1

ADMINISTRATIVE LAW NOTES

Unit I

Evolution, Nature and Scope of Administrative Law

1.1 Change in the concept of state-from laissez faire to Social Welfare state

1. Administrative law is recognised as the most outstanding legal development of the 20th
century.

2. The 19th century was characterised by the welfare state wherein there was minimum
government control, free enterprise, contractual freedom, etc. Individualistic theories
flourished in this period.

3. The state played a negative role. It was primarily a police state which helped in
maintenance of law and order, protecting the nation from external aggression, dispensing
justice to its citizens and collecting taxes for financing such activities.

4. However, in the 20th century, the evils of this system were realised. Due to contractual
freedom and freedom of enterprise, there was unequal distribution of wealth. This led to
several socialist movements specially ones in which the grievances of labourers was
voiced.

5. Thus, a need was felt that the state shall be more than a police state. It shall help
in alleviating the poor, regulating individual enterprise and most importantly bringing
about social justice. This led to the establishment of the social welfare state.

6. This may be seen even in case of India. Before independence, India was essentially a
police state as the British were more interested in furthering their own interests rather
than working for the welfare of the people.

7. However, the concept of social welfare was taken up immediately after

independence especially after the adoption of the constitution.

8. The preamble to the constitution states that India shall be a socialist, secular,
democratic, republic and must provide justice, equality, rights, freedom, etc. to all.

9. Other examples are that given in Part IV wherein it has been provided that there
shall be no concentration of wealth towards the common detriment. There shall be
equitable distribution of wealth.

10. Also, right to free and compulsory education for children up to 14 years is now a
fundamental right.

11. There is also provision of equal pay for equal work under Part IV.

12. Further, various social legislations such as the Factories Act, Minimum Wages Act,
etc. have come into the picture.
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Increase of functions of modern state

1. The growth of administrative law has primarily been due to the growth of
administrative powers and functions which is again the result of increased state
functions.

2. This has also been also attributed to the fact that the international situation in the
20th century was such that at times quick decisions required to be taken by the
executive in times of emergency and thus administrative powers increased.

3. The state today has taken up functions which were earlier carried out by the private
sector. It provides for transport, communication, energy, housing, banking, education,
trade and commerce, etc.

4. The functions of the state today may be put into 5 broad categories, namely- as a
protector, provider, entrepreneur, economic controller and arbiter.

5. A state consists of 3 organs- the legislature, executive and the judiciary. Out of the
three, the executive is the most powerful these days

. 6. Not only does the executive have powers of administration, it also has powers of
legislation in the form of delegated legislation. Along with that it has the power
toconduct enquiries and investigations and give binding decisions as in case of
administrative adjudication. Sometimes it may even exercise its discretion.

7. However, some sort of check must be exercised on such powers and the same is
done with the help of administrative law. Administrative law helps in balancing public
power and personal rights

. 8. If exercised properly, vast administrative powers could lead to a well functioning

welfare state and if not exercised properly it would lead to despotism.

9. Administrative law provides several limitations on executive power in the form of

rule of law, separation of powers, principles of natural justice, judicial and
parliamentary controls, administrative appeals, ombudsman, etc.

Definition and Scope of Administrative Law

1. According to KC Davis , ‘administrative law is the law concerning the powers and
procedures of the administrative agencies including especially the law governing
judicial review of administrative action.’ This explains the American approach to the
subject.

2. As per Davis, an administrative agency is a governmental body other than a court

or a legislature which affects the rights of private parties through adjudication and rule
making.

3. However, this definition cannot be accepted in totality as even though it emphasises

on the procedure followed by administrative authorities, it does not talk about certain
other functions of the executive which are non-adjudicatory in nature and do not at
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the same time fall within the scope of legislative or quasi-judicial function. Also, it
lays too much emphasis on judicial control and does not mention about other means
of control such as parliamentary control, etc.

4. The British approach has been provided in the definition given by AV Dicey . He
defines administrative law as ‘denoting that portion of a nation’s legal system which
lays down the legal status and liabilities of state officials, the rights and liabilities of
private individuals in their dealings with public officials and specifies the procedure
by which such rights and liabilities may be enforced.’

5. Dicey’s definition may be criticised on the ground that it is a very restrictive

definition as it emphasises only on the aspect of control over public officials. Further,
it only talks of state officials and ignores others like public corporations, etc. It
excludes several other functions and powers of public authorities.

6. The modern British approach can be seen in the definition given by Sir Ivor
Jennings who states that ‘administrative law is the law of the administration. It
determines the organisation, powers and duties of the administrative authorities.’

7. The above definition is the most widely accepted definition of administrative law.
However, it has been criticised on the ground that it doesn’t differentiate between
administrative law and constitutional law. Also, it is too broad a definition. Further,
itdoes not provide for remedies available to an aggrieved person when his rights are
affected by administrative action.

8. According to Wade, ‘administrative law is the law relating to the control of

governmental power. The primary object of administrative law is to keep powers of
the government within their legal bounds so as to protect the citizens against their
abuse.’

