4 MARKS

1. DONOUGHMORE COMMITTEE:
 The Committee on Ministers' Powers also known as Donoughmore Committee as it was chaired by
Lord Donoughmore was established in the year 1929 and the Committee, published its report in the
year 1932, was primarily concerning with issues of subordinate law and formal administrative
adjudication.
 The Committee investigated a wide range of topics and offered various recommendations against the
backdrop of Dicey's ideas on parliamentary sovereignty and the Rule of Law.
 This Committee has rejected the well-known maxim "The King can do no wrong" significantly
broadened the scope of administrative law in England.
 This Committee investigated the problems of delegated legislation and the judicial and quasi-judicial
powers exercised by officers appointed by ministers, and to recommend effective steps and suitable
safeguards to ensure the supremacy of the rule of law.
 This Committee specifically criticised the Henry VIII clause and also laid down certain
recommendations to this context.
 The Report of the Committee on Administrative Tribunals and Enquiries was published in 1957.
 The Reports of 1932 and 1957 are crucial in recognising key advances in administrative law over the
twentieth century. The recommendations so laid down gave it a different shape to administrative law
of England as it covered all the gaps that were persisting during that period.
 The Administrative process which subsists in the present scenario was not a sudden creation. Rome
was not built in a day. Likewise, the present day administrative process had gone through the
whirlpool of tremendous changes that was comprised of ups and downs to acquire its present day
form. Undoubtedly, a major league of the credit in this regard is owed to none other than the country
of United Kingdom. In Britain, we can see that there were quite a couple of Committees that had
aided and assisted in the making of the current day administrative process. Of the various committees
appointed in this regard in Britain, two of them occupy the prominent and prior positions. The first
one is the Donoughmore Committee and the second one is the Franks Committee. The Donoughmore
Committee was given such a name as the aforementioned Committee was under the chairmanship of
the Earl of Donoughmore. The trigger for the formation of the Donoughmore Committee was the
book of New Despotism published by Lord Hewart that severely criticized the then procedure and
mechanisms adopted by the Executive during that period.
 New Despotism is the famous book written by Lord Hewart, the disciple of Prod. A. V. Dicey during
the year 1929. In this work, Lord Hewart severely criticized Sub Delegation. During that period, the
Departments rarely published any reports of their proceedings or reasons for their decisions. Thus the
outcome was that the proceedings were secret. Even the interested parties could not learn what
happened or what the Department is likely to do in future when a similar situation further arises. In
short, neither of the parties concerned could believe he or she had justice in their case. This led to the
people losing their faith in the prevailing system. Law was there to protect individual rights in cases
brought before Court. Introduction of statutory schemes which allowed the determination of
outcomes outside of the normal Courts, threated the fundamental concept of Rule of Law. Lord
Hewart also stated that with the introduction of the Tribunals, the routine decision making of the
official was placed beyond judicial oversight except when a dispute arose over how a body
interpreted the law. He also accentuated on the misuse of powers by Executive. Predictably the
result was the setting up of a committee to investigate his various allegations of a „bureaucratic
conspiracy‟.
 The Donoughmore Committee was appointed on 30th October 1929. The aforesaid committee was
comprised of the ablest Parliamentarians, lawyers and civil servants of the day. The team took
evidence from every conceivable source that could possibly assist. As stated earlier, the book New
Despotism was the clarion call for the formation of the Donoughmore Committee. Considering the
same, the team viewed NEW DESPOTISM as a warning against real dangers. It was also intended to
 appease the complaints about democracy. The committee had also covered ministerial powers of
delegated legislation & of judicial or quasi-judicial decisions. Paraphrasing the verbatim, the
Donoughmore Committee was appointed. "to consider the powers exercised by or under the direction
of Donough (or by persons or bodies appointed specially by) Ministers of the Crown by way of
(a) delegated legislation and
(b) judicial or quasi-judicial decision, and to report what safeguards are desirable or necessary to
secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law."

2. RIDGE V. BALDWIN:
 The doctrine of natural justice and the right to a fair hearing is not limited only to executive decisions
made in a quasi-judicial setting
Facts
 A watch committee could exercise its powers under the s.191(4) of the Municipal Corporations Act
1882 to dismiss chief constables on the grounds of negligence or unfitness
 The appellant, a chief constable of a borough police force, was arrested and charged with the
conspiracy to obstruct the course of justice
 He was acquitted of the charge, yet the sentencing judge had commented adversely on his character
and his suitability for the post
 The watch committee then dismissed the appellant from his office by exercising the power conferred
to them by the 1882 Act, without informing him of the charges against him and without giving him
the opportunity to be present his case
 The Court of Appeal held that the principles of natural justice did not apply as the decision was
administrative in nature, and the principles only applied to decisions of a judicial or quasi-judicial
nature
Issue
 Had there been a breach of the doctrine of natural justice in the manner by which the Watch
Committee had dismissed the chief constable?
Held (House of Lords)
 Appeal allowed; There had been a breach of natural justice in this instance, as the appellant should
have been informed of the charges made against him and should have been given the opportunity to
be heard
Lord Reid
 Although there exists no clear definition of the principle of natural justice, it cannot be said for this
reason that ‘therefore it does not exist’: [65]
 There is ‘an unbroken line of authority to the effect that an officer cannot lawfully be dismissed
without first telling him what is alleged against him and hearing his defence of explanation’: [66]
 As such, the power of dismissal under the 1882 Act cannot be lawfully exercised until the appellant
had been properly informed of the charges against him and given the opportunity to make
representations on his own behalf
 Since the decision to dismiss the appellant was made ‘without regard to the principles of natural
justice’, it is therefore void : [80]
 3. RES JUDICATA:
The double jeopardy provision of the Fifth Amendment to the U.S. Constitution protects people from being
put on a second trial after the case has been judged. So the doctrine of res judicata addresses this issue and it
bars any party to retry a judgment once it has been decided.
Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also known as “ rule of
conclusiveness of judgment”. The doctrine of res judicata has been explained in the case of Satyadhyan
Ghosal v. Deorjin Debi. The judgment of the court was delivered by Das Gupta, J. An appeal was made by
landlords who attained a decree for ejectment against the tenants who were Deorajin Debi and her minor
son. However, they have not been yet able to get possession in execution soon after the decree was made. An
application was made by the tenant under Section 28 of the Calcutta Thika Tenancy Act and alleged that they
were the Thika tenants. This application was resisted by the landlords saying they were not Thika Tenants
within the meaning of the Act.
The tenants moved to the High Court of Calcutta under the Civil Procedure Code. The court applied the
principle of res judicata to achieve the finality in litigation. The result came that the original court, as well as
the higher court, can proceed for any future litigation on the basis that the previous decision was correct.
The doctrine of res judicata says –
 That no person should be disputed twice for the same reason.
 It is the State that decides there should be an end to a litigation
 A judicial decision must be accepted as the correct decision.

Res Judicata meaning

Res means “subject matter” and judicata means “adjudged” or decided and together it
means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a court has
already been decided by another court and between the same parties. Hence, the court
will dismiss the case as it has been decided by another court. Res judicata applies to both
civil and criminal legal systems. No suit which has been directly or indirectly tried in a
former suit can be tried again.
Res Judicata example
 ‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the
ground as the area of the land was less than the mentioned on the lease. The
Court found that the area was greater than shown in the lease. The area was
excess and the principles of res judicata will not be applied.
 In a case, ‘A’ new lawsuit was filed in which the defendants requested that the
Court dismiss the lawsuit with a plea of res judicata. She was barred from
bringing a claim of res judicata because her previous claim was dismissed for
fraud. The Court said that the defence of res judicata must be proved by
evidence.

Constructive Res Judicata

The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an artificial form of res
judicata. It provides that if a plea has been taken by a party in a proceeding between him and the defendant
he will not be permitted to take pleas against the same party in the following proceeding with reference to
the same matter. It is opposed to public policies on which the principle of res judicata is based. It would
mean harassment and hardship to the defendant. The rule of constructive res judicata helps in raising the bar.
Hence this rule is known as the rule of constructive res judicata which in reality is an aspect of augmentation
of the general principles of res judicata.
In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-inspector and was dismissed from
the service of D.I.G. he challenged the order of dismissal by filing a writ petition in the High Court. He said
that he did not get a reasonable opportunity of being heard before the passing of the order. However, the
argument was negatived and the petition was dismissed. He again filed a petition on the ground that he was
appointed by the I.G.P. and had no power to dismiss him. The defendant argued that the suit was barred by
constructive res judicata. However, the trial court, the first appellate court as well as the High Court held that
the suit was not barred by the doctrine of res judicata. The Supreme Court held that the suit was barred by
constructive res judicata as the plea was within the knowledge of the plaintiff, M and he could have taken
this argument in his earlier suit.
The doctrine of constructive res judicata has been incorporated in Explanation IV to Section 11 of the Code
of Civil Procedure, 1908. Explanation IV provides that all those matters that ought to have been made a
ground of defence or attached to a suit but were omitted, will also be deemed to have been directly or
substantially in issue in such a suit. If a party fails to raise a reasonable ground of defence or attack during a
suit, then such an issue is presumed to have been decided against the defaulting party.

CONSTRUCTIVE RES JUDICATA As a general matter of fact, the codification of the doctrine of res
judicata is mentioned in section 11 of CPC, 1968 and appears in relation to civil suits. The rule of
constructive res judicata is talked about in the "Explanation IV of section 11 of Civil Procedure Code and in
several matters coming before the court, the court not only has applied this doctrine directly but also have
preferred the application of the rule of constructive res judicata Explanation IV: Any matter which might and
ought to have been made the ground of defence or attack in such former suit shall be deemed to have been a
matter directly and substantially in issue in such suit. It means when any point of issue that could have been
mentioned as a ground of contention or defence in the former suit but if the concerned party has
failed to mention it (in former proceedings), then it must be labelled as heard and adjudged. Illustration.
A files a suit against B and claims that he is entitled to certain lands as an heir of C. The suit is rejected by
the court. A files a subsequent suit against B on grounds of adverse possession. A is barred to file
such a suit according to constructive res judicata because A ought to have taken the ground of adverse
possession in the previous suit.
4. DOCTRINE OF PROPOTIONALITY
What is doctrine of proportionality in administrative law?
Proportionality means that the administrative action should not be more drastic than it ought to be for
obtaining the desired result. This implies that canon should not be used to shoot a sparrow. Thus this
doctrine tries to balance means with ends.
Which case introduced the doctrine of proportionality?
In India the doctrine of proportionality was adopted by the Supreme Court of India in the case of Om
Kumar v. Union of India.
It was in this case that the Supreme Court accepted the application of proportionality doctrine in India.
However, strangely enough the Supreme Court in this case suddenly discovered that Indian courts had ever
since 1950 regularly applied the doctrine of proportionality while dealing with the validity of legislative
actions in relation to legislations infringing the fundamental freedom enumerated in Article 19 (1) of the
Constitution of India.

According to the Supreme Court the Indian Courts had in the past in numerous occasions the opportunity to
consider whether the restrictions were disproportionate to the situation and were not the least restrictive of
the choices. The same is the position with respect to legislations that impinge Article 14 (as discriminatory),
and Article 21 of the Constitution of India. With respect to the application of the doctrine of proportionality
in administrative action in India, the Supreme Court after extensively reviewing the position in England
came to a similar conclusion.

The Supreme Court found that administrative action in India affecting fundamental freedoms (Article 19 and
Article 21) have always been tested on the anvil of proportionality, even though it has not been expressly
stated that the principle that is applied is the proportionality principle. Thus the Court categorically held that
the doctrine of proportionality is applicable to Judicial Review of administrative action that is violative of
Article 19 & Article 21 of the Constitution of India.

With respect to Article 14 of the Constitution of India, Supreme Court concluded that when an
administrative action is challenged as discriminatory the Courts would carry out a Primary Review using the
doctrine of proportionality. However when an administrative action is questioned as arbitrary the principle
of Secondary Review based on Wednesbury principle applies. The Supreme Court also held that punishment
in service law is normally challenged as arbitrary under Article 14 of the Constitution of India, and hence
only Secondary Review based on Wednesbury principle would apply.

This according to the Supreme Court is because in such matters relating to punishments in service law, no
issue of fundamental freedom or of discrimination under Article 14 of Constitution of India applies.
However even after a decade since the decision in Omkumar's case, no further progress has been made. The
law regarding proportionality in India remains at what has been stated in Omkumar's case. The only
advancement could be the vague observation in a few subsequent Judgments that the doctrine of
unreasonableness is giving way to the doctrine of proportionality. [see Indian Airlines Ltd. Vs. Praba D.
Kanan AIR 2007 SC 548; State of U. P. Vs. Sheo Shankar Lal Srivastava (2006) 3 SCC 276 51].
In Union of India v. G. Ganayutham[6], the Supreme Court held that rule of proportionality is fully
applicable in constitutional adjudication where the court has to decide on the reasonableness of a restriction
on the exercise of fundamental rights. However, its application in the field of administrative law is still in an
evolving stage. At the present, the doctrine is not available in administrative law in the sense that the court
cannot go into the question of choice made and priority fixed by the administrator.
It is clear that proportionality implies some notion of equilibrium between interests or goals at a general
level, and that it represents some sense of an acceptable relationship between means and ends. The related
interests need to be established and some weight assigned to them. A judgment could then be made on
whether or not the action of the public body was properly proportionate. The most common formulation is
for a three type analysis[7].
The court considers:
1. Whether the measure was necessary to achieve the desired objective.
2. Whether the measure was suitable for achieving the desired objective.
3. Whether it nonetheless imposed excessive burdens on the individual. The last part of this inquiry is often
termed proportionality stricto sensu.
Doctrine of proportionality is applicable in cases where rights are violated by administrative action and the
courts scrutinize administrative conduct specifically and go to the courts Issue about the accuracy of the
authority’s choices.
The ordinary sense of proportionality is that it should not be more extreme than it should be to achieve
desired results. It means can not use canon to fire a sparrow. This philosophy, in other words, seeks to
balance means with ends.
Irrationality as a ground and legitimate expectation to challenge of any decision was developed by the Court
in Associated Provincial Picture House v. Wednesbury, later came to be known as “Wednesbury test” to
determine ‘irrationality’ of an administrative action decision of the Administrative authority shall be deemed
to be irrational
 if it is beyond the authority of law,
 if it is not based on evidence,
 if it is based on irrelevant consideration,
 if it is so absurd in its violation of logic or established moral standards that no reasonable person may
make such a decision on the facts and circumstances in question.
In other words, it is so ridiculous that no reasonable person would ever believe that it is beyond the
jurisdiction of the government. In practical sense it is the use of the doctrine.
Relevance in Puttaswamy (Privacy) judgment and Aadhar judgement.
Hon’ble Chandrachud J. Supreme Court judge in Puttaswamy (Privacy) judgment, notes that any invasion of
life or personal liberty must meet the three requirements of:
 Legality, i.e. there must be a law in existence
 Legitimate aim/State interest, which he illustrates as including goals like national security, proper
deployment of national resources, and protection of revenue, social welfare; and
 Proportionality of the legitimate aims with the object sought to be achieved. There should be a
rational nexus between the objects and the means adopted to achieve them.
 The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation
processes, as a logical method to assist in discerning the correct balance between the objects of
legislation and the means adopted to achieve them.
  The doctrine of Proportionality is related to the principle of interpretation of statutory provisions
which maintain fairness and justice.
 It is a kind of restriction for the administrative action or legislative enactments from being drastic
when it is utilised for securing desired results so that a sense of proportion is maintained between its
goals together with preserving public interest with least effect on the rights of the individual.
 This criterion was also applied in Aadhar case.

