
Government increases the status and functions of central Vigilance Commission as
follows:

The powers and functions of the Commission

1. The powers and functions were set out in the resolution under which it is
established. Exercise to general control and supervision over the vigilance and anti-
corruption work carried down in various Ministries, departments and public
undertakings. It has been given jurisdiction and power to conduct an enquiry into
transactions in which public servants are suspected of impropriety and corruption
including misconduct, misdemeanour, lack of integrity and malpractices against
civil servants.

2.The commission was assisted by the CBI in its operations. CBI in its operations.
The CVC has taken a serious note of the growing occupation of the CBI with work
other than vigilance. Thus, when the CBI is extensively used for non-corruption
investigation work such as drug trafficking, smuggling and murders it hampers the
work of the CVC.
3.The CVC also advises the Home Ministry on the necessity of departmental
disciplinary action against public servants where prima facie charges of corruption
and misconduct are established.

But how effective this institution has proved in uprooting corruption depends on

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various factors, the most important being the earnestness on the part on the part the
part of the government, citizens and Institutions to clean public life.

4.Whenever complaints are received by the commission's it refers them either to the
CBI or the concerned Ministry department for investigation. These bodies after
investigation have to send their report to the commission for advice. The
commission may drop a complaint at the initial stage itself if it considered as it to
be the vague or if the allegations contained there in a not verifiable. Just during the
year 1976, out of 665 complaints, 492 were dropped by the commission itself and
the remaining 173 were forwarded to the CBI and the concerned Ministries or
departments for investigation. departments for investigation.

The commission does not does investigate the complaint successful. It has to
depend on other organisations for the purpose. However, there is one exception.
The chief technical examinations organisation attached to the commission conducts
technical examination of public works during checking of bills of contractors,
contracts and throws.

5. The commission advises as to the action to be taken in the following cases:

a) Report of Investigation by the CBI involving departmental action or

prosecution in cases either referred to it referred to it by the commissions or
otherwise.

b) Reports of Investigation by the Ministry of department involving disciplinary

action in cases either referred by the commission or otherwise.

c) cases received direct from public sector undertakings and statutory

corporations, etc.

6. The commission has power to required that oral enquiry in any departmental
proceedings should be entrusted to one of the Commissioner for departmental
enquiries. It Overseas the enquiry is conducted by the Commissioner and here the
commission has two major functions:

1. To ensure that enquiries are completed expeditiously, and

2. To tender advised to the disciplinary authorities for taking action on the

reports of the Commissioners.

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7. All chief Vigilance commissioner are required to furnish to the commission for
its assessment a resume of the Vigilance work done in their organisation with
special emphasis on preventive vigilance.

8. The commission suggest changes in the procedure for practice where it appears
that the existing procedure or practice a force scope for corruption or misconduct.
Decommission me also initiate review of Administrative procedure and practice in
so relates to the maintenance of integrity in the administration.

9. The commission discharges miscellaneous functions such as conducting

orientation courses for Vigilance officers and courses in the conduct of
departmental proceedings review of vigilance arrangements in ministries and
departments public undertakings, advise in matters relating to interpretation of law
and procedures governing departmental proceedings, etc.

Over the years, the independence of the CVC has also been seriously
compromised originally the CVC seriously compromised originally the CVC had
been equated with the UPSC and its chairman had a six years term. However, later
on it was reduced to 5 years which was further reduced to 3 years in 1977 with a
provision for 2 years extension at the pleasure of the government. UC Agarwal who
deleted office on 7th July 1987, after a period of 3 years, was not only refused
extension of 2 years but the office remained vacancy for about one year when C G
Somaiah, former home secretary was appointed in 1988 Foster it is discouraging to
note that the CVC has mentioned in its 1982 annual report 41 cases where the
government did not accept its advice of imposing major penalty on erring officials
in various units of the central sector. The commission has suggested premature
retirement has the legitimate handle to be used for weeding out the corrupt among
the public servants in higher positions. The commission in its 1982 report also
suggested that in cases where prosecution cannot be launched due to lack of
evidence and other reasons, corrective and deterrent action should be taken at the
stage of confirmation or the crossing of efficiency. In its 1986 report, the
commission has reacted sharply to the government decision to Limit its roll over
public sector undertakings where the problem of corruption is by no means
negligible.