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

10. Administrative powers have been called a necessary evil as even though they are
required, they may lead to arbitrariness on the part of the executive. They might even
adversely affect the rights of individuals.

11.Lord Denning has stated that ‘properly exercised, the new powers of the executive
could lead to a welfare state but if abused could lead to a totalitarian state.’

12. Thus, administrative law is required to exercise a system of checks and balances
against such power.

13. The similarity between administrative law and constitutional law is to the extent
that both deal with functions of the government and both form a part of modern public
law.
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Differences may be discussed as follows

CONSTITUTIONAL LAW ADMINISTRATIVE LAW

1; It deals with the organs and functions of the state at rest.

It deals with the organs and such functions in motion.

2;It deals with the structure of the various organs of the state and regulates their
relation with each other and with individuals.

It deals with the functions of various organs of the state and controls the exercise of
powers by the executive.

3; It lays down fundamental and basic principles.

It fills in the details.

4; It is based on a written constitution.

It is based on statutes, precedent, etc.

15. However there are similarities between the two such as availability of constitutional
remedies, concern with affected rights of individuals or fundamental rights, etc.

16.As per several American and English authors the difference between the two is
more of degree, convenience and custom rather than that of logic and principle.

Or

Constitutional Law and Administrative Law:

Sometimes, a question is asked as to whether there is any distinction between

constitutional law and administrative law. Till recently, the subject of administrative
law was dealt with and discussed in the books of constitutional law and no separate
and independent treatment was given to it. In many definitions of administrative law,
it was included in constitutional law. Though in essence constitutional law does not
differ from administrative law inasmuch as both are concerned with functions of the
Government and both are a part of public law in the modern State and the sources of
both are the same and they are thus inter-related and complementary to each other
belonging to one and the same family. Strict demarcation, therefore, is not possible,
yet there is a distinction between the two. According to Maitland, while constitutional
law deals with structure and the broader rules which regulate the functions, the details
of the functions are left to administrative law. According to Hood Phillips,
“Constitutional law is concerned with the organization and functions of Government at
rest whilst administrative law is concerned with that organization and those functions
in motion.” But the opinion of English and American authors is that the distinction
between constitutional law and administrative law is one of degree, convenience and
custom rather than that of logic and principle. It is not essential and fundamental in
character. Keith rightly remarks: “It is logically impossible to distinguish administrative
5

law from constitutional law and all attempts to do so are artificial.” India has a
written Constitution. While constitutional law deals with the general principles relating
to the organization and power of the legislature, executive and judiciary and their
functions inter se and towards the citizen, administrative law is that part of
constitutional law which deals in detail with the powers and functions of the
administrative authorities, including civil services, public departments, local authorities
and other statutory bodies. Thus, while constitutional law is concerned with
constitutional status of ministers and civil servants, administrative law is concerned
with the organization of the service and the proper working of various departments of
the Government.

Reasons for Growth of Administrative Law:

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

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

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

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

2. Urbanization - Due to the Industrial Revolution in England and other countries and
due to the emergence of the factory system in our country, people migrated from the
countryside to the urban areas in search of employment in factories and large scale
industries. As a result of which there arose a need for increase in providing housing,
roads, parks, effective drainage system etc. Legislations were enacted to provide all
these basic facilities and accordingly administrative authorities were required to make
rules and regulations, frame schemes for effective infrastructure and facilities which
ultimately lead to the growth of administrative law.

3. To meet Emergency Situations – Enacting legislations, getting assent from the

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

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

5. The legislative process was also inadequate. It had no time and technique to deal with
all the details. It was impossible for it to lay down detailed rules and procedures, and
even when detailed provisions were made by the legislature, they were found to be
defective and inadequate, e.g., rate fixing. And, therefore, it was felt necessary to
delegate some powers to the administrative authorities.

6. There is scope for experiments in administrative process. Here, unlike legislation, it is

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

7. The administrative authorities can avoid technicalities. Administrative law represents

functional rather than a theoretical and legalistic approach. The traditional judiciary is
conservative, rigid and technical. It is not possible for the courts to decide the cases
without formality and technicality. The administrative tribunals are not bound by the
rules of evidence and procedure and they can take a practical view of the matter to
decide complex problems.

8. Administrative authorities can take preventive measures, e.g. Licensing, rate fixing, etc.
Unlike regular courts of law, they have not to wait for parties to come before them
with disputes. In many cases, these preventive actions may prove to be more effective
and useful than punishing a person after he has committed a breach of any provision
or law. As Freeman says, "Inspection and grading of meat answers the consumer's
need more adequately than does a right to sue the seller after the consumer is
injured."

9. Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures; e.g. suspension, revocation and cancellation of licences,
destruction of contaminated articles, etc. which are not generally available through
regular courts of law.

Separation of Powers:

1. The doctrine of separation of powers was given by French jurist and philosopher
Montesquieu.

2. This doctrine has 3 meanings, namely(a) The same person cannot be a member of
more than one organ of the government. (b) One organ of the government cannot
control or interfere with the functions of the other. (c) One organ of the government
cannot perform the functions of another.