5. Doctrine of Excessive Legislation under Administrative Law

The doctrine of excessive delegation under Administrative Law holds that if a legislative body excessively
delegates its authority to another entity, such delegation can be deemed unconstitutional.
The legislature is required to establish the policy of the law, set forth legal principles and provide
standards for the guidance of the delegated authority in promulgating regulations. Failure to do so may
render the law invalid due to excessive delegation. This issue arises particularly when essential legislative
functions are delegated beyond reasonable bounds.
Nature and Scope of Excessive Delegation
The nature and scope of excessive delegation are grounded in the understanding that Parliament, as a
legislative body, does not inherently possess absolute legislative power; rather, it has been granted such
power by the constitution.
Parliament is obligated to exercise this power itself, as mandated by the Constitution and cannot simply
delegate it to the executive branch. The delegation of essential legislative functions to the executive is
constitutionally impermissible. Essential legislative functions include the determination of legislative policy
and the formulation of rules of conduct.
Once these primary functions are fulfilled by the legislature, it may delegate ancillary and incidental
functions to the executive.
In jurisdictions like Great Britain, concerns over excessive delegation of parliamentary powers are primarily
political in nature, while in the United States (and in India), they are predominantly addressed through
judicial review.
Principles Governing Excessive Delegation
The determination of whether excessive delegation has occurred is guided by three overarching principles:
 Essential Legislative Functions: The legislature cannot delegate its core functions, which include
enacting laws and establishing legislative policies.
 Practical Considerations: Given the complexities of modern conditions, it is impractical for the
legislature to foresee and address every conceivable scenario in detail. Therefore, the legislature may
delegate certain functions provided it sets clear legislative guidelines.
 Lawful Delegation: Delegation to the executive is permissible if done in a lawful manner and such
delegation cannot be deemed excessive solely because the legislature could have provided more
detailed provisions.
Excessive Delegation – Perspective of Indian Courts
The principle of excessive delegation holds paramount importance within the Indian legal framework, as it
safeguards the integrity of due process by underscoring the necessity of delegation while cautioning against
unjustified and excessive transfer of powers to administrative bodies. It is established that legislative bodies
may delegate authority only within the confines of a skeletal structure and defined limits established by the
legislature itself.
In the United States, the delineation of permissible delegations emerged in the 19th century, notably in the
case of Wayman v. Southard, where distinctions were made between “important subjects” and “mere
details.” The courts recognized that while general provisions could be established, the power to fill in the
details could be granted to designated authorities.
In India, the Privy Council, in the case of Queen vs Burah, asserted the plenary legislative authority of the
Indian legislature, rejecting the notion of agency or delegation. However, post-independence, the issue arose
concerning the delegation of substantive law-making powers without a prescribed structure.
In Air India v. Nargesh Meerza and Ors., the court ruled against the unilateral extension of an employee’s
retirement by the Managing Director of Air India, deeming it an unreasonable discretionary power that
contravened constitutional provisions.
6. Sovereign and non-sovereign functions of the state
Sovereign functions of the state can be defined as those functions where the state is not answerable before
the court of law for their performance. These functions are mainly concerned about the defence of the
country, maintenance of the armed forces of the country, and maintenance of peace in the territory. These
functions can only be performed by the state for external sovereignty and that is why they are not amenable
to the jurisdiction of ordinary Civil Courts and are primarily inalienable functions. But apart from this, there
are various sovereign functions of the state which are not primarily inalienable which include taxation,
police functions comprising maintenance of law and order, legislative functions, administration of law and
policies, and grant of pardon.
Post Constitutional view: Case State of Rajasthan v. Vidyawati (1962). A jeep was owned and maintained
by the state of Rajasthan for official use of collector of a district. Once the driver of the jeep was taking it
back from the workshop after repairs by (his) rash and negligent act of driver of the jeep a pedestrian was
knocked down and fatally injured. He died. His widow sued the state for damages. The state claim immunity
on the ground that in similar circumstances the east India Company would not have been liable, as the jeep
was maintained in the exercise of sovereign functions and not as a part of commercial activity of the state
was vicariously liable for the rash and negligent act of the driver and held that the doctrine of sovereign
immunity founded on English law had no validity in India.

Case Kasturil Ial v. State of UP (1965). A certain quantity of gold and silver was seized by police from
Raila Ram on the suspicion that it was stolen property. It was kept in government Malkhana which was in
custody of a Head Constable. The property was misappropriated by the head constable who fled to Pakistan.
Raila Ram was prosecuted but acquitted of charge. A suit for damaged was filed by Raila Ram against the
state for the loss caused to him by the negligence of police authorities following the principle laid down in
steam navigation co. case, the supreme court ruled that the state was not liable as police officers were
exercising sovereign functions.

Case Basavva patil v. State of Mysore (1977). In this case a theft was committed and some ornaments were
stolen from the house of the appellant. Five persons were arrested. The police authorities recovered the
ornaments in the course of investigation. The magistrate asked the police to keep them in police custody
before the disposal of the case. The application for return of goods under Sec. 517 Cr.P.C, 1898 was rejected
by the magistrate on the ground that the goods had not reached the custody of the magistrate. The said order
was confirmed by the High Court.

On appeal, the Supreme Court reversed the decision and ordered the state to pay cash equivalent of the
property to the appellant.
The word otherwise indicates that such liability may arise in respect of tortious acts as well the extent of the
said liability is defined in article 300 (l) which declares that the government of India or of a state may sue or
may be sued in relation to their respective affairs in the like cases as the Dominion of India and
corresponding provinces or Indian states might have sued or been sued.
7. NOTICE UNDER SECTION 80 OF CPC:
Introduction In India, A person can sue the government and its officials on infringement of his right.
Generally, for suing a person, there is no need of giving a notice prior to suit. But According to section 80 of
Civil Procedure Code (CPC), 1908, it is mandatory to give a notice before filling a case against government
or public officer to claim relief from mishaps caused by the government or public officer in its official
capacity. Section 80 of CPC mandates that only after the expiration of two months of sending notice to the
government or public official, one can sue it. The duration of two months provides time to the official for
responding to the notice served to it. Thus, this section is an attempt by the law makers to settle the matters
in amicable and timely manner.
SECTION 80 OF CIVIL PROCEDURE CODE (CPC), 1908
The serving of notice under Section 80 of the CPC before suing the government or public officer is
mandatory and describes two types of cases:
(i) Suit against the government and
(ii) Suit against public officers in respect of acts done or purporting to be done by such public
officers in their official capacity.
This section is explicit and mandatory and admits of no exceptions. The language of this section is
imperative and absolutely debars a court from entertaining a suit instituted without compliance with its
provisions. If the provisions of the section are not complied with, the plaint must be rejected under O. 7, R.
11(d) of CPC. So the notice under Section 80(1) of CPC, 1908 is the first step in the ligation against
government or public officer.
Section 80(2) of CPC, 1908 provides exception to the sub-section
(1), It exempt the court to entertain a suit dealing with urgent or immediate relief against the government on
reasonable opportunity of show cause that the matter needs immediate attention. If on hearing the court is
unsatisfied with the ground that urgent or immediate relief need be granted in the suit, it should return the
plaint for the later presentation after satisfying the compliance needed in sub-section (1).
Section 80(3) of CPC, 1908 deals with the basic requirement of notice. If those requirements are satisfied,
then the suit cannot be set aside merely on the ground of any error or defect in the notice. Those basic
requirements of notice are:
a.)The name, description, and the residence of the plaintiff in such vivid way that it clearly allows to
identify the person serving the notice.
b.) Such notice had been delivered or left at the office of the appropriate authority specified in subsection (1)
c.)The cause of action and the relief claimed by the plaintiff had been substantially indicated.
Sec. 80 CPC is mandatory- Provisions u/s. 80 CPC are mandatory and failure to serve two months prior
notice will entail the dismissal of the suit. (B.R. Sinha vs. State of M.P., AIR 1969 SC 1256 )
Death of plaintiff after issue of notice u/s. 80 CPC and before institution of suit--- Where notice u/s. 80 CPC
by plaintiff’s father was issued to the Government but before the expiration of next two months and
institution of suit, the plaintiff’s father died and the suit was then filed by the son without giving fresh notice
u/s. 80 CPC, it has been held by the Supreme Court that the notice u/s. 80 CPC already issued is sufficient
and fresh notice is not necessary.(Ghanshyam Dass vs. Dominion of India, AIR 1984 SC 1004)
 8. POST-DECISIONAL HEARING
Meaning of the term Post-Decisional Hearing
Pre-decisional hearing is a hearing managed before making a choice or sanctioning an order. Post-decisional
hearing, as opposed to its counterpart, is a hearing given by the adjudicating authority subsequent to making
a choice or a decision.
As a general rule, a hearing should be afforded before a decision is taken by an authority.
In the leading case law Ridge v. Baldwin which is sometimes referred as the be all and end all of Natural
Justice, a Constable was accused of conspiracy followed by the prosecution by the authorities but in the end
he was held not guilty and was acquitted of blame. While the judge was deciding the matter, certain remarks
were made by the judge against the character of the Constable based on which he was expelled from his
service. The Court of Appeal held that the committee which had expelled the Constable from his job as a
result of the remarks made by the judge against his character, was exercising Administrative and Judicial or
Quasi-Judicial power and therefore the Principles of Natural Justice did not fit here. Soon, this decision was
reversed by the House of Lords by a 4:1 majority and the order of dismissal was therefore, not upheld.
The principle of the post-decisional hearing was propounded by the Supreme Court in Maneka Gandhi v.
Union of lndia. For this situation, the Supreme Court set out the rule that if in the interest of the general
public, quick action was fundamental and it is impractical to manage the cost of a hearing before the
decision, it ought to be managed after the decision. The passport of the petitioner who also happened to be a
journalist was seized by the Government of India in light of a legitimate concern for public wellbeing.
The petitioner was not given any chance before making the impugned move. At the point when the
legitimacy of the impoundment request was checked, the Government battled that the use of the audi alteram
partem rule would have gone against the very reason for seizing the passport.
Despite the fact that the Supreme Court dismissed the conflict, it acknowledged the principle of post-
decisional hearing in instances of outstanding nature. lt set out the recommendation that wherein an
emergent circumstance, requiring prompt activity, it is not possible to give prior notice of hearing the
preliminary action should be soon followed by a full remedial hearing.
In Shepherd v. Union of India, a request was issued to amalgamate certain banks with some Nationalized
Banks. Certain representatives of Private Banks were prohibited from working in the Nationalized Banks.
Thus, their service was ended without allowing them a chance to be heard. Dismissing the proposition for
post-amalgamation hearing, the Supreme Court felt that, “there was no reason to think about a post-
decisional hearing.”
9. OMBUDSMAN
Meaning of Ombudsman in Administrative Law
An Ombudsman in administrative law is an independent official or body appointed by the government to
oversee and investigate complaints and grievances against administrative actions and decisions made by
government agencies, departments or public officials.
The primary purpose of an Ombudsman in administrative law is to ensure transparency, fairness,
accountability and adherence to legal and procedural standards within the administrative processes of the
government.
This official is often referred to as a grievance officer. The Ombudsman’s job is to examine the complaints
made by citizens when they believe that a government agency is not doing its job properly. In simple terms,
if the government isn’t doing things right, citizens can report their concerns to this official, who works for
the government but is independent and impartial.
Importance of Ombudsman in Administrative Law
Regarding the importance of the Ombudsman in administrative law, it’s essential to understand that this
official is not a super administrator to whom you can appeal just because you’re not happy with a decision
made by a government official.
 The main role of the Ombudsman is to investigate complaints of mismanagement or unfair
treatment.
 In terms of its usefulness, think of the Ombudsman in administrative law as a guardian of the
government’s actions and a protector of regular people. The Ombudsman looks into all complaints
made by citizens when they believe that the government is using its power improperly, not doing its
job well or being unfair.
 The Ombudsman has extensive authority, including access to government records.
 People who file complaints don’t have to provide evidence; the Ombudsman investigates and can
provide remedies to those who have been wronged.
 The Ombudsman’s role is to make sure complaints are valid and address them appropriately.
 They can even take action on their own if they see a problem and their authority is not limited like
that of a Civil Court.
Origin of Concept of Ombudsman
 The idea of an Ombudsman first started in Sweden over two hundred years ago in 1809.
 As the twentieth century began, other European countries began to take notice of this system.
 For instance, Finland established the Ombudsman institution in 1919,
 Denmark followed suit in 1955 and
 Norway did the same in 1961.
 Many European countries adopted the term “Ombudsman” for this role. However, some countries,
like New Zealand, used the term “Parliamentary commission.”
 In the early 1960s, the British government began to seriously consider creating a body to address
people’s complaints about public administration and to protect against the misuse of power. I
 n 1966, the British government appointed a Parliamentary Commissioner for this purpose.
 By 1973, this Parliamentary Commissioner also took on the role of a Health Commissioner.
Types of Ombudsmen
In 1962, during the “All India Lawyers’ Conference,” a social reformer named M.C. Setalvad proposed the
idea of establishing an Ombudsman system in India to improve how the government functions.
An Ombudsman can be anyone, from an inspector general to a citizen advocate, appointed by the national
legislature. Ombudsmen are also appointed at the state, local and municipal levels.
To handle complaints in a confidential, independent and impartial manner, the government appoints various
Ombudsmen for different domains and issues. There are several types of Ombudsmen:
1. Organisational Ombudsman
2. Classical Ombudsman
3. Advocate Ombudsman
4. Hybrid Ombudsman
5. Legislative Ombudsman
6. Executive Ombudsman
7. Media Ombudsman

