Administrative Direction

Administrative Directions
1. Government “legislation” can be classified into two categories as follows:

a. Delegated Legislation; and
b. Directions
2. An administrative direction may be general or specific.
3. Distinction b/w directions and rules:
a. Delegated Legislation is administrative legislation. Administrative directions
are administrative quasi-legislation or quasi-law.
b. Delegated legislation can only be issued when the authority concerned has
statutory power to do so. However, statutory power is not necessary for
issuing directions. Directions are issued under the general administrative
power of the Government under Articles 73 and 162 of the Constitution.
Articles 73 and 162 do not confer any legislative power. They only describe
the extent and scope of the executive powers of the central and state
governments.
Note: At times, statutory power may also be given to issue directions.
c. In legal hierarchy, a rule is superior in authority to a direction.

d. Delegated legislation is binding on both the administration and the individual
and is enforceable through a court of law at the instance of either the
administration or the individual. Generally, a direction is not so binding and
enforceable in court of law. It does not confer an enforceable right on an
individual or impose an obligation on the Administration.
Note:
⮚ Although directions may not be enforceable legally, it does not follow
from this that administrative authorities may disregard them with
impunity. The authorities are expected to follow directions and their
breach of such directions may result in disciplinary or other
appropriate action against them.
⮚ There may be an administrative remedy available to an individual for
enforcing directions, for eg, he may go to a higher authority in the
administrative hierarchy. However, the remedy available to the
individual is intra-departmental or administrative in nature and not
through a court of law.
4. Identification of Directions:
a. Expressions like ‘codes’, ‘rules’ and ‘regulations’ which are appropriate for
being used in the area of delegated legislation are also used haphazardly and
indiscriminately for directions. Therefore the label which is appended to a
particular piece of Government “legislation” is not always determinative of its
true character.
b. However, there is no definitive test that distinguishes directions from rules.
c. Four important factors which may be determinative of the nature of a
Government pronouncement are as follows:
i. Compliance or non-compliance with the procedural formalities
prescribed for the making of delegated legislation in the parent statute:
When the government instrument complies with all the prescribed
formalities, it should be treated as a rule and not a direction.
ii. The source of power:
⮚ When the government “legislation” in question mentions the
statutory provision under which it has been issued, it should be
treated as a rule, if the statutory provision authorises the
making of rules. If the statutory provision authorizes the issue
of directions, the “legislation” in question should be treated as a
direction.
⮚ Difficulties in identification arise when a government
instrument is silent as regards the source of power under which
it has been issued and it could possibly be related either to
statutory or general administrative power. In such a case, other
potentially determinative factors should be referred to in order
to decide the nature of the government instrument.
iii. The form in which the pronouncements have been made
iv. The contents of the pronouncements itself: One should consider the
following questions with regard to the government instrument:-
⮚ Whether it imposes an obligation on the individual;
⮚ Whether it is merely informational or procedural in content or
deals only with matters of administration;
⮚ Whether it imposes obligations on the Administration;
⮚ Whether it confers rights and privileges on the individuals;
In the first two cases, the instrument should be treated as a

direction. In the latter two cases, the instrument should be treated a
rule so as to bind the Administration to its self-imposed
obligations.
d. Interpretative Rules:
i. These are rules issued by the Administration to clarify statutory
provisions. Here, the Administration gives its own interpretation of a
statutory provision.
ii. Such rules can only be regarded as directions as they are not issued
under any statutory provision but under the general administrative
power.
e. Rules made by Statutory Bodies:
i. The rules, bye-laws and regulations made by a statutory body under a
statutory power conferred on it are treated as having legal force.
ii. A direction issued under statutory power prevails over a direction
issued under general administrative power.
f. Rules made by Private Bodies:
i. Rules, regulations or bye-laws made by a private association, or any
other body incorporated or registered under a statute, are not regarded
as “law”, or to have the force of law.
ii. Such bye-laws may be binding between the persons affected by them,
but they do not have the force of a statute.
g. When Rules can be treated as Directions: When rules are made under statutory
power, but they cannot be given effect to because of some lacuna in the
rule-making process, they may be treated as directions. For instance:
i. When the rule-making power conferred on the rule-making authority
by the relevant statutory provision imposed certain procedural
safeguards subject to which the rules could be made. However, if the
rules in question were made without observing these safeguards, they
may be treated as directions.
ii. Where the statutory provision conferred power to make rules “to carry
out the purposes of the Act” but the rule made is not relatable to any of
the purposes of the Act.
5. Enforceability of Directions:
a. A non-statutory direction is not enforceable in a court of law either against an
individual or the Administration, even when a direction is couched in
mandatory terms.
b. In order that such executive instructions have the force of statutory rules, it
must be shown that they have been issued either under the authority conferred
by some statute or some provisions of the constitution providing therefor.
c. A person cannot ask the Administration to refrain from enforcing the
directions.
d. Exceptions to above rule of non-enforceability:
i. There is no clear principle as to when a direction may be held binding.
The judicial approach on this subject is pragmatic, circumstantially
subjective and ad hoc in nature.
ii. A direction may be held binding on the Administration to the extent it
confers a benefit on an individual, on the basis of the principle of
promissory estoppel etc.
6. Directions inconsistent with Statutes or Rules:
a. In legal hierarchy, directions occupy a place subordinate to rules.
b. A direction may be amended by a rule or another direction. But directions
cannot interfere with or prevail over rule or statutory provisions. Statutory
provisions/rules can only be amended by another statutory provision/rule.
Note: Administrative directions can be modified, amended or consolidated
without following any particular procedure. There are no legal restrictions to
do so as long as they do not offend the provisions of the Constitution, statutes
or statutory rules.
c. Directions inconsistent with, or running counter to, or abridging statutory or