3. This doctrine was theoretically very sound but posed certain practical problems such
as(a) Its historical basis which describes separation of powers as thriving in England
is faulty. (b) It is based on the assumption that all 3organs of the government have
completely distinct powers. This is wrong as any one organ of the government
performs at least some of the functions of the other two. (c) Also, complete separation is
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neither practical nor desirable. If the legislature were only to legislate, it could not
punish anyone for its contempt. (d) Modern state is a welfare state characterised by
complex socio-economic problems and the same cannot be solved with complete
separation. (e) The primary aim of this doctrine was to ensure greater freedom for the
people and strict separation may not necessarily ensure the same.

4. This doctrine is used more in the form of a system of checks and balances these
days wherein every organ of the government performs some functions of the other 2
organs, thereby exercising a check on arbitrary use of power.

5. This doctrine may be unreasonable and impractical but it has helped in building a
system of checks and balances.

6. This doctrine has been used in a strict sense in the US wherein legislative powers
rest with the Congress, executive powers with the President and judicial powers with
the Supreme Court and the subordinate courts. All three organs exercise a system of
checks and balances on each other and no one organ can encroach upon the power of
another.

7. Although Montesquieu developed his theory based on the British constitution, at no

point of time has there been strict separation in the UK in spite of there being three
different organs having three different functions which may even overlap at times. An
example may be given of the Lord Chancellor who is the head of the judiciary, is the
chairman of the House of Lords which is the legislature, is a member of the
executive and is generally part of the cabinet.

8. In India although this doctrine has been implicitly set out in the constitution and
forms part of the basic structure of the constitution, there is no complete separation of
functions as such in spite of there being a scheme for separation of powers. The same
is not practically possible as well.

Or

“Doctrine of separation of powers is structural rather than functional.” Examine its impact on
development of administrative law in India.

Introduction : According to Jain and Jain, “If the ‘Rule of Law’, as enunciated by
Dicey, affected the growth of Administrative Law in Britain, the doctrine of
‘Separation of Powers’ had an intimate impact on the development of Administrative
Law in USA.” Davis also stated, “Probably, the principal doctrinal barrier to the
development of the administrative process has been the theory of separation of
powers."

Meaning:It is generally accepted that there are three main categories of governmental
functions – Legislative, Executive, and Judicial. Likewise, there are three main organs
of the Government in a State - Legislature, Executive and Judiciary. According to the
theory of separation of powers, these three powers and functions of the Government
must, in a free democracy, always be kept separate and be exercised by three separate
organs of the Government. Thus, the Legislature cannot exercise executive or judicial
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power; the Executive cannot exercise legislative or judicial power and the Judiciary
cannot exercise legislative or executive power of the Government.

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

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

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

3. It is impossible to take certain actions if this doctrine is accepted in its entirety.

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

4. Modern State is a welfare State and it has to solve complex socio-economic

problems and in this state of affairs also, it is not possible to stick to the doctrine.

5. The modern interpretation of the doctrine of Separation of Powers means that

discretion must be drawn between ‘essential’ and ‘incidental’ powers and one organ of
the Government cannot usurp or encroach upon the essential functions belonging to
another organ, but may exercise some incidental functions thereof.

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

Importance : On the whole, the doctrine of Separation of Powers in the strict sense is
undesirable and impracticable and, therefore, it is not fully accepted in any country.
Nevertheless, its value lies in the emphasis on those checks and balances which are
necessary to prevent an abuse of enormous powers of the executive. The object of the
doctrine is to have “a Government of Law rather than of official will or whim.”
Montesquieu's great point was that if the total power of the government is divided
among autonomous organs, one will act as a check upon the other and in the check
liberty can survive. Again, almost all the jurists accept one feature of this doctrine
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that the judiciary must be independent of andseparate from the remaining two organs
of the Government, viz., Legislature and Executive

Separation of Powers in India:On a casual glance at the provisions of the

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

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

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

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

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

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

Rule of Law

1. Rule of law is a basic principle of the British constitution and has even been
adopted by the Indian and US constitutions. It forms the entire basis for administrative
law.

2. It was first stated by Sir Edward Coke and the law who stated that the King
cannot be above God and thus upheld the supremacy of the law over the executive.

3. It was further developed by Dicey who stated that ‘rule of law means the absolute
supremacy or predominance of regular law as opposed to influence of arbitrary power
and excludes the existence of arbitrariness of predominance, or even wide discretionary
authority on the part of the government.’

4. Dicey gave 3 meanings to this doctrine namely- supremacy of the law, equality
before law and predominance of legal spirit.

5. Supremacy of the law- This means that no man may be punished without due
process of law for an established breach of the law in the ordinary legal manner in
the ordinary courts of law. It also means that administrative discretion leads to
arbitrariness and thus the same should be avoided. The law is supreme and even the
administration is under the law.