10. SUB-DELEGATION
When a statute confers legislative powers on an administrative authority and that authority further delegates
those powers to another subordinate authority or agency, it is called sub-delegation. Thus, what happens in
sub-delegation is that a delegate further delegates. This process of sub-delegation may go through one stage
to another stage. If the enabling Act is called the ‘Parent’ then the delegated and the sub-delegated act is
called the Children.
Illustration
A good illustration of the process of sub-delegation is provided by the Essential Commodities Act, 1955.
Section 3 of the Act confers rule-making power on the Central Government. This can be called as the first
stage of Delegation. Under Section 5, the Central Government is empowered to delegate powers to its
officers, the State Governments and their officers. Frequently under this provision, the powers are delegated
to State Governments.
This may be regarded as the second stage of Delegation. When the power is further sub-delegated by the
State Government to their officers, it may be characterised as the third stage of Delegation.
Objects of Sub-Delegation
The need of sub-delegation is sought to be supported on the basis of the following factors-
 Power of delegation necessarily carries with it the power of further delegation and hence, the
delegate has power to further delegate; and
 Sub-delegation is ancillary to delegated legislation, and objection to such process is likely to subvert
the authority which the legislature delegates to the Executive.
Delegatus Non-Potest Delegare
The legal maxim ‘Delegatus Non-Potest Delegare’ does not lay down a rule of law. It merely states a rule of
construction of a statute. Generally, sub-delegation of legislative power is impermissible, yet it can be
permitted either when such power is expressly conferred under the statute or can be inferred by necessary
implication. This is so because there is a well-established principle that a sub-delegate cannot act beyond the
scope of power delegated to him.
Express Power
There is no difficulty as regards the validity of sub-delegation where the statute itself authorises the
administrative agency to sub-delegate its powers because such a sub-delegation is within the terms of the
statute itself.
Thus in Central Talkies v. Dwarka Prasad, under the U.P. Control of Rent and Eviction Act, 1947, it was
provided that no suit shall be filed for the eviction of a tenant without the permission of either a District
Magistrate or any Officer authorised by him to perform any of his functions under the Act. The Additional
Magistrate to whom the powers were delegated made an order granting permission.
The Supreme Court held the order valid. But in Allingham v. Minister of Agriculture, under the Defence
Regulations, 1939, the Committee was authorised by the Minister of Agriculture “to give such directions
with respect to the cultivation, management or use of land for agricultural purposes as he thinks necessary.”
The committee sub-delegated its power to its Subordinate Officer, who issued a direction, which was
challenged. Holding the direction ultra vires, the Court ruled that the sub-delegation of power by the
committee was not permissible.
Implied Power
The point is not clear as to what would be the position if there is no specific or express provision in the
statute for sub-delegation of power. In Jackson v. Butterworth, it was 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 absent. However, the other view is that although there is no provision enabling Act authorising
sub-delegation of power by the delegate, the same may be inferred by necessary implication.
According to Griffith, “If the statute is so wisely phrased that two or more ‘tiers’ of sub-delegation are
necessary to reduce it to specialised rules on which action can be based, then it may be that the Courts will
imply the power to make the necessary sub-delegated legislation.” In States v. Bareno the enabling Act
empowered the President to make regulations concerning exports and provided that unless otherwise
directed the functions of President should be performed by the Board of Economic Welfare.
The Board sub-delegated the power to its Executive Director who further sub-delegated to his assistant, who
in turn delegated it to some officials. All the sub-delegations were held valid by the Court.

11. Public Corporation

Public Corporation is a hybrid organism having features of both government departments as well as of a
business company and is created through the statute of legislature. It runs the service on behalf of the
government but as an independent legal entity with funds of its own and largely autonomous in
management. It possesses independent corporate personality and is a body corporate having perpetual
succession and a common seal. There is no regular form and no specialised function of a public corporation.
Since public corporation is created by or under statute hence it falls under the definition of “State” and is
subject to WRIT jurisdiction but the employees don’t hold any civil post under the union or state within the
meaning of Part XIV of the Indian Constitution. It is also not a citizen hence excluded to claim fundamental
right.
The public corporation can be divided broadly into four categories:
 firstly, Commercial Corporation: these kind of corporation indulges itself and carries on
commercial and industrial activities for instance State Trading Corporation, Air India, and so on.
 Secondly, Development Corporation, it encourages national progress by undertaking development
work in country for instance Damodar Valley Corporation, National Research Development
Corporation and so on.
 Thirdly, Social Service Corporation these corporations are created to provide certain basic and
essential requirement (for e.g. electricity, transport, etc) to the people in general economically and
efficiently and earning profits isn’t the prime objective for instance Hospital Board, Employees State
insurance Corporation and so on and
 lastly the Financial Corporation these body indulges itself in advancing loans and taking deposit on
some terms which will be agreed upon during the time the best example of this is State Bank of
India, Reserve Bank of India and so on.
The liability of Public corporation can be divided into 3 categories i.e. in case of contract, tort and crimes.
 In case of contract it can enter into contract and has the capacity to sue and be sued and can only do
those acts which are authorized expressly by the statue. Those acts which are not expressly or
impliedly authorized will be considered ultra vires and will be void-ab-initio.
 Whereas in case of tort it will be held liable for acts committed by its servant or say its employees
during the course of employment provided that the act is within the power of Corporation and
actionable if committed by private individual and
 finally in case of crime it may also incur liability for offences committed by its servant and
employees but the punishment in any case cannot be death sentence or life imprisonment and it
cannot also be held liable for an offence which can only be committed by natural person for say
bigamy.
 12. NEW DESPOTISM
It is the famous book written by Lord Hewart, the disciple of Prod. A. V. Dicey during the year 1929. In this
work, Lord Hewart severely criticized Sub Delegation. During that period, the Departments rarely published
any reports of their proceedings or reasons for their decisions. Thus the outcome was that the proceedings
were secret. Even the interested parties could not learn what happened or what the Department is likely to do
in future when a similar situation further arises. In short, neither of the parties concerned could believe he or
she had justice in their case. This led to the people losing their faith in the prevailing system. Law was there
to protect individual rights in cases brought before Court. Introduction of statutory schemes which allowed
the determination of outcomes outside of the normal Courts, threated the fundamental concept of Rule of
Law. Lord Hewart also stated that with the introduction of the Tribunals, the routine decision making of the
official was placed beyond judicial oversight except when a dispute arose over how a body interpreted the
law. He also accentuated on the misuse of powers by Executive. Predictably the result was the setting up of
a committee to investigate his various allegations of a „bureaucratic conspiracy‟.
13. ADVANTAGES OF ADMINISTRATIVE TRIBUNALS
Generally, a tribunal is any ‘person’ or ‘institution’. Authority to judge, adjudicate and determine claims
or disputes whether or not have tribunals n it. Tribunals can be defined as ‘judgement seats’ or ‘court of
justice’ or ‘board or committee’ formed to adjudicate on the claim of a particular kind. Tribunal is not
originally a part of the constitution but they were introduced by the 42nd Amendment Act, 1976.
Administrative tribunals are quasi-judicial authorities that are established under an Act of the Parliament
or of State Regulations which is changed with the duty to discharge, adjudicatory functions. So, they are
bodies other than courts that perform the adjudicatory functions.
By the 42nd Amendment Act, 1976 a new part XIV (14-A) was included in the constitution and this part
is entitled to as ‘Tribunals’ and consists of two articles 323A and 323B. Article 323A empowers for the
establishment of the Administrative Tribunal and following the Articles of the Indian Constitution, the
Parliament has passed Administrative Tribunal Act, 1985.
This Act empowers the Central Government to establish one central ‘Administrative Tribunal’ (CAT)
and the ‘State Administrative Tribunal’. Article 323B deals with the Tribunals of the other matters.
 They offer flexibility when compared to ordinary courts.
 They are cheaper and offer speedy justice.
 The procedure followed by the Tribunals is the simplest and is easy to understand.
 They offer relief to the ordinary courts that are already over-burdened courts with various suits.
 They have their experts in the panel who specialise in a particular area like labour law, wages etc.
 They provide sufficient administrative acts and fair justice to all.
Types
 Central Administrative Tribunal (CAT)
It has the jurisdiction to deal with the service matters about the employees of Central Government,
any Union Territory, Local Government or any other Central Government, corporate-owned or
controlled by the Central Government.
 State Administrative Tribunals (SAT)
These tribunals can be established by the Central Government and the Parliament. Similarly, we see
the State Legislature under Article 323 B for various matters like levy, assessment, collection and
enforcement of any tax matters connected with the land reforms covered under Article 31 A.
 Joint Administrative Tribunals (JAT)
 This can be established on the request of two or more states collectively, which exercise
administrative control over two or more states. For Instance, there are various tribunals such as:
 Armed Force Tribunal (AFT)
 Central Administrative Tribunal (CAT)
 National Green Tribunal (NGT)
 Income Tax Appellate Tribunal (ITAT)
 Securities Appellate Tribunal (SAT)
 Water Dispute Tribunal
Composition of tribunals and the bench
Section 4 defines the tribunal to have the following organs:
 Chairman: There would be a chairman who would be administrating the whole matters.
 Vice-Chairman: This would be the one who would be assisting the chairman.
 Judicial Minister: This would be having the qualifications similar to the judicial officer.
 Technical Expert: This would be looking into the areas related to the respective technical area.
 Administrative Members: This would help in the governance system.
 Every bench must include at least one judicial and administrative member.

14. INJUCTION
An injunction is the type of remedy in which the court provides special orders that compel the other party to
do or abstain from doing some specific act.
Generally, people ask for the monetary compensation(damages) for the injury they have suffered but, in
many cases, the plaintiff asks for the remedy of an Injunction to prevent the occurrence of the harm in the
future.
Meaning and scope of injunctions
An injunction is an order of the court against a person, which ceases him from doing or not doing any
particular act. The court has the discretion to provide injunctive relief or not.
Illustration
News channel named APK news takes the interview of [Link]. Next day, runs news that Mr Kabani and
Mrs Chandali has an affair going on. Mr Kabani doesn’t know about it. The news affects Mr Kabani’s
reputation and he files a case of defamation against the news channel and also demands the injunction i.e.
the order of the court against the news channel asking news channel to stop repeating the news regularly on
their channel. Now the discretion to provide injunction or not is completely based on the court.
And if court passes the order of any person but if that person fails to comply with the court orders then he is
liable for the contempt of court.
Classification of Injunction
Injunctions are classified into two categories:
Based on the time period
(a) Temporary Injunction
(b) Permanent Injunction
Based on the nature of the order
(a) Prohibitory Injunction
(b) Mandatory injunction
(c) The Mareva Injunction
Injunction


 Where a person is in breach of his obligation i.e. where he is doing something which he is
under obligation not to do, the Court may by issue of an order, restrain him from doing it.
Such an order of the Court is known as injunction.
 An injunction is a preventive remedy. It is a judicial process by which one who has invaded
or is threatening to invade the rights of another is restrained from continuing or commencing
such wrongful act.
 Injunction is issued for restraining a person to act contrary to law or in excess of its statutory
powers.
 An injunction can be issued to both administrative and quasi-judicial bodies.
 Injunction is highly useful remedy to prevent a statutory body from doing an ultra vires act,
apart from the cases where it is available against private individuals e.g. to restrain the
commission or torts, or breach of contract or breach of statutory duty. Injunction may be
prohibitory or mandatory.
3.3 Prohibitory Injunction
Prohibitory injunction forbids the defendant to do a wrongful act, which would infringe the right of the
plaintiff.
A prohibitory injunction may be:
(a) Temporary or interlocutory injunction
(b) Perpetual injunction.
3.4 Temporary or Interlocutory Injunction


 Temporary injunctions are such as to continue until a specified time or until the further order
of the court.
 It is granted as an interim measure to preserve status quo until the case is heard and decided.
 Temporary injunction may be granted at any stage of a suit.
 Temporary injunctions are regulated by the Code of Civil Procedure, 1908 and are
provisional in nature. It does not conclude or determine a right.
 A temporary injunction is a mere order. The granting of temporary injunction is a matter of
discretion of the Court.
 The purpose of a temporary injunction is to maintain the status quo and prevent irreparable
damage or preserve the subject matter of the litigation until the trial is over. After the trial, the
Court may issue a permanent injunction or dissolve the temporary injunction.
 It is a provisional remedy granted to temporarily curb activity until the court can make a final
decision after trial.
Court may grant temporary injunction to restrain any such act (as set out below) or make such other order
for the purpose of staying and preventing the wasting, damaging, alienation or sale or removal or disposition
of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit; where it is proved by affidavit or otherwise:
– That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to
the suit, or wrongfully sold in execution of a decree.
– That the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his
creditors.
– That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation
to any property in dispute in the suit.
– It would be necessary for the plaintiff to satisfy the Court that substantial and irreparable harm or injury
would be suffered by him if such temporary injunction (till the disposal of the suit) is not granted and that
such loss or damage or harm cannot be compensated by damages.
3.5 Perpetual Injunction


 A perpetual or permanent injunction is a type of order issued by a Court after a full trial on
the merits of a case has been conducted.
 A permanent injunction order is typically issued for the purpose of requiring a person or
entity to permanently stop acting in a certain manner.
3.6 Temporary Injunction & Perpetual Injunction: Understanding the Key Differences

Points Temporary Injunction Perpetual Injunction

Meaning A temporary injunction is a Court Order A perpetual injunction is a type of orde

prohibiting an action until there has been a trial by a Court after a full trial on the me
or other Court action. case has been conducted.

Nature A temporary injunction is provisional in nature Perpetual injunction is permanent in nat

as it does not conclude or determine a right. determines a right on merits of the suit.

Governing Statue Temporary injunctions also known as Perpetual injunctions are granted under
interlocutory and are granted under the Civil 38 of the Specific Relief Act, 1963.
Procedure Code 1908.

Stage of Granting It is granted before plaintiff establishing his Perpetual injunction can be granted on
case at the trial and continues up to a specified hearing the defendant and upon the m
time. the suit.

Replacement Temporary injunction may be replaced by Perpetual injunction cannot be repla

perpetual injunction on merits of the case. temporary injunction.