constitutional provisions are invalid.
d. Directions ought to only supplement the rules or fill in the voids or gaps
therein.
7. Discretion and Directions:
a. In modern times, it is normal to confer broad discretionary powers on the
administrators through statutes and rules without laying down any standards
for regulating the exercise of such powers.
b. If there is no provision in the statute for the purpose, a superior authority
cannot issue a direction to the junior authority as to how it should exercise its
discretion conferred on it by law.
c. General directions may be issued, however, to regulate the exercise of
discretionary powers. The directions may put down some guidelines and/or
procedural safeguards to regulate the exercise of discretionary power. In such
a context, directions may be treated as part of the constitutional scheme so as
to protect the statutory provision from being declared unconstitutional.
8. Directions may not affect Individual Rights: The Indian constitution and the
common-law jurisprudence assume freedom of the individual. Any restriction
prejudicial to his interest can be placed only by law. This cannot be done through
administrative directions. The right of an individual can be adversely affected only by
a rule made under statutory powers.
9. Directions and Article 14 of the Constitution:
a. Article 14 strikes at arbitrariness in administrative action. Directions may be
held invalid because of violation of Article 14 or else, non-observance of the
direction may result in administrative action being held arbitrary.
b. An administrative direction which is discriminatory, illogical or irrational or
has no nexus with the object sought to be achieved may itself be held void
with reference to Article 14.
c. Service rules, including directions, must be reasonable, fair and not grossly
unjust if they are to survive the test of Articles 14 and 16.
d. A rule standing by itself may be harsh and standing alone it may be vulnerable
under Article 14. But when read along with a direction issued to supplement
the rule, its harshness may be mitigated and may be valid vis-à-vis Article 14.
In such a situation the direction along with the rule becomes enforceable.
e. This proposition may not however apply if the court has held the rule to be
unconstitutional under Article 14 for conferring uncontrolled discretion on the
concerned authority. An unconstitutional rule cannot be validated by laying
down, through directions, some guidelines to regulate the exercise of the
discretionary power under the rule.
f. Directions may also be held to be binding because of Article 14.
10. Publication of Directions:
a. At present, there is no legal provision requiring publication of directions.
Thus, directions may be issued confidentially or in the form of secret
communications to the concerned authorities and individuals may be effected
thereby without their knowledge.
b. Directions may be altered at any time.
11. Directions to Quasi-Judicial Bodies:
a. Quasi-judicial bodies exercise adjudicatory functions and such a body ought to
be allowed to function without fear or favour.
b. In order to safeguard and protect the impartiality, independence and
objectivity of quasi-judicial bodies, the courts have evolved the principle that
directions cannot be issued to such bodies so as to restrict or control their
discretion and best judgement or so as to interfere with their independent
exercise of judgement in the discharge of their functions entrusted to them
under the parent statute.
c. If a direction lays down a relevant fact and is not directly addressed to the
quasi-judicial body itself, and the tribunal takes the same into consideration in
deciding a matter, then its decision is not questionable.

Administrative Direction

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Administrative Directions

1. Government “legislation” can be classified into two categories as follows:

Note: At times, statutory power may also be given to issue directions.

c. In legal hierarchy, a rule is superior in authority to a direction.

In the first two cases, the instrument should be treated as a

c. Directions inconsistent with, or running counter to, or abridging statutory or

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