6. Equality before law- This means that every citizen must be subject to one and the
same body of law which is the ordinary law of the land administered by the ordinary
courts of the land. Dicey criticised the principle of Droit Administrative as in the
French legal system which provided for separate tribunals for settlement of disputes
between the government and individuals. He saw this as a negation of the principle of
the rule of law as it took away the jurisdiction of the courts and subject government
officials to a law different from that which the general public was subjected to. Also,
it allowed the administration to adjudicate upon matters which was primarily a function
of the judiciary.

7. Predoqminance of legal spirit- As per Dicey it is the courts which enforce rights of
individuals while a written constitution merely declares such rights. Thus, the
constitution is not the source but only a consequence of legal rights. It was
emphasised that in order for rights to be secured, enforcement by courts was required
rather than a mere declaration whereby such rights could easily be trampled upon. He
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used the example of the various Habeas Corpus Acts which actually went ahead to
talk of the enforcement of rights rather than defining them.

8. One of the merits of Dicey’s theory was that it helped exercise a check on
executive powers and kept administrative authorities within their limits. It became a
touchstone to judge administrative acts.

9. However, even during Dicey’s time in 1885 there were several acts which
conferred wide discretionary powers on the executive without allowing any sort of
judicial review, thereby contravening this doctrine.

10.One of the major drawbacks of this theory lies in the fact that discretionary
powers are regarded as being arbitrary and in a modern welfare state, administrative
discretion is indispensible.

11. Another drawback is a presumption made by Dicey about the judiciary being the
solution to all suits. His mistrust over the system of Droit Administratiff in France
was wrong as this system exercised checks in a much better manner than the
judiciary. The Counseil d’ Etat which exercised judicial control over the administration
was infect a part of the administration itself while being a court in reality.

12.Dicey’s rule of law however has been identified in democracies across the world
with rights of the people. The International Commission of Jurists in their Delhi
Declaration, 1959 accepted the idea of rule of law as the modern form of law of
nature.

. 13.Though Dicey’s original rule of law cannot be accepted in totality, the modern
rule of law as given by Davis has the following 7 connotations(a) Law and order (b)
Fixed rules (c) Due process or fairness (d) Elimination of discretion (e) Principles of
natural justice (f) Preference to ordinary courts over administrative tribunals (g) Judicial
review of administrative actions

14. Rule of law is a part of the basic structure of the Indian constitution. A few
examples of where it may be seen in the constitution are as follows(a) The preamble
talks about justice, liberty and equality. (b) There is provision for judicial review by
the SC and the HC s for the enforcement of fundamental rights. (c) If there is any
abuse of power by the executive, the same may be challenged on the grounds of
malafide, etc. Before a court of law. (d) Art. 21 provides that no person shall be
deprived of his life or personal liberty except in accordance with procedure established
by law. This brings in the principles of natural justice especially after the Maneka
Gandhi case. (e) Art. 13 provides that all rules, ordinances, by-laws, orders, etc. would
be regarded as ‘law’ and could thus be subjected to judicial review. (f) The
Constitution is supreme and all three organs of the government are below the
constitution. (g) In India there is no rule of the King can do no wrong. (h) Art. 14
talks about equality before law and equal protection of the law. Even the state and its
officials are liable in torts and contracts and if any wrong is committed by an
employee of the state, the state may be made liable for such act.

15. However, in several areas, there exists a great deal of executive interference. This
is primarily due to excessive delegation of powers by the legislature and the judiciary
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to the executive. Also, the executive has been given wide discretionary powers. Further, it is
not just the executive but even the legislature which by passing demonic acts such as
the Prevent Detention Act or the Maintenance of Internal Security Act encroaches
upon the rights of the people.

16. In Chief Commissioner, Punjab v. Om Prakash, it was held that the rule of law is a
characteristic feature of the constitution by which the judiciary may question any
administrative action on the ground of legality especially when there is a violation of
fundamental rights.

17. in ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), the freedoms under Art. 19
were suspended and enforceability of Art’s 14, 21 and 22 was suspended during
emergency. Several persons were detained and they approached the courts by filing
writ petitions asking the courts to issue writs of habeas corpus. The majority held in
this case that Art. 21 of the Constitution is the rule of law as far as the Indian
constitution is considered and as the enforceability of the same is suspended, it
cannot be enforced. This was an erroneous judgment and J. Khanna in his dissenting
judgment stated that the rule of law is the antithesis of arbitrariness. The right to life
and personal liberty as enshrined in Art. 21 is inherent in all human beings and thus no
person may be deprived of his life and personal liberty even by state action of
suspending such right.

or

Dicey’s thesis of Rule of law and analyse as to how the rule of law is one of the
basic features of the Indian Constitution.

Introduction : Dicey evolved the concept of Rule of Law while he was delivering
lectures to the law students in Oxford University, England. The concept of Rule of
Law can be traced from the time of the Romans, who called it ‘Just Law’, to the
Medieval period where it was called the ‘Law of God.’ The social contractualists,
such as Hobbes, Locke and Rousseau, called the Rule of Law as the Natural Law.