3.7 Mandatory Injunction

When to prevent the breach of an obligation it is necessary to compel the performance of certain acts which
the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach
complained of and also to compel performance of the requisite acts. The mandatory injunction may be taken
as a command to do a particular act to restore things to their former condition or to undo, that which has
been done. It prohibits the defendant from continuing with a wrongful act and also imposes duty on him to
do a positive act.
Example: X threatens to publish statements concerning Y which would be punishable under the Indian
Penal Code, 1860. The Court may grant an injunction to restrain the publication, even though it may be
shown not to be injurious to Y.

Requisites for Injunction Application

The court will grant the injunction order when the following conditions are satisfied:
 The applicant (party filing application for injunction) has a prima-facie case, having the potential to
succeed. A prima facie case means that the dispute is genuine and there is a possibility of success in
favour of the applicant.
 The balance of convenience is in favour of the applicant. It means that if the injunction order is not
issued, then there will be more inconvenience to the applicant than the other person against whom
the injunction will be granted.
 The applicant will suffer irreparable loss or damage if the injunction is not granted. Irreparable loss
means that the loss caused to the applicant cannot be measured or compensated in terms of money or
a specific amount.

15. What is The Henry VIII clause

The Henry VIII Clause is an expression referring to executive authority. While delegating its power of law-
making to the executive, the legislature generally does not confer any powers on the executive to amend or
modify the Parent Act. However, if such a clause is inserted in the statute, which vests power in the
executive to amend or modify the original Act, it is referred to as the Henry VIII clause. This clause implies
a naked delegation of essential legislative power to the executive by the legislature. The Statute of Sewers of
1531 contained the original Henry VIII clause. It conferred on the Commissioner of Sewers powers to make
rules which had legislative powers, to impose taxation rates, and to impose penalties for non-compliance.
Later, the Statute of Proclamations of 1539 permitted the King to issue proclamations that had the force of
Act of Parliament. Both of these were passed during the period of Henry VIII.
Attributes of the clause
The Henry VIII Clause is in contrast to the situation wherein the executive is conferred with the power of
modification of a statute already in existence. They can amend the Parent Act to better suit a territory when
the legislation is extended from one area to another. It also does not permit the executive to make rules to
give effect to the Parent Act.
It is important to distinguish the clause from several other instances of excessive delegated legislation
because any clause present in the statute, providing the executive unguided rulemaking powers, is presumed
to be the Henry VIII Clause. For instance, in cases such as West Bengal Electricity Board v Desh Bandhu
Ghosh (1985) and Central Inland Water v Brojo Nath Ganguly (1986), it was misunderstood that the
conferment of arbitrary powers upon the Executive through a regulation makes it a Henry VIII clause.
The clause exists in the form of ‘removal of doubt or difficulties’ clause. The clause can be located in a
plethora of statutes in India, including the Constitution of India.
In the report of the Standing Committee on Justice and Community Safety, there are several reasons that
have been identified and explain the need for and the justification behind viewing the Henry VIII Clause
with suspicion:
1. It was stipulated that the power to amend or repeal any statute is considered to be an essential
legislative function and hence, such delegation is legally unjustified. This is because it propagates a
form of unhealthy democracy and amendments and modifications should only be introduced by way
of Parliamentary debates and discussions.
2. Further, it was identified that the Executive should not be given such unrestricted powers because it
is not elected through the electoral process and is not directly accountable to the public.
3. Apprehension exists because after the enactment of the delegated legislation, the Parliament lacks
authority indirectly modifying that legislation, nor can it decide the duration of commencement of
operation of the legislation. It can only disallow the continued operation. Consequently, by the time
the Parliament issues discontinuance, much harm would’ve already taken place.
4. Moreover, the frequency at which the Executive revokes the Henry VIII Clause is also a matter of
concern.
Due to these reasons, it is opined that the Henry VIII Clause should not be allowed as a tool of excuse in the
hands of the Executive to perform the work of law-making in a sloppy manner, and not be held accountable
for such actions.
16. SPEAKING ORDERS:

Speaking order or reasoned order is considered the third pillar of natural justice. A reasoned decision is
called a reasoned decision because it contains reasons of its own in its support. When the adjudicating body
provides the reason behind their decision, the decision is treated as the reasoned decision.

It is also called the speaking order. In such ways, the order speaks for itself in such a way that it tells a
reasonable story of its own. Speaking orders are essential for judicial review. The party or the parties must
know why and on what grounds an order has been passed against him. This is the new principle of natural
justice that has been recognized in India and the USA, but it is yet to be recognized under English law.

The expression speaking order was first mentioned by Lord Chancellor Earl Cairns. While explaining the
ambit of Writ of certiorari, referred to orders with error on the face of the record and pointed out that the
order with error on its face, is a speaking order.

Speaking order introduce fairness in the Administrative power. it helps in minimizing arbitrariness and
excluding to the extent it can. It maintains the right for reason as what is the reason behind any order, which
is an indispensable part of a sound judicial system. it is the best practice of good administration.
The following may be the effects of non-speaking orders:
1. No accountability and transparency:
When the reasons are not recorded, the reason why the judge came to a certain conclusion will not be
made known. Then, there will be no scope for accountability and transparency. The judge cannot be
held accountable for the wrong decisions taken.
2. Corruption:
When the reasons are not mentioned, there will be scope for corruption. The judges are more prone
to take corrupt decisions as they don't even reason it.
3. Reduce the clarity:
when the reasons are not mentioned, then it will lead to a reduction in the clarity. When reasons are
not mentioned, then people and the executing authority may not know how to execute a decree.
When any kind of question arises, then that can not be solved, while it could have been solved easily,
when the judges have mentioned the reasons why they arrived at such a conclusion.
4. Chances for arbitrariness:
when the reasons are not mentioned, there is huge scope for arbitrariness. The same is held in the
case of Madhya Pradesh Industries Ltd Case[11], where it is held that proper reasoning leads to
clarity, and at the same time, it reduces at some of the other rate arbitrariness.
5. Lead to errors:
When the conclusion is reasoned, then while the judge is reasoning, he will know who he himself
arrived at the conclusion. In case there are any errors when he arrived at the conclusion that would be
rectified if he reasons out the judgment. A judge should be very careful and mindful when giving a
 judgment, because, this judgment will not only have a great impact on the parties themselves but will
have a great impact on future judgments also because they act as precedents in India.
6. No satisfaction of the party against whom the order is passed:
When the reasons are not mentioned in the judgment, the party against whom the judgment is passed
will not know the grounds why the judge sees the case to be against him. When coming to the party
in whose favor the judgment is passed, then, they may not really bother about the content unless they
are aggregated by that. So for the sake of the party against whom the judgment is passed, it is
essential that the grounds or reasons for the judgment be clearly mentioned. The party against whom
the judgment is passed will have a sense of satisfaction when they get to know the reasons why the
judgment is passed against them[12].
7. Interference with the powers of Supervisory court:
When proper reasoning is mentioned, then it will be easy for the supervisory court or the superior
court to keep the tribunal within the bound.[13] If proper reasoning is not mentioned, then, it will
again be a tedious task for the court to look into the whole matter in case of any matters to be
inquired into. But, if proper reasoning is mentioned, this task may be eliminated, if it can be found
out that, on the bare reading of the judgment that the court which delivered the judgment exceeded
its power.

The word administrative discretion denotes two words administrative and discretion. It means discretion
which is used by administration in their [Link] means decision power. In other words the
power to do somethingaccording their mind and wisdom. Every person has discretion regarding
their property he can donate, transfer and sale. It is his discretion if wants that his property should go for
his heredities he can write a will. If he do not want to givehis property to his heredities he can sale it. No one
can interfere in his [Link] discretion is different with administrative discretion. In
individualdiscretion there is no any restriction. But administrative discretion means they havediscretion
within the given [Link] are not free to take the decision as an individual; they can take decision
onlywithin the limits which is provided by legislative.
Even court also exercises
the power of discretion, when they punish to someone. Discretion means choose anoption from the given
options on the basis of reason and argument it must not be based on individual [Link] behind the
Development of Discretionary Powers: -
There are many reasons behind the development of the power of administrativediscretion. Some reasons are
given blow: -
 In present time administration face difficult and different- different problemswhich can not solved by
a single rule
 Most of those problems are new and rise first time, so a general rule can notapply against those
problems because they don’t have sufficient experience.
 It is not possible always anticipate to all problems, but when these problemsrise and cannot be solved
according to circumstances than administrativeauthorities must be solved it.
 Every problem is based on a different circumstance, if we will apply a ruleto all it can be cause of
injustice.
In the case of Susannah Sharp v. Wakefield, Lord Halsbury opined that when something is left to
administrative discretion, it means that it has to be done in accordance with the principles of justice and
reason and not on the basis of the private opinion of the authority concerned.
The grounds on which judicial review can be sought for alleged abuse of administrative discretion are as
follows:
  Administrative authority acts in a domain in which it does not have jurisdiction.
 The authority acts in excess of the jurisdiction given to it by the legislature.
 The authority has attempted to do indirectly what it is not allowed to do directly i.e., the colorable
exercise of power.
 Irrelevant considerations have been taken into account by the authority while arriving at a
conclusion.
 Relevant considerations have not been taken into account by the authority while arriving at a
conclusion.
 The action of the authority is arbitrary.
 The authority has acted in a mala fide manner.
 Non-adherence to the principles of natural justice.
 Unreasonableness.
 The law from which the authority derives its discretion is colorable legislation.
In the case of Pratap Singh v. The State of Punjab, a surgeon’s preparatory leave to retirement was
canceled after being granted and then he was suspended. Finally, he was dismissed. The dismissal was set
aside as his allegation that the actions were mala fide as he did not yield to illegal demands of the CM were
accepted by the Court.
17. Non-application of mind
(i) Acting under dictation: Where the authority exercises its discretionary power under the
instructions or dictation from superior authority it is taken as non-exercise of power by the authority
and its decision or action is bad. In such condition the authority purports to act on its own but in
substance the power is not exercised by it but by the other authority. The authority entrusted with the
powers does not take action on its own judgment and does not apply its mind.
Example: In Commissioner of Police v. Gordhandas Bhanji, the Police Commissioner empowered
to grant license for construction of cinema theatres, granted the license but later cancelled it on the
discretion of the Government. The cancellation order was declared bad as the Police Commissioner
did not apply his mind and acted under the dictation of the Government.
(ii) Self restriction: If the authority imposes restraints on its discretion by announcing rules of
policy to be applied by it rigidly to all cases coming before it for decision, its action or decision will
be bad. The authority entrusted with the discretionary power is required to exercise it after
considering the individual cases and the authority should not imposes fetters on its discretion by
adopting fixed rule of policy to be applied rigidly to all cases coming before it.
(iii) Acting without due care: Non-application of mind to an issue that requires an exercise of
discretion on the part of the authority will render the decision bad in law.

CASE LAWS
1. mohapatra v. st of orrisa
 2. AK KRAIPAK V. UOI
The petition was raised by A.K. Kraipak and some other gazetted officers. As per the Indian Forest Service
(Initial Recruitment) Regulation, 1966 framed under 4(1) of the Indian Forest Service (Recruitment)
Rules made under the Indian Forest Service Act , 1951 , a special selection board was constituted for
selecting the officers in Jammu and Kashmir forest department in the senior and junior scale amongst
officers serving at the forest department of the State of J&K.
The chief conservator of the state’s forest was one of the board members under the selection board so
constituted. At the time of the board’s selection, he was an acting chief commissioner appointed to replace
the conservator of forests against whom an appeal was pending with the state government. Among the
applicants expecting selection by Indian Forest Service (IFS) was the acting chief conservator.
Although the acting chief conservator did not participate in the selection board while his name was
considered, he participated in the discussion when the names of applicants were being considered. He also
participated in selecting the order of preference of the selected candidates in the board’s meeting.
The name of the acting chief conservator appeared at the top of the list, while the names of the other three
conservators, including the officer who superseded the name, were omitted from the list. As per the
Regulation, the list and records were sent by the Ministry of Home Affairs to the Union Public Service
Commission (UPSC) along with its observations and further, the UPSC provided its recommendations for
the post of officer for which the Indian government announced the list.
The conservators whose names were omitted from the list and the other aggrieved officers filed a petition in
the Supreme Court. The aggrieved officers petitioned this court under Article 32 of the Constitution of India
to quash the notification.
Issue of the case
1. Whether the principles of natural justice were violated in the given case?
2. Whether the rules of natural justice apply to the current case’s proceedings, assuming that they are of
administrative nature?
3. Whether Petitioner’s grievance is valid?
Decision of the court
The supreme Court held that the selection board’s decision of appointment was against the principles of
natural justice. This is because there was a genuine bias and the presence of candidates might affect the final
opinion of the board. The court examined the validity of the selection process and held that the selection
board’s authority is administrative in character. The Court also decided that the natural justice principle
extends beyond the judicial function. One cannot limit it to judicial bodies only. It is also applicable to
executive and administrative bodies.
3. Facts of Rudul Sah v State of Bihar Case
1. The case is about a man who was illegally detained for a period exceeding the term of his sentence. The
petitioner, Rudul Sah, had submitted a writ petition in the context of Habeas Corpus (to have a body) that
commands his liberation from jail.
2. Herein, the petitioner was wrongfully detained in jail even after the completion of his period of
imprisonment. Therefore, such detention was declared illegal by the Session Court in June 1968.
3. The petitioner further demanded collateral relief under the constitutional remedies available to the citizens
under the ambit of the Indian Constitution for the violation of Fundamental Rights under Article 32.
4. The petitioner was arrested for murdering his wife. He was acquitted on 3 rd June 1968 by the Sessions
Court of Muzaffarpur, Bihar, after serving the period of his imprisonment. He was liberated from jail on
October 1982, subsequent to serving 14 years sentence.
5. On the writ petition of Habeas Corpus, the petitioner demanded justice from the Court for his illegal
detention.
6. The petitioner had even applied for a medical treatment that the State of Bihar shall sponsor.
7. On 22nd November, the writ petition was presented before the Court while the petitioner was already freed
from prison.
8. In the context of the additional relief applied by the petitioner along with the writ, the Court has served
the state with a show cause notice.
9. On behalf of the state, the jailor had drafted an affidavit and put forward two documents that depict the
following:
a. An order issued by the Additional Session Judge declared that despite the petitioner’s acquittal, the
petitioner must stay behind bars until the State Government of Bihar issued further notice.
b. The petitioner was declared incapable of facing the prosecution while the order of the Session Court
was passed. The medical report of the petitioner, as per the medical test conducted by a civil surgeon,
was deemed normal. The same was submitted to the law department in February 1977 and was
issued in October 1982.
Legal Issues Involved
1. Does the right to compensation for illegal detention come under Article 21 of the Constitution?
2. Whether the citizen of India could put up any defence against the arbitrary action of the state or its
officials?
3. Is the petitioner entitled to monetary relief while considering the scope of Article 32 of the
Constitution in the event of violating Fundamental Rights?
Judgment of Rudul Sah v State of Bihar Case
1. The Court has granted the writ petition stating that the petitioner’s detention in prison for 14 years, even
after passing the order of acquittal, is illegal. Article 32 authorizes the Supreme Court to issue appropriate
orders, directions, and writs required for enforcing any of the rights guaranteed under Part III of the
Constitution.
2. However, Article 21 guarantees that the right to life and liberty shall be lost if the competence of the
Supreme Court shall be confined only to the issuance of the order to release the petitioner from illegal
detention.
3. The right to compensation is a remedy for the unlawful activities of the State instrumentalities that are
undertaking their illegal actions in the name of the public interest and therefore defending themselves by
utilizing the power of the State as a shield to cover up their actions through a veil of sovereign immunity.
4. Although the petitioner was mentally unstable at the time of acquittal, that does not justify his illegal
detention for 14 years since a lunatic also possesses legal rights during his trial. The Court held that the
state’s action of illegal detention is cruel and frivolous, thereby lacking any credible evidence to corroborate.
5. The Court also considered whether or not the petitioner’s claim of compensatory relief shall be granted.
Article 21 of the Constitution enumerates the rights related to life and personal liberty, which shall hold no
meaning if the Court would have limited its remedial power only up to the release of the inmates from the
jail who were unlawfully detained without even considering their rights to compensation in order to do away
with their damages that were the direct result of such illegal detention.
Ratio Decidendi
It is the utmost responsibility of the State to make good on the damage that has been caused to the petitioner
by its officers, thereby infringing the petitioner’s fundamental rights. Therefore, in such a case, the mere
release of the petitioner from illegal detention is not an adequate relief unless he is compensated for the
damage caused due to a prolonged delay of 14 years in his release. Therefore, as a temporary remedy, the
State had to pay Rs. 30,000/- in addition to Rs. 5000/- to the petitioner. However, providing such a relief
does not bar the petitioner from initiating a lawsuit against the state and its officials to procure appropriate
damages