In its efforts to check corruption in public life and to provide good governance,

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the supreme court commended measures for far-reaching consequences valid
disposing a PIL petition on the CBI v Shukla Jain Hawala. The three judges bench
separated for measure investigating agencies from the control over the executive.
This Agencies are CBI, enforcement Directorate of revenue intelligence department
and the CVC. The Court has shifted CBI under the administrative control
of the CVC. The CVC, until now, was under the home ministry interested with the
task of bringing to book cases of corruption and sunrise wrong doings and
suggesting departmental action. Now the CVC is to be the umbrella agency and
would co-ordinate the work of three other investigating arms. The code for the
directed that the CVC should be made a statutory body and its head is to be selected
by a three men high powered panel consisting of the Prime minister, the Home
minister and the Leader of the opposition.

In order to give effect to the views of the Supreme Court the government issued and
Ordinance on 25th August 1998. However, this measure had diluted the views of
the Supreme Court by putting one view against the other. Therefore, what ought to
have been visualised as a reformative step had begun to be seen as a clever
bureaucratic register.

Main objections against the ordinance related to:

1. Restricting the membership of the CVC to bureaucrats.

2. Making prior permission of the competent authority mandatorily before starting

investigation against government officers above the rank of joint secretary and
high-ranking officers of Nationalised banks and public sector undertakings.

3. Making the secretary personal ex-officio member. Objections were also raised
against Article 21 of the ordinance which had authorised the commission to make
rules but in consultation with the government.

It was when the Supreme Court expressed concern over these aspects of the
ordinance in the hearing relating to its validity that the government decided to
Amend the Ordinance and does on 27th October 1988 the Central Vigilance
Commission Amendment Ordinance was issued. The commission was made a four-
member body and its membership was open to others besides bureaucrats. In the
same manner, the single directive of prior permission was deleted and the

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membership of secretary personnel, Government of India was given a statutory
status. It is too early to comment on the functioning of the reconstituted statutory
CVC but one thing in certain that no Commission can uproot corruption which has
trunk so deep in the body politic. It can only act as a facilitator and proper length in
the absence of a strong political will.

Union of India v. Alok Kumar 2010 SCC, the supreme court held that unless the
rules so require, advice of the CVC, is not binding. The CVC to enable the
disciplinary authority to proceed in accordance with. The system in the absence of
any specific rule, that seeking advice and implementing thereof is mandatory, it
will not be just and proper to presume that there is prejudice
to the officer concerned. even in the cases where action is taken without consulting
the vigilance commission, necessary will not vitiate the order of the removal passed
after enquiry by the departmental authorities.

The Disciplinary proceedings against government servant taken under the

Services Rules, framed by the Government under Art. 309 of the Constitution.
Besides, public servant can also be prosecuted for bribery and corruption in
criminal court. with a view to expedite such trials, The Prevention of Corruption
Act, 1947 (replaced by Prevention of Corruption Act, 1988) (PCA) make certain
provisions. As it is in the interest of public that corruption be eradicated, so also it
is in the public interest that honest public service should be able to discharge the
duties free from false frivolous and malicious accusations.

In Mohammad Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC, the supreme
court has emphasized two significant aspects of sanction for prosecution. First, any
case instituted without a proper sanction must fail as the entire proceeding are
rendered void ab initio. Therefore, the prosecution must prove that valid sanction
has been granted by the sanctioning authority. secondly, the sanctioning authority
must be satisfied that a case for sanction has been made without constituting the
offence. The constituting authority at time of giving sanction must be aware of the
fact constituting the offense and must apply its mind. The grant of sanction is not an
ideal formality. It is a sacrosanct act which affords protection of the government
servants against frivolous prosecution.

All the facts constituting the offence constituting the offence must be placed before

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the sanctioning authority and it should then arrive at the satisfaction. However, the
accused facing prosecution for offences under the Prevention of Corruption Act,
1947 for Prevention of Corruption Act, 1988 cannot claim any immunity on the
ground of want of sanction, if he is ceases to be a public servant on the date on
which the court took cognizance of the said offence. But the position is different
wear Sec. 197 of Code of Criminal Procedure, 1973 has application.

In the case of Centre for Public Interest Litigation v. Union of India, 2005 SCC, it
has been held that protection under Section 197 is available only when the alleged
act done by public servant is reasonably connected with the discharge of his official
duty.