Meaning

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

1. Supremacy of law;

2. Equality before law; and

3. Predominance of legal spirit.

1:Supremacy of law:Explaining the first principle, Dicey stated that rule of law means
the absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power or wide discretionary power. It excludes the existence of arbitrariness,
of prerogative or even wide discretionary power on the part of the Government.
According to him the Englishmen were ruled by the law and law alone. A man may
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be punished for a breach of law, but can be punished for nothing else. As Wade says
the rule of law requires that the Government should be subject to the law, rather than
the law subject to the Government. According to this doctrine, no man can be
arrested, punished or be lawfully made to suffer in body or goods except by due
process of law and for a breach of law established in the ordinary legal manner
before the ordinary courts of the land. Dicey described this principle as ‘the central
and most characteristic feature’ of Common Law.

2.Equality before law::Explaining the second principle of the rule of law, Dicey stated
that there must be equality before the law or the equal subjection of all classes to the
ordinary law of the land administered by the ordinary law courts. According to him,
in England, all personswere subject to one and the same law, and there were no
separate tribunals or special courts for officers of the Government and other
authorities.

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

According to Dicey, any encroachment on the jurisdiction of the courts and any
restrictions on the subject's unimpeded access to them are bound to jeopardize his
rights.

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

Application of Doctrine

In England, the doctrine of the rule of law was applied in concrete cases. If a man
is wrongfully arrested by the police, he can file a suit for damages against them as if
the police were private individuals. In Wilkes v. Wood, it was held that an action for
damages for trespass was maintainable even if the action complained of was taken in
pursuance of the order of the Minister. In the leading case of Entick v. Carrington, a
publisher's house was ransacked by the King’s messengers sent by the Secretary of
14

State. In an action for trespass, £300 were awarded to the publisher as damages. In
the same manner, if a man's land is compulsorily acquired under an illegal order, he
can bring an action for trespass against any person who tries to disturb his possession
or attempts to execute the said order.

Merits

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

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

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

The third principle puts emphasis on the role of judiciary in enforcing individual
rights and personal freedoms irrespective of their inclusion in a written Constitution.
Dicey feared that mere declaration of such rights in any statute or in Constitution
would be futile if they could not be enforced. He was right when he said that a
statute or even Constitution can be amended and ‘Fundamental Rights’ can be
abrogated. We have witnessed such a situation during the emergency in 1975 and
realized that in absence of strong and powerful judiciary, a written Constitution is
meaningless.

Pitfalls

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

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

Again, it cannot be said that once law ends, necessarily tyranny begins. As David
said, ‘where the law ends, discretion begins.’ Exercise of discretion may mean either
beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness.
15

It is impossible to find a government of laws alone and not of men in the sense of
eliminating all discretionary powers.

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

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

Rule of Law under Constitution of India:

Dicey’s rule of law has been adopted and incorporated in the Constitution of India.
The Preamble itself enunciates the ideals of Justice, Liberty and Equality. In Part III of the
Constitution these concepts are enshrined as Fundamental Rights and are made
enforceable. The Constitution is supreme and all the three organs of the Government,
viz. Legislature, Executive and Judiciary are subordinate to and have to act in
consonance with the Constitution. The doctrine of judicial review is embodied in the
Constitution and the subjects can approach the High Courts and the Supreme Court
for the enforcement of Fundamental Rights guaranteed under the Constitution. If the
executive or the Government abuses the power vested in it or if the action is mala
fide, the same can be quashed by the ordinary courts of law.

All rules, regulations, ordinances, bye-laws, notifications, customs and usages are
‘laws’ within the meaning of Article 13 of the Constitution and if they are
inconsistent with or contrary to any of the provisions thereof, they can be declared
ultra vires by the Supreme Court and by High Courts. The President and the Judges
of the Supreme Court and High Courts are required to take an oath to preserve,
protect and defend the Constitution. No person shall be deprived of his life or
personal liberty except according to procedure established by law or of his property
save by authority of law. Executive and legislative powers of States and the Union
have to be exercised in accordance with the provisions of the Constitution.
Government and public officials are not above law. The maxim 'The King can do no
wrong' does not apply in India. There is equality before the law and equal protection of
laws. Government and public authorities are also subject to the jurisdiction of ordinary
courts of law and for similar wrongs are to be tried and punished similarly. They are
not immune from ordinary legal process nor is any provision made regarding separate
administrative courts and tribunals. In public service also the doctrine of equality is
accepted. Suits for breach of contract and torts committed by pubic authorities can be
filed in ordinary law courts and damages can be recovered from State Government or
16

Union Government for the acts of their employees. Thus, it appears that the doctrine
of rule of law is embodied in the Constitution of India, and is treated as the basic
structure of the Constitution.

In spite of such apparently enviable position of subjects, in almost all the fields of
industry, commerce, education, transport, banking, insurance, etc. there is interference
by administrative authorities with actions of individuals, companies and other corporate
and non-corporate bodies, observes Justice Ramaswamy. From the constitutional point
of view there is large-scale delegation of legislative and judicial powers to these
administrative authorities. These authorities have been extending their tentacles into
social, economic and political domains. Wide discretionary powers are conferred on these
administrative authorities. For the purpose of national planning, the Executive is armed
with vast powers in respect of land ceiling, control of basic industries, taxation,
mobilization of labour, etc. Further, it is also erroneous to believe that individual
liberty can be protected only by the traditional doctrine of rule of law. Experience
shows that not only the Executive but even Parliament elected by the people may
pass some demonic statutes like the Preventive Detention Act, or Maintenance of
Internal Security Act, 1971 (MISA), National Security Act, 1980 (NSA) and encroach
upon the liberty of subjects. Ultimately, as Prof. Harold Laski says: "Eternal vigilance
is the price of liberty" and not a particular principle or doctrine of law.