4. It was held in Commissioners of Customs & Excise v Cure & Deeley 1962 that simply because the
administrative body is exercising legislative provisions does not mean the body can escape judicial
control in the exercise of the provisions - and the provisions themselves can be examined to ensure
that the correct legislative procedures have been followed.

5. n R. Radhakrishnan V. Osmania University, where the entire MBA entrance examination was
cancelled by the university because of mass coping, the court held that notice and hearing to all
candidates is not possible in such a situation, which had assumed national proportions. Thus the
court sanctified the exclusion of the rules of natural justice on the ground of administrative
impracticability.

12 Marks
1. JUDICIAL CONTROL OVER EXCESSIVE DELEGATION:

Introduction
Delegated legislation, also known as secondary legislation or subordinate legislation, refers to the granting
of law-making powers by the higher authority (usually the legislature) to a lower authority, such as the
executive or administration. This delegation allows the lower authority to enact specific laws and regulations
under the authority and framework provided by the parent statute.
While the delegation of powers is necessary for efficient governance, it is crucial to have control
mechanisms in place to ensure that these delegated powers are exercised appropriately and within the limits
set by the parent statute and the constitution. The three primary control mechanisms for delegated legislation
are parliamentary control, judicial control, and executive control.
Each of these mechanisms serves as a check and balance to maintain the legality, constitutionality, and
procedural compliance of the laws enacted through delegated legislation. This ensures that the delegated
legislation is in line with the intent of the legislature, respects fundamental rights, and upholds the rule of
law.
‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a person with the power or
empowering him to act on behalf of that person who has given him that power or to act as his agent or
representative. ‘Delegated legislation’ means exercising of legislative power by an agent who is lower in
rank to the Legislature, or who is subordinate to the Legislature.
 o The SC in Hamdard Dawakhana v Union of India (1959) case struck down delegation of
powers on the grounds that it was vague.
 It held that the Centre’s power of specifying diseases and conditions under Drug and Magic
Remedies (Objectionable Advertisements) Act 1954 is ‘uncanalised’, ‘uncontrolled’, and
going beyond the permissible boundaries of valid delegation. Hence, the same was deemed
unconstitutional.
o The Supreme Court in a 1973 ruling held that the concept of delegated legislation has evolved out
of practical necessity and pragmatic needs of a modern welfare State.

o In the Indian Oil Corporation v. Municipal Corporation, Jullundhar, the court determined that any
delegated law shall be compatible with the parent act. Thus it should not violate any legislative
policies of such. To be more specific, the court hinted that a delegate is not expected to have more
legislative authority than any other delegate
Types of Control on Delegated Legislation
 Parliamentary control over delegated legislation involves the responsibility of the Parliament to
ensure that the powers transferred to the executive are exercised appropriately and without abuse of
authority.
 Judicial control over delegated legislation is an essential form of control in most countries. It allows
the courts to review the validity of delegated legislation. Judicial review is justified based on the
constitutional obligation of the courts to uphold the rule of law.
The judiciary ensures that the laws made by Parliament are not inconsistent with the constitution and that
delegated legislation falls within the limits set by both the parent statute and the constitution. Judicial control
is considered effective because courts have the power to invalidate a law if it is found to be ultra vires
(beyond the scope) of the parent statute or the constitution.
 Procedural and executive control refers to the rules and procedures that may be established by the
legislature to govern the exercise of delegated powers by the executive. These controls include pre-
publication and consultation with expert authorities, publication of delegated legislation, and laying
of rules before the legislature.
Judicial Control on Delegated Legislation
When the parent act is ultra vires the constitution: If the parent act itself violates the provisions of the
constitution, it is considered void and unconstitutional. In such cases, any delegation of legislative powers
made under the parent act is also rendered void.
The courts have the authority to strike down both the parent act and the delegated legislation if they are
found to be in violation of constitutional provisions.
CONTROL MECHANISM AND TOOLS USED:
1) Delegated legislation not authorized by the enabling act: Delegated legislation derives its
authority from the enabling act, which sets out the scope and limits of the delegated powers. If the
delegated legislation exceeds the authority granted by the enabling act, it can be invalidated by the
courts.
The courts ensure that the delegated legislation remains within the boundaries established by the
enabling act and does not go beyond the powers conferred upon the delegate.
2) Delegated legislation is ultra vires the constitution: In certain cases, the parent act may be
constitutional, but the delegated legislation made under it may violate the constitution. For example,
if the delegated legislation infringes on fundamental rights or contravenes other constitutional
provisions, it can be struck down by the courts.
 The courts examine the constitutionality of the delegated legislation separately from the parent act
and ensure that it does not exceed the limits imposed by the constitution.
3) Delegated legislation is ultra vires the parent act: The validity of delegated legislation can be
questioned if it is found to be beyond the scope of the powers granted by the parent act. The courts
examine whether the delegated legislation stays within the boundaries set by the parent act. If the
delegated legislation exceeds the authority conferred by the parent act, it can be deemed ultra vires
and invalidated by the courts.
4) Delegated legislation is ultra vires any general law or rule of law: Delegated legislation can be
challenged if it contradicts or renders an existing law unlawful. The courts ensure that delegated
legislation does not make lawful what is otherwise unlawful.
If the delegated legislation is found to be in conflict with established general laws or the principles of
the rule of law, it can be declared ultra vires and struck down by the courts.
5) Unreasonableness: Generally, a statute cannot be challenged on the grounds of unreasonableness.
However, if delegated legislation is considered unreasonable based on the circumstances of a
particular case, it may be invalidated by the courts.
The concept of reasonableness depends on the facts, context, and impact of the legislation, and the
courts have the authority to assess the reasonableness of the delegated legislation in question.
6) Mala fide (bad faith): Challenging delegated legislation on the grounds of bad faith or ulterior
motives is challenging to prove. However, in rare cases where there is strong evidence of bad faith or
improper motives, it can be a basis for invalidating the legislation. Courts may examine the
intentions and actions of the delegatee to determine if there was a malicious or improper purpose
behind the enactment of the delegated legislation.
7) Excessive delegation: Excessive delegation refers to a situation where the delegation of law-making
power goes beyond what is considered reasonable and necessary. While the courts in India rarely
strike down delegated legislation on the grounds of excessive delegation, excessive delegation can be
subject to criticism. It is generally accepted if it is expressly or implicitly provided for in the enabling
act.
8) Sub-delegation: The general rule is that a delegate cannot re-delegate its authority. However, in
some countries with written constitutions, sub-delegation may be permitted if there is a specific
provision allowing for it. In such cases, the validity of an act carried out under sub-delegation can be
questioned if it is found to be ultra vires the enabling act or the constitution.
9) Non-compliance with court orders: If the government fails to comply with a court order regarding
delegated legislation, the court has the power to invalidate that particular act. Courts rely on the
principle of judicial review to ensure that government actions and legislation align with their
judgments and orders. Failure to comply with a court order may result in the delegated legislation
being declared invalid.
10) Non-application of mind: Delegated legislation can be invalidated if it is evident that the delegatee
did not consider the relevant facts and circumstances while exercising their powers. The courts
examine whether the delegatee has applied their mind to the issues at hand and made a reasonable
and informed decision. If it is found that the delegatee did not adequately consider the relevant
factors, the delegated legislation may be invalidated on the grounds of non-application of mind.
These control mechanisms play a crucial role in ensuring that delegated legislation remains within the legal
boundaries, respects the constitution, and upholds the principles of legality and fairness. The courts act as
guardians of the rule of law and exercise their authority to scrutinize and, if necessary, invalidate delegated
legislation that goes beyond its prescribed limits or violates fundamental legal principles.
Cases on Judicial Control over Delegated Legislation
Kruse v. Johnson: In this case, the United Kingdom court established criteria to determine the
reasonableness of by-laws. The court held that by-laws would be considered unreasonable if they were
partial or unequal, manifestly unjust, disclosed bad faith, or involved oppressive interference with the rights
of the people without any justifiable reason. This case highlights the court’s role in reviewing and striking
down by-laws that do not meet these standards of reasonableness.
Delhi Law Act Case: In this case, the power was granted to the Central Government through an act to
repeal pre-existing laws. However, the court held that the exercise of such power was ultra vires, meaning it
went beyond the scope of authority granted by the law. The court’s decision in this case emphasizes its role
in ensuring that the executive branch acts within the limits set by the law and does not exceed its delegated
powers.
Chintaman Rao’s Case (Chintaman Rao v State of Madhya Pradesh): This case dealt with the prohibition
of making bidis (hand-rolled cigarettes) during the agriculture season by a Deputy Commissioner. The court
held that this prohibition was in violation of Article 19(1)(g) of the Indian Constitution, which guarantees
the right to practice any profession, occupation, or trade. The court’s decision showcases its role in
reviewing executive actions and striking them down if they infringe upon fundamental rights enshrined in
the constitution.
Chandran v. R: In this case, the court emphasized that if the power to make by-laws is entrusted to the
legislature, it must be exercised within the limits defined by the legislature. If the by-laws exceed these
limits, they can be struck down. This case underscores the court’s authority to review and invalidate
legislative decisions, including by-laws, if they go beyond the prescribed authority or violate any legal
principles.
These cases demonstrate the judicial control over the executive branch’s actions and decisions. The judiciary
plays a vital role in ensuring that executive actions align with constitutional provisions, statutory limits, and
principles of reasonableness and fairness. By reviewing executive actions and striking down those that are
deemed unconstitutional, unreasonable, or exceeding the delegated authority, the courts act as a check on the
executive branch and protect the rights and interests of the citizens.

Following are the criticism of delegated legislation:

1. Delegated legislation results in overlapping of functioning as the delegated authorities get work to
amend the legislation that is the function of the legislators.
2. It has been a matter of question that if the Legislature control has come down after the arrival of the
delegated legislation.
3. Unelected people cannot make much delegated legislation as it would be against the spirit of
democracy.
4. After getting too much power from the Legislature, the Executive has encroached upon the domain
of legislature by making rules and regulations.
5. The enactment subject that was appointed to less Parliamentary scrutiny than essential enactment.
Parliament, along these lines, has an absence of authority over appointed enactment, and this can
prompt irregularities in laws. Appointed enactment, in this way, can possibly be utilized in manners
which Parliament had not foreseen when it was given the power through the Act of Parliament.
6. Delegated legislation makes laws without much discussion. So, it may or may not be better for the
public.
7. Designated legislation by and large experiences an absence of exposure. Since the law made by a
statutory authority not informed to general society. Then again, the laws of the Parliament are
generally broadcasted. The purpose of the absence of exposure is the enormous degree of enactment
that is being assigned. There has likewise been concern communicated that an excess of law is made
through appointed enactment.
 8. It can possibly be misused for political gain. The executive makes law according to what the political
parties. Hence, it results in the misuse of the legislation made by the Executive by the ruling party.
9. Executives become too powerful as it already has the power of executing any laws and legislation
and now the Legislature is delegating its legislative power to the Executive. So, both the power are in
the hands of the executives now he can use this power in whatever way he wants to use it.
10. It is against the theory of the power of separation which has been given by the famous political
thinker Montesquieu.