In State of Maharashtra v. R. S. Nayak, AIR 1982, Nayak filed a complaint a

complaint against chief minister and Antualy charging him with offence under
Sections 161 and 185 of Penal Code and Section 5 of the PCA. The Supreme Court
ruled that the complaint was not maintainable without the requisite sanction of the
government under Section 6 of the PCA the court also stated
that the sanction must be given by the Governor in his Individual discretion and not
on the advice of the Ministers. for the interest of democratic government and its
functioning, the Governor must act in such as a case on his own. The court said
when there is to be a prosecution of the Chief Minister, the Governor would, while
determining whether sanction for such prosecution should be granted or not under
Section 6 of the Prevention of Corruption Act, as a matter of propriety necessary
act in his own discretion and not on the advice of the Council of Ministers. This
will advance the cause of justice.

In another case on the same facts as mentioned above the Supreme Court
answer on another important question is a private complaint in respect of offences
committed by a public servant cognizable by the court? The court answered the
question in the affirmative arguing as follows:

In the absence of a statutory provision to the contrary, A locus standi of a

complainant is concept foreign to criminal jurisprudence first of penal statutes are
enacted for the larger good of the society an object of the such statutes is to punish
the offenders in the interest of the society. Therefore, the right to initiate
proceedings cannot be whittled down, circumscribed or method by putting it into a

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 straight-jacket formula of locus standi unknown to criminal jurisprudence, save
and except specific statutory exception.

Under PCA, the state government has power to appoint special judges to try
specified offences against public servants. the special judge has exclusive
jurisdiction to try these offences against public servant. The judge follows the
procedure set out in the Cr.P.C for trial of warrant cases. The underlying idea of
having special judges is to expediate such trials. It was felt that to fight corruption it
was necessary to take corruption cases out of the maze of ordinary criminal cases
handled by Magistrate. a special judge has the status of the sessions judge. such as
Court is one of the original criminal jurisdictions subject to the control of the High
Court. The special judge can take cognizance of the specified offences upon a
complaint or upon a police report or upon his coming to known in some manner of
the offence have been committed.

Antulay's case is important because it is the first formal criminal trial on private
complaint of a public man on charges of corruption, for acts done during his tenure
of his office. There have been in the past many occasions when such charges were
levelled against state ministers. Such cases were treated mostly on an ad hoc basis
without involving any set pattern to deal with such matters. some ministers
resigned their office after adverse remarks were made against them in the court
decisions. In such cases, enquiry officers were appointed under administrative
decisions to assess whether there was any prima facie evidence against the
concerned minister in some cases, formal enquiry Commission under the
Commission of Enquiry Act, were appointed to probe into the charges of corruption
and misuse of power. Even when such a Commission reported that there was prima
facie evidence against the Minister, hardly any follow-up action by way of
prosecution in a criminal court was undertaken. the difficulty in the situation is that
such enquiries are undertaken under the auspicious either of the centre of the
government taking office in the concerned state after the old government quits
office into whose action the enquiry is instituted, and soon the matter of enquiry
gets embroiled into political controversy.

The above case is of the great public importance because an Ex Chief

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Minister is being prosecuted for the first time on a private complaint. but this
cannot serve as a model for the future. It needs great effort, tenacity and resource on
the part of the individual to launch a prosecution of this type, and not many can
mobilize search resources. Nor can the matter of containing corruption and abuse of
power be left solely in the hands of the government for political considerations
come into the picture. No ruling party likes take action against its own members for
corruption and misuse of power. In addition to these two channels, third channel is
also necessary to contain the malady, namely a strong and independent ombudsman
system having Constitutional sanction so that its autonomy is not compromised in
practice. But even such an institution may fail to deliver the goods unless it gets a
strong political backing and support in its efforts. It needs to be emphasized that
corruption and misuse of power by holders of higher officers constitute serious
malady affecting public interest as such factors distort the whole process of policy
and decision-making and a strong mechanism is needed to fight the same.

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 BIBLIOGRAPHY

Referred Books:

1. M.P. Jain and S.N. Jain, Principles of Administrative Law , 38 (Wadhawa, Nagpur, 2017).

2. I.P. Massey, Administrative Law, Lucknow : (Eastern Book Company, 2005)

3. Wade, Administrative Law, 7th Edition, Indian Reprint, Delhi( Universal Publication 2014 )

4. S.P.Sathe, Administrative Law, latest edition

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