Droit administratiff:

Introduction : Under the French Legal system, known as droit administratif, there are
two types of laws and two sets of courts independent of each other. Where ordinary
courts administer ordinary civil law between subjects and subjects, administrative
courts administer the law between the subject and the State. An administrative
authority or official is not subject to the jurisdiction of ordinary civil courts exercising
powers under the civil law in disputes between private individuals. All claims and
disputes in which these authorities or officials are parties fall outside the scope of the
jurisdiction of ordinary courts and they are dealt with and decided by special
tribunals. Though the system of droit administratif is very old, it was regularly put
into practice by Napoleon in the 18th century.

If the French system did not adequately protect individuals against the State, it
would be a serious matter; but it was not so. The fact is that this system was able to
provide expeditious and inexpensive relief and better protection to citizens against
administrative acts or omissions than the Common Law system. Once rid of the
illusion that administrative courts must inevitably be biased, one can see that they
hold the keys to some problems which are insoluble under English Law.

Dicey unfortunately, misunderstood the French system and formed an opinion that
Administrative Courts in France extended Government Official special rights,
privileges and prerogatives against private citizens and it had resulted in miscarriage
of justice. Thereal position, however, was totally different. In France, administration was
under the control of ‘real Judges’, who were impartial and objective in true sense.
Actual study of droit administratif has proved that no single institution has done so
much for the protection of private citizens against the excesses of administration as
has been done by Counseild’Etat which was considered to be a model for other
countries.
17

Illustrations:

If an employee in a Government factory is injured by an explosion, according to the

administrative courts in France, the risk should fall on the State, but the English
courts will not hold the State liable unless the injured proves negligence of some
servant of the Crown. Thus, English Courts still apply the conservative and traditional
approach that there should be no liability without fault; French administrative courts
adopt a pragmatic approach that ‘justice requires that the State should be responsible
to the workman for the risk which he runs by reason of his part in the public
service.’

When a passer-by chased a thief and was stabbed, the Conseild'Etat held that he was
entitled to recover damages from the State which would not have been done under
English Law. Similarly, as the French administrative courts are recognized as
guardians of public servants, the latter also get better protection from their employers.
Thus, where a Rector of Strasbourg Academy was asked to take up some other duties
and relieved from his post without in fact new duties being assigned to him, the
administrative court held that he was removed from service and gave him redress.
According to Lord Denning, in England, ordinary courts of law could not have
protected him because as a rule, public servants can be dismissed by the Crown at
pleasure.

Under the Act of 1872, the French Government had a right to have a monopoly of
manufacturing matches and for that purpose it could acquire the factories run by
private persons. A provision to pay compensation for compulsory acquisition was also
made in the Act. However, if a factory was ordered to be closed on the ground of
improvement of health, no compensation was required to be paid. In one case, an
order to close the factory was passed by a Minister on the ground of improvement of
health, but in reality, the motive was to avoid payment of compensation to the owner
of the factory. An ordinary court could not have given any redress to the owner in
such case, but the Conseild'Etat held that the power was abused by the Minister and
awarded £20,000 to the factory owner.

Barel case: The Minister in charge did not permit certain candidates to appear at the
civil service examination. It was reported in the newspaper that the Government had
refused permission to candidates who were Communists. The Minister, however, denied
it. The candidates approached Conseild'Etat, which quashed the order, since no reasons
were recorded by the Minister for refusing such permission. The Conseil presumed
that there were no reasons which would justify such a refusal. Thus, the Conseild'Etat
took the view in 1954 which was taken by English Courts in 1968.

Fortune case: A wanted to appear at a competitive examination. He was not permitted to

appear on the ground that his confidential file contained certain adverse remarks. In
an action by A, Conseild’Etat, went through the records and called upon the Secretary
to justify the order. The Secretary pleaded that it was an 'Act de Government' (Act of
State) and that the court had no jurisdiction to deal with the matter. He did not
produce any document. The court passed an order to produce the entire file relating to
the matter, went through it and quashed the order. In England, governed by the Rule
of Law one cannot conceive of such a situation, for the ordinary courts of law have
18

no right to interfere with any ‘Act of State’ or with ministerial discretion nor can
they have access to secret documents.

Counseild'Etat also applied the doctrine of legitimate expectation (protectio de la

confiancelegitime) recognized by European Court of Justice (ECJ). It held that
administration must be careful not to create a situation adversely affecting innocent
persons by unexpected change in the rules applied, or in its behaviour, unless such
sudden change is necessitated by public interest. Administration is entitled to change
its decisions, but it must take appropriate steps to ensure that those likely to be
affected are informed before-hand.