Limitations on Delegated Legislation:

i. The Legislature cannot delegate Essential Legislative Functions which consist in the determination
or choosing of the Legislative Policy and of formally enacting that policy into a binding rule of
conduct. Justice Cardozo famously stated that the Legislature cannot delegate un canalized and
uncontrolled power, the power delegated must not be unconfined and vagrant, but must be
canalized within banks that keep it from overflowing
ii. Thus what is permitted is the delegation of ancillary or subordinate legislative functions or a
power to fill up the details.
iii. Whether any particular legislation suffers from Excessive Delegation has to be decided by courts
having regard to the subject-matter, the scheme, the provisions of the statute including its preamble,
and the facts and circumstances in the background of which the statute is enacted.
iv. Essential Legislative Functions include the power to repeal or modify a law and cannot be
delegated.
v. In the absence of an express or implied power to that effect, Delegated Legislation, be it a rule, bye-
law or a notification, cannot have retrospective operation.
vi. A power to Tax or levy any fee cannot be inferred from mere generality of the powers conferred by
the enabling enactment. Such power of imposition of tax or fee by Delegated Authority must be very
specific and there is no scope of implied authority for imposition of such tax or fee.
vii. One of the important conditions prescribed under Section 23 of the General Clauses Act, 1897 is that
the authority having power to make the rules or bye-laws shall, before making them, must publish a
draft of the proposed rules or bye-laws for the information of person likely to be affected thereby
viii. Where the delegating statute itself is ultra virus to the Constitution of India, the rules made under
such statute are also unconstitutional.
ix. The power to modify the parent statute is limited to bringing about consequential changes and cannot
be exercised to subvert the policy laid down by the legislature. No radical change in the enacted
law is permitted.
x. The legislature is the master of policy and if the delegate is free to switch policy it may be violation
of legislative power.
xi. Delegated Legislation may also be declared invalid on the following grounds:

A. Violation of the Constitution of the India.

B. Violation of the Enabling Act.
 C. Violation of Principles of Natural Justice when the Statute itself provides of such
requirement.
2. NATURAL JUSTICE AND BIAS:
The principle of natural justice defines two principles:
1. Audi Alteram Partem which means ‘no one can be left unheard’: It basically means that the court
should hear the other party and no one should be condemned unheard. This maxim is based on the
basis of the rule of fair hearing.
2. Nemo judex in causa sua which means ‘no one can be a judge in his case’: This maxim gives rise to
the duty to act fairly, to listen to the arguments and to reach a decision in a manner that is untainted
by bias.
Audi Alteram Partem
The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights
especially their fundamental rights unless it is done according to all the procedures established by the law
in Article 21 of the Constitution of India, that means they should be given prior notice of the case and
definitely a fair opportunity to answer and present their own case.
Notice means that before any action is taken, the affected party must be given the notice to show cause
against the proposed action and the court should seek his explanation. And hearing means that a reasonable
amount of opportunity to provide evidence should be provided to the person affected by it and if it is passed
without providing sufficient chances the decision should be stated as invalid and must be set aside.
The maxim Audi Alteram Partem is considered the principle of fundamental justice or equity or the principle
of natural justice. This principle includes the rights of a party to be heard or to have a fair opportunity to
challenge the evidence presented by the other party, rights to present evidence or to have a council. The
principle basically means no person shall be condemned, punished or have any property or legal right being
compromised by the law without being heard
Nemo Judex in Causa Sua
The maxim Nemo judex in causa sua is applied to the appearance of any possible bias, even if there is none
for as justice should not only be done but also should be seen to be done. The legal effect of a breach of
natural justice is to stop the procedures and render any judgement invalid, to be quashed or appealed but can
be remitted for a valid re-hearing. The principle of the maxim is not only confined to the case where the
judge is an actual party to the case, but applies to a cause in which he has a legal or pecuniary interest such
that the judges deciding the matter should not be influenced by their personal interest, but to avoid the
appearance of labouring under such an influence
The rule against Bias is a fundamental aspect of natural justice, requiring that any decision-making
authority consists of impartial individuals who act fairly and without prejudice.
In this context, bias refers to any preconceived opinion or predisposition that might influence a person’s
judgment concerning a party or an issue. Bias encompasses anything that could lead someone to decide a
case based on factors other than the presented evidence.
The rule against bias aims to prevent any improper factors from influencing a judge’s decision in a specific
case. It is rooted in the understanding that it is human nature to avoid deciding against one’s own interests.
The primary goal of this rule is to instil public confidence in the impartiality of administrative adjudication.
As stated by Lord Hewart CJ in R v. Sussex, justice must not only be served but should also be perceived as
being done without any doubt.
A decision tainted by bias is considered invalid, rendering the trial “Coram non judice” (before a judge
lacking proper authority).

What is the Rule Against Bias?

The Rule Against Bias means that decision-makers and judges should not have any personal, financial, or
preconceived feelings or opinions that could influence their judgment in a case. They should be impartial
and treat everyone fairly and without favouritism to ensure a just and fair outcome.
The rule against bias is fundamental to natural justice and fair administrative proceedings.
The “Nemo in propria causa judex” principle emphasizes that no one should act as a judge in their own case,
commonly known as the rule against bias.
Types of Bias under Rule Against Bias
The rule against bias can be categorised into different types of bias, such as:
 Personal Bias: Refers to bias arising from a personal relationship between the decision-maker and
one of the parties involved in the case.
 Pecuniary Bias: Occurs when a decision-maker stands to gain a financial benefit, no matter how
small, from the outcome of the case.
 Subject Matter Bias: Arises when the decision-maker has a direct or indirect interest in the subject
matter of the case.
 Policy Notion Bias: Relates to bias arising from preconceived notions or policy decisions made by
the decision-maker.
 Pre-conceived Notion Bias: Refers to bias arising from the decision-maker’s pre-existing opinions
or ideas about the case.
 Bias on Account of Obstinacy: Occurs when a decision-maker unreasonably and persistently
upholds their own decision, despite valid reasons for reconsideration.
The rule against bias is an essential safeguard to uphold the principles of justice and fairness in any judicial
or administrative process. It ensures that decisions are made objectively, without any undue influence or
favouritism. When the rule against bias is violated, it can invalidate the decision or the entire process being
declared unfair and unlawful.
I. Personal Bias
Personal bias occurs when there is a relationship between the decision-maker and one of the parties
involved, leading the decision-maker to act unfairly and render a judgment in favour of the person to whom
they are connected. Such biases can arise from various personal and professional relationships.
It is essential to provide reasonable evidence of bias to challenge an administrative action based on personal
bias successfully.
In a specific case, Ramanand Prasad Singh vs. UOI, the Supreme Court held that even though one
member of the selection committee had a brother participating in the competition, the entire selection
procedure could not be invalidated. Instead, to avoid the act of bias, the respective panel member connected
to the candidate should be asked to recuse themselves from the committee. This way, a fair and impartial
decision can be reached.
In another case Mineral Development Corporation Ltd. v. State of Bihar, the Supreme Court quashed a
government order due to personal bias. The challenge was based on several facts, including the owner of the
Mineral Development Corporation opposing the minister in the 1952 elections, the minister filing a suit
against the owner under Section 500 of the IPC and existing political rivalry.
II. Pecuniary Bias
Pecuniary bias refers to a situation where a judicial body or authority stands to gain any form of financial
benefit, no matter how small, which can lead to biased decision-making.
In the case of J. Mohapatra & Co. v. State of Orissa (AIR 1984 SC 1572), the Supreme Court invalidated
the decision of the Textbooks’ selection committee because some of its members were also authors of the
books being considered for selection. The Court held that merely withdrawing a person while considering
their own books is insufficient to eliminate the possibility of quid pro quo with other committee members.
III. Subject Matter Bias
Subject matter bias occurs when the deciding authority is directly or indirectly involved in the subject matter
of a particular case.
In the case of Muralidhar vs. Kadam Singh, the court refused to quash the Election tribunal’s decision,
despite the chairman’s wife being a member of the Congress party, whom the petitioner defeated. In this
instance, the court did not find sufficient grounds to prove subject matter bias.
In Gullapalli Nageswara Rao v. A.P.S.R.T.C (AIR 1959 SC 308), the Supreme Court quashed the decision
of the Andhra Pradesh Government to nationalize road transport. The decision was invalidated because the
Secretary of APSRTC, who conducted the hearing, had an interest in the subject matter, leading to subject
matter bias.
IV. Departmental Bias
The problem of departmental bias is a prevalent issue in various administrative processes, and its unchecked
existence can erode the concept of fairness in proceedings. If not effectively addressed at regular intervals, it
can lead to a negative perception of fairness in the entire system.
In the case of Krishna Bus Service Pvt Ltd. v. State of Haryana (AIR 1985 SC 1651), private bus
operators alleged that the General Manager of Haryana Roadways, who was also involved in a rival business
within the state, would not be able to perform his duties impartially. They argued that he might show
leniency in inspecting vehicles belonging to his own department. The Supreme Court quashed the
notification in question because it found a conflict of interest between the duty of the General Manager and
the department’s interests. This conflict of interest led to a loss of public confidence in the fairness of
administrative justice.
V. Policy Notion Bias
In the case of T. Govindaraja Mudaliar v. State of T.N. (AIR 1973 SC 974), the Tamil Nadu government
made a policy decision in principle to nationalize road transport and formed a committee to devise the
scheme. The Home Secretary was appointed as a member of this committee. Subsequently, the
nationalization scheme was finalized, and published, and the Home Secretary heard objections.
The petitioner argued that the Home Secretary’s hearing was tainted by policy notion bias because he had
already made up his mind on the question of nationalization while serving as a member of the committee
that formulated the policy. However, the Supreme Court rejected the challenge, stating that as a committee
member, the Secretary did not finally determine any issue that could have foreclosed his mind. Instead, he
merely assisted the government in framing the scheme. The Court found no evidence of bias in the hearing
process based on the Secretary’s prior involvement in the policy decision-making committee.
VI. Pre-Conceived Notion Bias
Pre-conceived notion bias is when a judge or decision-maker already holds a pre-existing opinion or idea
about a case before it is heard, potentially influencing their judgment. It is a delicate issue in administrative
law, as judges are not expected to be entirely impartial like blank sheets of paper, but preconceived notions
can compromise a fair trial.
In the case of Kondala Rao v. APSRTC (AIR 1961 SC 82), the Supreme Court did not quash the order of
the Minister who heard objections from private operators regarding the nationalization of road transport. It
was argued that the Minister had previously presided over a meeting where nationalization was favoured,
suggesting a preconceived notion on the matter.
However, the Court rejected this contention, emphasizing that the decision of the committee was not final
and irrevocable but merely a policy decision. In this context, the Court implied that the Minister’s prior
involvement did not necessarily imply bias in the hearing process, as the decision was still open to
discussion and modification.
VII. Bias on Account of Obstinacy
Bias on account of obstinacy refers to a situation where a decision-maker shows unreasonable and
unwavering persistence in upholding their own decision or judgment, even when there are valid reasons to
reconsider it. This type of bias was discovered in a case where a Calcutta High Court judge upheld his
judgment while sitting in appeal against his ruling. While it is not possible for a judge to directly violate the
rule of not sitting in appeal against their own judgment, they can indirectly violate it, as demonstrated in the
case.
In the case of A.U. Kureshi v. High Court of Gujarat (2009) 11 SCC 84, a judicial officer (the appellant)
was dismissed from service after being found guilty in a disciplinary inquiry. The appellant had previously
acquitted an accused under the Gambling Act and returned the seized money. A complaint was later filed
against the appellant, leading to a disciplinary inquiry. The High Court recommended the appellant’s
dismissal based on the suggestion of the Disciplinary Committee.
The Supreme Court held that a judge who was part of the Disciplinary Committee should not have decided
the matter on the judicial side. It was improper for a member of the Disciplinary Committee to adjudicate on
a challenge against the same dismissal order while acting in a purely judicial capacity.
Such actions create an apprehension of bias on the part of the judge. Consequently, the Supreme Court set
aside the High Court’s order and remitted the matter for fresh consideration, adhering to the principle that no
judge should decide a dispute they have dealt with in any capacity other than a purely judicial one.
Conclusion
The rule against bias is a crucial principle of natural justice and fair administrative proceedings. It ensures
that decision-makers remain impartial and free from any personal, financial, or preconceived biases that
could influence their judgment.
The rule guards against different forms of bias, such as personal bias, pecuniary bias, subject matter bias,
policy notion bias, pre-conceived notion bias, and bias on account of obstinacy.

3. LIABILITY OF STATE:

The Case of Rudul Shah, lead to inference that the defense of sovereign immunity is not available when the
state or its officers acting in the course of employment infringe a person’s fundamental right of life and
personal liberty as guaranteed by the Art. 21 of the Constitution of India. The supreme Court cases discussed
above did not refer to the doctrine of sovereign immunity or the case of Kasturilal on which the following
submission was made:
“It is submitted that, that case (kasturilal) even if not overruled can be distinguished on the ground that it
did not consider the nature of liability of the state when there is deprivation of fundamental right.”

The modern social thinking of progressive societies and the judicial approach is to do away with archaic
State protection and place the State or the Government on a par with any other juristic legal entity. Any
watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or
“governmental and non-governmental” is not sound. It is contrary to modern jurisprudential thinking. The
need of the State to have extraordinary powers cannot be doubted. But with the conceptual change of
statutory power being statutory duty for the sake of society and the people, the claim of a common man or
ordinary citizen cannot be thrown out, merely because it was done by an officer of the State; duty of its
officials and right of the citizens are required to be reconciled, so that the rule of law in a Welfare State is
not shaken.

4. Privileges And Immunities In Suits of The State

Every problem has its own remedy. For the purpose of actions of the administration, these remedies help in
preventing the recurrence the extraordinary legal remedies that is available to the individual against the
illegal of an illegality. However, they do not provide full redress to the aggrieved individual. Private citizens
access to the ordinary courts and the ordinary legal remedies may be qualified by the existence of certain
privileges and immunities enjoyed by the state. These privileges immunities though justified in the days in
which they originated, are hardly justified in a democratic society. However, the state does enjoy and it may
be necessary for it to enjoy certain privileges and immunities. Administrative law is engaged in the process
of redefining such privileges and immunities with a view to reconciling them with the needs of modern
times.

The Constitution clearly says that the executive power of the Union and of each state extends to ‘the
carrying on for any trade or business and to the acquisition, holding and disposal of property and the making
of contracts for any purpose’. The Constitution therefore, provides that a Government may sue or may be
sued by its name. Similar provisions to be found in the Code of Civil Procedure. The above provisions do
not, however, enlarge or restrict the extent of State liability; they merely provide the method of redress. The
extent of liability will be discussed separately.
Liabilities:
a. Sovereign function
b. Contractual liability
c. Estoppel
d. Unjust enrichment
Privileges
a. Sovereign and non sovereign function
b. Contractual liablity
c. S. 80
d. To withhold documents.

Sovereign functions of the state can be defined as those functions where the state is not answerable before
the court of law for their performance. These functions are mainly concerned about the defence of the
country, maintenance of the armed forces of the country, and maintenance of peace in the territory. These
functions can only be performed by the state for external sovereignty and that is why they are not amenable
to the jurisdiction of ordinary Civil Courts and are primarily inalienable functions. But apart from this, there
are various sovereign functions of the state which are not primarily inalienable which include taxation,
police functions comprising maintenance of law and order, legislative functions, administration of law and
policies, and grant of pardon.
Post Constitutional view: Case State of Rajasthan v. Vidyawati (1962). A jeep was owned and maintained
by the state of Rajasthan for official use of collector of a district. Once the driver of the jeep was taking it
back from the workshop after repairs by (his) rash and negligent act of driver of the jeep a pedestrian was
knocked down and fatally injured. He died. His widow sued the state for damages. The state claim immunity
on the ground that in similar circumstances the east India Company would not have been liable, as the jeep
was maintained in the exercise of sovereign functions and not as a part of commercial activity of the state
was vicariously liable for the rash and negligent act of the driver and held that the doctrine of sovereign
immunity founded on English law had no validity in India.