UNIT 2

CLASSIFICATION OF ADMINISTRATIVE ACTIONS:

Discuss the various classifications of administrative actions. Why is such a classification

essential?

Introduction : There are three organs of the Government – the Legislature, the
Executive and the Judiciary. The function of the legislature is to enact the law; the
executive is to administer the law and the judiciary is to interpret the law and to
declare what the law is.

But as observed by the Supreme Court in JayantilalAmratlal v. F. N. Rana it cannot

be assumed that the legislative functions are exclusively performed by the legislature,
executive functions by the executive and judicial functions by judiciary. In Halsbury's
Laws of England also, it is stated that howsoever term ‘the Executive’ or ‘the
Administration’ is employed, there is no implication that the functions of the
executive are confined exclusively to those of executive or administrative character.

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

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

Classification of Administrative Actions: The classification of Administrative Actions is

discussed below.

1: Legislative Functions:

Legislative functions of the executive consist of making rules, regulations, bye-laws,

etc. It is, no doubt, true that any attempt to draw a distinct line between legislative
and administrative functions is difficult in theory and impossible in practice. Though
difficult, it is necessary that the line must be drawn as different legal rights and
consequences ensue. As Schwartz said, “If a particular function is termed ‘legislative’
or ‘rule-making’ rather than ‘judicial’ or ‘adjudication’, it may have substantial effects
upon the parties concerned. If the function is treated as legislative in nature, there is
no right to a notice and hearing unless a statute expressly requires them.”
19

In the leading case of Bates v. Lord Hailsham, Megarry, J. observed that “the rules of
natural justice do not run in the sphere of legislation, primary or delegated.” Wade
alsosaid, “There is no right to be heard before the making of legislation, whether
primary or delegated, unless it is provided by statute.” Fixation of price, declaration of
a place to be a market yard, imposition tax, establishment of Municipal Corporation
under the statutory provision, extension of limits of a town area committee, etc. are
held to be legislative functions.

2:Judicial Functions’ According to the Committee on Ministers’ Powers, a pure judicial

function presupposes an existing dispute between two or more parties and it involves
four requisites :

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

2. If the dispute is a question of fact, the ascertainment of fact by means of

evidence adduced by the parties to the dispute and often with the assistance of
argument by or on behalf of the parties, on evidence;

3. If the dispute between them is a question of law, the submission of legal

argument by the parties; and

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

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

3: Quasi – Judicial Functions

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

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

dispute between two or more parties and involves (1) and (2) above but does not
necessarily involve (3) and never involves (4). The place of (4) is, in fact, taken by
administrative action, the character of which is determined the Minister's choice.

For instance, suppose a statute empowers a Minister to take action if certain facts are
proved, and in that event gives him an absolute discretion whether or not to take
action. In such a case, he must consider the representations of parties and ascertain
the facts – to that extent the decision contains a judicial element. But, the facts once
ascertained, his decision does not depend on any legal or statutory direction, for ex
20

hypothesi he is left free within the statutory boundaries to take such administrative
action as he may think fit: that is to say that the matter is not finally disposed of by
the process of (4).

This test has, however, been subject to criticism by jurists. It does not give a complete
and true picture. It is based on a wrong hypothesis. The Committee characterized the
judicial function as being devoid of any discretionary power but obliged to merely
apply the law to the proved facts. In reality, it is not so. The courts of law also exercise
discretion. It may be more persuasive in administrative actions than in judicial
functions but the difference is of degree only. A quasi-judicial function stands mid-
way between a judicial function and an administrative function. A quasi-judicial
decision is nearer the administrative decision in terms of its discretionary element and
nearer the judicial decision in terms of procedure and objectivity of its end-product.

It is also not true that in all quasi-judicial decisions, two characteristics are common
1. Presentation of their case by the parties; and

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

Firstly, in many cases, the first characteristic is absent and the authority may decide
a matter not between two or more contesting parties but between itself and another
party, e.g. An authority effecting compulsory acquisition of land. Here the authority itself
is one of the parties and yet it decides the matter. It does not represent its case to any
court or authority. Secondly, there may be cases in which no evidence is required to
be taken and yet the authority has to determine the questions of fact after hearing the
parties, e.g. Ratemaking or price-fixing. Thirdly, after ascertainment of facts, unlike a
regular court, an authority is not bound to apply the law to the facts so ascertained,
and the decision can be arrived at according to considerations of public policy or
administrative discretion, which factors are unknown to an ordinary court of law.

4: Administrative Functions: In Ram Jawaya v. State of Punjab, the Supreme Court

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

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

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

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

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

3. An administrative authority is not bound by the rules of evidence and procedure

unless the relevant statute specifically imposes such an obligation.
21

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

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

5. Administrative functions may be delegated and sub-delegated unless there is a

specific bar or prohibition in the statute.

6. While taking a decision, an administrative authority may not only consider the
evidence adduced by the parties to the dispute, but may also use its discretion.