Case Kasturil Ial v. State of UP (1965). A certain quantity of gold and silver was seized by police from
Raila Ram on the suspicion that it was stolen property. It was kept in government Malkhana which was in
custody of a Head Constable. The property was misappropriated by the head constable who fled to Pakistan.
Raila Ram was prosecuted but acquitted of charge. A suit for damaged was filed by Raila Ram against the
state for the loss caused to him by the negligence of police authorities following the principle laid down in
steam navigation co. case, the supreme court ruled that the state was not liable as police officers were
exercising sovereign functions.

Case Basavva patil v. State of Mysore (1977). In this case a theft was committed and some ornaments were
stolen from the house of the appellant. Five persons were arrested. The police authorities recovered the
ornaments in the course of investigation. The magistrate asked the police to keep them in police custody
before the disposal of the case. The application for return of goods under Sec. 517 Cr.P.C, 1898 was rejected
by the magistrate on the ground that the goods had not reached the custody of the magistrate. The said order
was confirmed by the High Court.

On appeal, the Supreme Court reversed the decision and ordered the state to pay cash equivalent of the
property to the appellant.
The word otherwise indicates that such liability may arise in respect of tortious acts as well the extent of the
said liability is defined in article 300 (l) which declares that the government of India or of a state may sue or
may be sued in relation to their respective affairs in the like cases as the Dominion of India and
corresponding provinces or Indian states might have sued or been sued.
WHAT IS A CONTRACT?
Section 2(h) of the Indian Contract Act, 1872 defines a contract as “An agreement enforceable by law”. The
word ‘agreement’ has been defined in Section 2(e) of the Act as ‘every promise and every set of promises,
forming consideration for each other’.
When the central government or any state government is a party to any contract, it is known as a government
contract.
CONTRACTUAL LIABILITY OF THE ADMINISTRATION IN BRITAIN
Before 1947, in Common Law, the Crown could never be sued in a court on a contract. This privilege could
be traced back to feudalism when no individual could sue a lord in his own courts. A subject could however
seek redress against the Crown by filing a petition to put forth his claim, and if the royal fiat was granted,
the action of the Crown could be tried in a court. If the royal fiat was refused, there was no course to
remedy.
This rule was abrogated by The Crown Proceedings Act, 1947 which permitted suits to be brought against
the Crown to enforce contractual liability
CONTRACTUAL LIABILITY OF THE ADMINISTRATION IN INDIA
A. FORMATION OF CONTRACTS OF THE ADMINISTRATION
Article 299(1) of the Constitution lays down certain conditions which the contracts made under the exercise
of the executive power of the centre or a state must fulfil to be valid: These conditions are as follows:
(1) Such contracts must be expressed to be made by the President/Governor as the case may be;
(2) Such contracts made in exercise of the executive power are to be executed on behalf of the
President/Governor as the case may be; and
(3) The execution and the manner of execution of such contracts may be directed or authorised by the
President/Governor.
(4) The word executed in Article 299(1) indicates that the contract between the government and any person
must be in writing. A mere oral contract is not sufficient for the purposes of Article 299(1).[5]
The Supreme Court, in K.P. Chowdhary v. State of Madhya Pradesh,[6] observed that in view of Article
299(1) there cannot exist an implied contract between the Government and another person. The Court also
ruled that ‘if the contract between the Government and another person is not in full compliance with Article
299(1), it would be no contract at all and will be unenforceable either by the Government or other person as
a contract.
The judicial attitude to Article 299 has sought to balance two objectives:
(1) on one hand, the need to protect the Government from unauthorised contracts; and
(2) at the same time, to safeguard the interest of unwary parties who enter into contracts with government
officials while no formalities laid down in the Constitution are fulfilled.
Under Article 299(1) a contract between the government and a private party to be enforceable must be
expressed in the name of the President or the Governor. Regardless of the contract being made by a person
authorised by the President or the Governor to make it, it will be unenforceable against the government if it
is not expressed to be made on behalf of the President or the Governor.
The Supreme Court has held that whenever the government has to deal with the public by entering into a
contract or by issuing a licence, the government cannot act arbitrarily. It must act in accordance with the law
and the decisions and actions of the state must be established upon a sound, transparent, and well-defined
policy that should be communicated to the public.
B. RATIFICATION OF CONTRACTS BY ADMINISTRATION
A judicial view, before 1968, expressed that even though the government could not be sued on informal
contracts ordinarily, it could accept responsibility of them by ratifying them.[9]
In State of West Bengal v. B.K. Mondal,[10] the Supreme Court observed that a contract which does not
conform with Article 299(1) was not ‘void’ in the technical sense that it could not be ratified.[11]
Section 70 of the Indian Contract Act, 1872
Liability to pay for non-gratuitous act- Where a person lawfully does anything for another person, or
delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit
thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done
or delivered.
Illustration
A leaves his goods by mistake in B’s house . B treats the goods as his own. He is bound to pay A for them. B
is unjustly enriched at A’s expenses.

PRIVILEGES AND IMMUNITIES OF THE ADMINISTRATION IN SUITS

The various privileges available to the Government under various statutes are as follows:
I. Immunities from the operation of the statute
In England the rule is that its own laws do not bind the Crown unless by express provision or by necessary
implication they are made binding on it. Thus in England the statutes are not binding on the crown unless by
express provision or by necessary implication, they are made binding thereon. Its basis is the maxim “ the
King can do on wrong. This rule was followed even in India till 1967.
In India the present position is that the statute binds the State or Government unless expressly or by
necessary implication it has exempted or excluded from its operation. In case the State has been exempted
from the operation of the statute expressly, there is no difficulty in ascertaining whether the statute is binding
on the State or not but it becomes a difficult issue in case where the State is exempted from the operation of
the statute by necessary implication. However, where the statute provides for criminal prosecution involving
imprisonment, the statute is deemed to be excluded from the operation of the statute necessary implication.
II. Privileges and Immunities under the Civil Procedure Code, 1908.
 Section 80 (1)
provides that no suit shall be instituted against the Government or against a public officer in respect of any
act purporting to be done by such public officer in his official capacity, until the expiration of two months
next after notice in writing has been delivered in the manner provided in the section. The section is
mandatory and admits of no exception. Thus, the requirement of notice is mandatory. However, it is to be
noted that if a public officer acts without jurisdiction, the requirement of notice is not mandatory. Its object
appears to provide the Government or the public officer an opportunity to consider the legal position thereon
and settle the claim without litigation.

The Government may waive the requirement of notice; the waiver may be express or implied.
The requirement of notice causes much inconvenience to the litigants especially when they seek immediate
relief against the Government.

To minimize the hardships to the litigants a new Clause (2) was inserted in Section 80 of the C.P.C by the
Civil Procedure Code Amendment Act, 1970. The clause provides that the Court may grant leave to a person
to file a suit against the Government or a public officer without serving the two-month’s notice in case
where relief claimed is immediate and urgent. Before granting this exemption the Court is required to satisfy
itself about the immediate and urgent need.

It is to be noted that S.80 of the C.P.C does not apply to a suit against a statutory Corporation.
Consequently in case the suit is filed against the statutory Corporation. Consequently, such notice is not
required to be given in cases the suit is filed against statutory Corporation.

Section 80 does not apply with respect to a claim against the Government before the claim Tribunal under
the Motor Vehicle Act.
Section 80 of the C.P.C. does not apply to a writ petition against the Government or a public officer, the
requirement of notice as provided under Section 80 of the C.P.C is not required to be complied with Section
82 of the C.P.C. also provides privilege to the Government.
Sec. 80 CPC is mandatory- Provisions u/s. 80 CPC are mandatory and failure to serve two months prior
notice will entail the dismissal of the suit. (B.R. Sinha vs. State of M.P., AIR 1969 SC 1256 )
Death of plaintiff after issue of notice u/s. 80 CPC and before institution of suit--- Where notice u/s. 80 CPC
by plaintiff’s father was issued to the Government but before the expiration of next two months and
institution of suit, the plaintiff’s father died and the suit was then filed by the son without giving fresh notice
u/s. 80 CPC, it has been held by the Supreme Court that the notice u/s. 80 CPC already issued is sufficient
and fresh notice is not necessary.(Ghanshyam Dass vs. Dominion of India, AIR 1984 SC 1004)

 82 OF CPC
According to this section where in a suit by or against the Government or the public officer, a time
shall be specified in the decreed within which shall be satisfied and if the decree is not satisfied
writhing the time so specified and within three months from the date of the decree. Where no time is
so specified, the Court shall report the case from the orders of the Government. Thus a decree against
the Government or a public officer is not executable immediately. The Court is required to specify
the time within which the decree has to be satisfied and where no such time has been specified, three
months from the date of the decree will be taken to be the time within which is to be satisfied. If the
decree is not satisfied within such time limit the Court shall report the case for the orders of the
Government.
III. Privileges under the Evidence Act (Privileges to withhold documents)
In England the Crown enjoys the privilege to withhold from producing a document before the Court in case
the disclosure thereof is likely to jeopardize the public interest. In Duncon v. Cammel Laird Co. Ltd. The
Court held that the Crown is the sole judge to decide whether a document is a privileged one and the court
cannot review the decision of the Crown. However, this decision has been overruled in the case of Conway
v. Rimmer. In this case the Court has held that it is not an absolute privilege of the Crown to decide whether
a document is a privileged one. The court can see it and decide whether it is a privileged one or not.

In India Section 123 provides that no one shall be permitted to give any evidence derived from unpublished
official records relating to any affair of State except with the permission of the officer at the Head thinks fit.
Only those records relating to the affairs of the State are privileged, the disclosure of which would cause
injury to the public interest. To claim this immunity the document must relate to affairs of state and
disclosure thereof must be against interest of the State or public service and interest.

The section is based on the principle that the disclosure of the document in question would cause injury to
the public interest And that in case of conflict between the public interest and the private interest, the
private interest must yield to the public interest.

The Court has power to decide as to whether such communication has been made to the officer in official
confidence. For the application of Section124 the communication is required to have made to a public
officer in official confidence and the public officer must consider that the disclosure of the communication
will cause injury to the public interest.

According to Section162 a witness summoned to provide a document shall, if it is in his possession or

power, bring it to the Court, not with outstanding any objective which there may be to its production or to its
admissibility. The Court shall decide on the validity of any such objection. The court, if it sees fit, may
inspect the document, unless it refers to the matters of State or take other evidence to enable it to determine
on its admissibility. If for such purpose it is necessary to cause any document to be translated the Court may,
if it thinks fit, direct the translator to keep the contents secret, unless the direction, he shall be held to have
committed an offence under Section 166 of the Indian Penal Code.

Sections 162 apply not only to the official documents but also to the private documents.

It is for the Court to decide as to whether a document is or is not a record relating to the affairs of the State.
For this purpose the Court can take evidence and may inspect the document itself.

In State of Punjab v. Sodhi Sukdev Singh, court had the opportunity of discussing the extent of
government privilege to withhold documents where twin claims of governmental confidentiality and
individual justice compete for recognition.
The court was very alive to the constraints of this privilege on private defense, therefore Gajendragadkar, J.
delivering the majority judgment cautioned that care has to be taken to see that interests other than that of
the public do not masquerade in the garb of public interest and take undue advantage of the provision of
Section 123. In order to guard against the possible misuse of the privilege, the court also developed certain
norms.
a) First, the claim of privilege should be in the form of an affidavit, which must be signed by the
Minister concerned, or the Secretary of the Department.
b) Second, the affidavit must indicate within permissible limits the reasons why the disclosure would
result in public injury, and that the document in question has been carefully read and considered and
the authority is fully convinced that its disclosure would injure public interest.
c) Third, if the affidavit is found unsatisfactory, the court may summon the authority for cross-
examination.

Working the formulations still further, the court in Amar Chand v. Union of India, disallowed the
privilege where there was evidence to show that the authority did not apply its mind to the question
of injury to the public interest which would be caused by the disclosure of the document. In Indira
Nehru Gandhi v. Raj Narain, the Court compelled the production of Blue Books of the policy and
disallowed the claims of privilege. In State of Orissa v. Jagannath Jena, the Supreme Court again
disallowed the privilege on the ground that the public interest aspect had not been clearly brought out
in the affidavit. In this case, the plaintiff wanted to see endorsement on a file by the Deputy Chief
Minister and the I. G. of Police.

The law on Government privileges took a new turn in S.P. Gupta v. Union of India, The question in
the present case was whether the correspondence between the Law Minister and these Chief Justices
ought to be produced in the Supreme Court, so, as to enable the court to judge the question of
validity of the non-continuance of an Additional Judge in the Delhi High Court. The government
opposed the production of these reports on the ground that their disclosure would injure public
interest under Section 123 of the Indian Evidence act. But the Supreme Court ruled otherwise. The
case is a definite evidence of court’s attempt to promote the ideal of open Government in India.

Justice Bhagwati took some such view in the above case when he expressed his faith in the ideal of
an open Government. Merely secrecy of the Government is not a vital public interest so as to prevail
over the most imperative demands of justice.

In giving a new orientation to the statutory provision in question, Bhagwati, J. emphasized, “Where a
society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to
know what their Government is doing.” He observed: “The citizen’s right to know the facts, the true
facts, about the administration of the country is thus one of the pillars of a democratic state. And this
is why the demand for openness in the Government is increasingly growing in different parts of the
 world.”

He further pointed out that if the process and functioning of Government are kept shrouded in
secrecy and hidden from public scrutiny, it would tend to promote and encourage oppression,
corruption and misuse or abuse of authority.

The decision has opened a new dimension of judicial control over the exercise of privileges under
Sections 123 by the executive. The Court now has assumed the power of inspection of documents in
camera and if it finds that its disclosure would harm the public interest, the claim for non-disclosure
might be upheld. If the disclosure, to the mind of the Court, does not harm the public interest, its
disclosure would be ordered.

Period of Limitation for Suit Against Government

Article 149 of the First Schedule of the Limitation Act of 1890 prescribed a longer period of
limitation for suits by or on behalf of the State. The Act of 1963 contains a similar provision under
Article 112. The Article applies to the Central Government an all the State Governments including
the Government of the State of Jammu land Kashmir. This longer limitation period was based on the
common law maxim nulla tempus occur it rein, that is, no time affects the Crown.

The longer period of limitation, however, does not apply to appeals and applications by
Government.

Under Section 5 of the Limitation Act, it is provided that an appeal or application may be admitted
after the expiry of the period of limitation if the court is satisfied that there was sufficient cause for
the delay. It was held that the government was not entitled to any special consideration in the matter
of condo nation of delay.
IV. Immunity from Promissory Estoppel
Estoppel is a rule whereby a party is prohibited from denying the existence of some state of facts, which he
had previously asserted and on which the other party has relied or is entitled to rely on. Courts, on the
principle of equity, to avoid injustice, have evolved the doctrine of promissory estoppels.

The doctrine of promissory estoppel or equitable estoppel is firmly established in administrative law. The
doctrine represents a principle evolved by equity to avoid injustice. Application of the doctrine against
government is well established particularly where it is necessary to prevent manifest injustice to any
individual.

The doctrine of promissory estoppel against the Government also in exercise of its Government, public or
executive functions, where it is necessary to prevent fraud or manifest injustice. The doctrine within the
aforesaid limitations cannot be defeated on the plea of the executive necessity or freedom of future executive
action.

The doctrine cannot, however, be pressed into aid to compel the Government or the public authority “to
carry out a representation or promise.
a) which is contrary of law; or
b) which is outside the authority or power of the Officer of the Government or of the public authority to
make.”
It is to be noted that Estoppel cannot be pleaded against a minor or against statute. Estoppel does not lie
against the Government on the representation or Statement of facts under Section 115 if it is against the
statute or Act of the Legislature but it may be applied in irregular act. The liability of the Government has
been extended by the doctrine of Promissory Estoppel.
Doctrine of Promissory Estoppel
Doctrine of Promissory Estoppel is often applied to make the Government liable for its promises and
stopped from going back from the promise made by it. According to this doctrine where a person by words
or conduct and the other person acts on such promise changes his positive to his detriment, the person who
gives such promise or assurance cannot be allowed to revert or deviate from the promise.
Case Law Related To Doctrine of Promissory Estoppel
In India, the courts are invoking this doctrine; In Union of India v. Anglo (Indo) – Afghan Agencies Ltd. ,
The doctrine of Promissory Estoppel was applied against the Government. This case developed a new
judicial trend. The Court upheld the application of Promissory Estoppel to the executive acts of the State.
The Court negated the plea of executive necessity. Under the scheme an exporter was entitled to import raw
materials equal to the amount, which was exported. Five lakhs rupees worth goods were exported by the
petitioner but he was given import license for an amount below two lakh rupees. The Court held that the
Government was bound to keep its promise. The scheme was held to be binding on the Government and the
petitioner was entitled to get the benefit of the scheme.

In short, if the Government makes a promise and promisee acts upon it and changes his position, then the
Government will be held bound by the promise and cannot change its position against the promisee and it is
not necessary for the promisee to further show that he has acted to his detriment. For the application of the
doctrine of Promissory Estoppel it is not necessary that there should be some pre-existing contractual
relationship between the parties.

In Delhi Cloth and General Mills v. Union of India, the Supreme Court has held that for the application of
the principle of Promissory Estoppel change in position by acting on the assurance to the promise is not
required to be proved.

However, the judicial opinion is that it cannot be invoked against a statutory provision or to support an ultra
vires act or to compel the Government or a public authority to carry out a promise, which is contrary to law,
or ultra vires its powers.
Non-Applicability of Doctrine of Promissory Estoppel
The doctrine of Promissory Estoppel is not applied in the following conditions:
1. Public Interest: The doctrine of Promissory Estoppel is an equitable doctrine and therefore it must yield
place to the equity if larger public interest requires. It would not be enough to say that the public interest
requires that the Government would suffer if the Government were required to honor it. In order to resist its
liability the Government would disclose to the Court the various event insisting its claim to be exempt from
liability and it would be for the Court to decide whether those events are such as to render it equitable and to
enforce the liability against the Government.

2. Representation against law: The doctrine of Promissory Estoppel cannot be applied so as compel the
Government or the public authority to carry out a promise, which does law prohibit.

3. Ultra vires promise or representation: If the promise or representation made by the officer is beyond his
power, the State cannot be held liable for it one the basis of the Principle of Promissory Estoppel.

4. Fraud: the doctrine of Promissory Estoppel is not applied in cases where the promise from the
Government is obtained by fraud.

5. Fraud on the Constitution: The doctrine of Promissory Estoppel is not applied in cases when the promise
or representation is obtained to play fraud on the Constitution and enforcement would defeat or tend to
defeat the Constitutional goal.

7 MARKS
1. CERTIORARI
Basically it means “to be certified”. It can be issued by the Supreme Court or the High Court to quash an
order already passed by a lower court. It could also be used by the Supreme Court to transfer a particular
matter to it or some other superior judicial authority for consideration.
Grounds for Certiorari and Persons against whom Certiorari can be constituted
Certiorari is basically a tool for judicial control and restraint. As mentioned above, it is issued by the
Supreme Court or the High Court to quash an order passed by an inferior court, tribunal, or quasi-judicial
authority, whenever the authority has acted in excess of its power, or without requisite jurisdiction, or has
violated the principles of natural justice. It is corrective in nature and is aimed at preventing overstepping by
the judicial authorities.
Essential conditions for the writ of Certiorari
For the issuance of the writ of certiorari, the following conditions must be fulfilled:
1. The existence of an officer or a tribunal having the judicial authority as per the law to decide on the
cases affecting the rights of people.
2. Such an officer or the tribunal must have acted-
 in excess of judicial power, or
 without requisite jurisdiction, or
 in violation of the principles of natural justice.
3. The honorable Supreme Court has clarified that this writ cannot be issued against purely
administrative actions. This implies that it can be invoked only in those situations where it is the
concerned authority’s duty to act judiciously, after hearing both the parties and without any
extraneous considerations. However, in the subsequent decisions, this view has been rejected. So
even if the authority is not required to hear both sides before coming to a decision, the principles of
natural justice must be obeyed. Thus, the writ of certiorari can be issued even in the administrative
cases.
4. A body is said to have acted beyond its jurisdiction in the following cases:
 Where the court considering the matter has not been constituted properly as per the law, like the
requirements of members, etc.
 Where the subject matter of inquiry lies beyond the scope of the body’s powers as per the law.
 When the jurisdiction has been based on a wrong assumption of facts.
 When there is a failure of justice due to violation of principles of natural justice
 presence of elements like fraud, collusion, or corruption.
 Even though the body has acted well within the limits of its jurisdiction, a decision can be quashed if
there is a blatant error prima facie. The error here means an error of law.
Thus, in all the above-mentioned cases, a writ of certiorari can be issued.
Procedure to file a writ of Certiorari
The procedure to file a writ for certiorari is similar to filing any writ petition. A writ petition can be filed
either in the Supreme Court under Article 32 or in the High Court under Article 226, whenever a
person’s fundamental rights have been violated.
No specific time limit has been provided for the filing of the petition. However, there is room for
reasonable delay. It should be filed within a reasonable time after the violation of a right.
 To begin with, an aggrieved person has to first approach an advocate or an organization with all the
required documents.
 This is followed by the drafting of the petition by the lawyer. The draft will include all the required
particulars about the aggrieved and the facts about the breach of his rights.
 The petition is then filed in court. Then the court will prescribe a specific date for the hearing.
 Notice shall be sent by the court to the other party. Both parties shall then appear in the court and put
forward their arguments.
 After hearing both sides, the judge shall pass the judgment. Just like any other writ, there is a proper
prescribed format for the writ that is to be followed in the petition.
Cases law related to the writ of Certiorari
The following are some important case laws associated with the writ of certiorari:
Syed Yakoob v. K.S. Radhakrishnan & Ors. (1964)
Facts
The State Transport Authority had called for applications for the grant of two-stage carriage permits via a
notification under the Motor Vehicles Act, 1939. After receiving a number of applications, the first permit
was granted to one of the applicants while fresh applications were called for the second one. Following this,
the appellant appealed to the State Transport Appellate Tribunal. The Tribunal in its decision confirmed the
first permit and in the second it allowed the appellant’s appeal and held that it should be given to him. The
respondent then moved to the High Court with a writ of certiorari. It contended that the Tribunal had
overlooked several material considerations. When the previous order was affirmed, the appellant then moved
the Supreme Court under a special leave petition.
Issue
Did the High Court exceed its jurisdiction by issuing the writ of certiorari?
Held
It was held that the High Court did exceed its jurisdiction by issuing the writ of certiorari in the present case.
It was observed that this writ is issued to correct instances where a court has exceeded its jurisdiction. Under
the powers granted by the writ, the court cannot act as a court of appeal or check an error of fact. It can be
employed in cases where there is an error of law, or when it can be shown that there has been a violation of
the principles of natural justice. But not on the basis of an error of fact solely. However, whether there has
been such an error or not is a matter of the court’s discretion.
Hari Vishnu Kamath v. Syed Ahmed Ishaque (1954)
Facts
In this case, both the appellant and respondent were two election candidates from the constituency of
Hoshangabad for the election to the House of the People. When the result came out, the respondent secured
more votes than the appellant and the Returning Officer declared the former as the winner. The appellant
then filed a writ petition challenging the election and setting it aside as 301 ballot papers marked in favor of
the respondent were not valid as they did not have the distinguishing marks as per Rule 28. The Election
Tribunal dismissed the petition on the ground that the result was not affected by the wrong acceptance of
votes. The appellant then moved to the High Court for a writ of certiorari to get the order passed by the
Election Tribunal quashed on the grounds that it was invalid and the Tribunal had overstepped its
jurisdiction.
Issue
Whether the High Court had the jurisdiction to issue a writ under Article 226 against the decision of the
Election Tribunal?
Held
It was held that the petition was maintainable and the decision of the Tribunal came under the writ
jurisdiction of the High Court. The decision by the Election Tribunal was also quashed.
Also, it firmly established the following principles:
(i) The writ can be issued for correcting the errors of jurisdiction committed by the lower courts.
(ii) It is a part of the supervisory jurisdiction of the court and not the appellate jurisdiction. If the law does
not allow an appeal in a particular case, then giving it a back-door entry via the writ of certiorari amounts to
defeating the purpose of the law.
(iii) The aim here is not to re-hear the case and consider the facts once again. It can only be invoked in cases
of error of law.
Radhey Shyam and anr. v. Chhabi Nath and Ors. (2015)
Facts
The respondent had filed a writ petition in the High Cout, during the pendency of trial, against an interim
order passed by the civil court. The High Court vacated the interim order and passed in favor of the
appellant. Then the appellant moved the Supreme Court under Special Leave Petition contending that the
High Court had no jurisdiction to pass the order and no writ petition can lie against an interim order passed
by civil court.
Issue
Can a writ be filed against the order of the civil court under Article 226 of the Indian Constitution?
Held
The court differentiated the High Court’s jurisdiction under Articles 226 and 227. It was observed that
Article 226 gives writ jurisdiction to the court, while on the other hand Article 227 gives supervisory
jurisdiction. Both of them differ in their scope and nature of powers given to the court. As per Article 227,
the court cannot only quash an order, but also substitute it with its own opinion or a decision. But the court
cannot do the same under Article 226. Thus, it was held that judicial orders of civil courts are not amenable
to a writ of certiorari.

3. SEPERATION OF POWERS:
The concept of separation of powers refers to a system of government in which the powers are divided
among multiple branches of the government, each branch controlling different facet of government. In most
of the democratic countries, it is accepted that the three branches are the legislature, the executive and the
judiciary. According to this theory, the powers and the functions of these branches must be distinct and
separated in a free democracy. These organs work and perform their functions independently without the
interference of one into others in order to avoid any kind of conflict. It means that the executive cannot
exercise legislative and judicial powers, the legislature cannot exercise executive and judicial powers and
the judiciary cannot exercise legislative and executive powers.
Separation of Powers: A Barrier to Administrative Law
Administrative law is a branch of public law that determines the organisation, powers and duties of
administrative authorities. The principle of separation of power creates a demarcation among the three
organs of the government. But in the present scenario, administrative law is antithetical to this principle.
With the emerging pattern of globalized interdependence, the administrative agencies are not just
exercising the administrative functions but also practises quasi-legislative and quasi-judicial powers, thus,
violating the principle of separation of powers.
Contemporarily, it is a compulsive necessity to delegate the additional legislative and judicial powers to the
administrative agencies to establish efficient and adroit governance and to ensure proper enforcement of
the laws. The creation of administrative tribunals and delegation legislation took place with the aim to
reduce the load of the legislation and judiciary and to advance the lawmaking and justice giving process
with expertise. This cannot be achieved with strict implementation of the doctrine of separation of powers.
Therefore, the separation of powers acts as a limitation on administrative law.
The relevance of separation of powers in the Modern Era
Although, the doctrine of separation of powers does not have the rigid applicability that does not imply that
it has no relevance in the current scenario. The core objective of the doctrine of separation of powers is to
keep checks and balances among the three organs of the government which is an essential factor to run a
government dynamically. The logic behind this doctrine is not the strict classification rather it is the
avoidance of concentration of powers to a specific person or a body. This theory is not operative in its
absolute sense but yes, it is very advantageous if applied correlatively. Thus, not impenetrable barriers
and unalterable frontiers but mutual curtailment in the exercise of powers by the three organs of the state
is the spirit of the doctrine of separation of powers.
Criticism
Every doctrine has some effects and defects. The separation of powers might have proved to be flawless
theoretically but it cannot be applied comprehensively in real life situations. There are certain drawbacks
and limitations to it.
1. It is extraordinarily difficult to distinguish the powers of the legislature, executive and judiciary
precisely. A smooth and stable government can exist only if there is cooperation among the three
organs. Any attempt made to separate these organs into watertight compartments may lead to
failure and inefficiency in the government.
2. If this concept is adopted in its totality, then it will become impossible to take certain actions.
Consequently, neither the legislature can delegate the law making power to the executive which may
have expertise in the subject matter, nor the courts can make laws related to the functioning of courts
and proceedings.
3. In the present scenario, a state works for the welfare and prosperity of the people. It has to resolve
the complex issues of society. In such circumstances, the principle of separation of power seems to
be impossible. The imposition of this doctrine in its rigid conception will not lead to the effectuation
of the objectives of the modern state. Thus, separation of power is theoretically improbable and
practically impossible.
4. Montesquieu, by propounding this theory aimed to protect and safeguard the freedom and liberty
of the individuals which is impossible by the strict enforcement of separation of powers.