7. An administrative authority is not always bound by the principles of natural justice

unless the statute casts such duty on the authority, either expressly or by necessary
implication or it is required to act judicially or fairly.

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

unreasonableness.

9. An administrative action will not become a quasi-judicial action merely because it

has to be performed after forming an opinion as to the existence of any objective
fact.

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

Need for Classification:A question which arises for our consideration is whether the
function performed by the executive authorities are purely administrative, quasi-judicial
or quasi-legislative in character. The answer is indeed difficult, as there is no precise,
perfect and scientific test to distinguish these functions from one another.
Administrative and quasi-judicial decisions tend to merge in legislative activity and,
conversely, legislative activity tends to fade into and present an appearance of an
administrative or quasi-judicial activity. A further difficulty arises in a case in which a
single proceeding may at times combine various aspects of the three functions. The
courts have not been able to formulate any definite test for the purpose of making
such classification. Yet, such classification is essential and inevitable as many
consequences flow from it, e.g. if the executive authority exercises a judicial or quasi-
judicial function, it must follow the principles of natural justice and is amenable to a
writ of certiorari or prohibition, but if it is a legislative or quasi-legislative function,
natural justice has no application. If the action of the executive authority is legislative
in character, the requirement of publication, laying on the table, etc. should be
complied with, but it is not necessary in the case of a pure administrative action.
Again, if the function is administrative, delegation is permissible, but if it is judicial,
it cannot be delegated. An exercise of legislative power may not be held invalid on
the ground of unreasonableness, but an administrative decision can be challenged as
being unreasonable. It is, therefore, necessary to determine what type of function the
administrative authority performs.

Discuss the differences between ‘judicial function’ and ‘quasi-judicial function.’

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

respects
22

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

2. A lis inter partes is an essential characteristic of a judicial function, but this may
not be true of a quasi-judicial function.

3. A court is bound by the rules of evidence and procedure while a quasi-judicial

authority is not.

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

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

The distinction between judicial and quasi-judicial functions rests mainly on the fact
that in deciding cases, courts apply pre-existing law whereas administrative authorities
exercise discretion. This is, however, fallacious. ‘The most that can be said is that
the discretions of the courts may differ in nature and extent from the discretions of
the administrator. Nevertheless, the asserted discretion is reduced to one of degree
only.’

Distinction between Administrative and Quasi-Judicial Functions:

General

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

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

Object

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

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

Lis

To appreciate the distinction between administrative and quasi-judicial functions, we

have to understand two expressions (i) ‘lis’, and (ii) ‘quasi-lis’

One of the major grounds on which a function can be called ‘quasi-judicial’ as

distinguished from pure ‘administrative’ is when there is a lis inter parte and an
administrative authority is required to decide the dispute between the parties and to
adjudicate upon the lis. Prima facie, in such cases the authority will regarded as
acting in a quasi-judicial manner.
23

Certain administrative authorities have been held to be quasi-judicial authorities and

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

Quasi-lis

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

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

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

Duty to act judicially

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

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

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

Generally, statutes do not expressly provide for the duty to act judicially and,
therefore, even in the absence of express provisions in the statutes the duty to act
judicially should be inferred from ‘the cumulative effect of the nature of the rights
24

affected, the manner of the disposal provided, the objective criterion to be adopted,
the phraseology used, the nature of the power conferred, of the duty imposed on the
authority and the other indicia afforded by the statute.

Duty to Act Fairly

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

Cases

Province of Bombay v. Khushaldas S. Advani was the first leading Indian decision on
the point. Under Section 3 of the Bombay Land Requisition Ordinance, 1947, the
Provincial Government was empowered to requisition any land for any public purpose
“if in the opinion of the Government” it was necessary or expedient to do so. It was
contended that the Government while deciding whether requisition was for a public
purpose, had to act judicially. The High Court of Bombay upheld the said contention.
Reversing the decision of the High Court, the Supreme Court held by a majority that
the governmental function of requisitioning property was not quasi-judicial, for the
decision was based on the subjective satisfaction of the Government and it was not
required to act judicially.

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

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

Test

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

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

The requirement of acting judicially in essence is nothing but a requirement to act

justly and fairly and not arbitrarily or capriciously. The procedures which are
considered inherent in the exercise of quasi-judicial power are merely those which
facilitate if not ensure a just and fair decision. In recent years, the concept of quasi-
judicial power has been undergoing a radical change. What was considered as an
administrative power some years back is now being considered as a quasi-judicial
power.
25

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

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

At one time prerogative remedies of certiorari and prohibition were confined to

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

DELEGATED LEGISLATION (GENERAL PRINCIPLES)

What is delegated legislation? Enumerate the factors contributing to the growth of

delegated legislation.

Introduction : According to the traditional theory, the function of the executive is to

administer the law enacted by the legislature, and in the ideal State, the legislative
power must be exercised exclusively by the legislators who are directly responsible to
the electorate. But, in truth, apart from ‘pure’ administrative functions, the executive
performs many legislative and judicial functions also. It has, therefore, been rightly
said that the delegated legislation is so multitudinous that a statute book would not
only be incomplete but misleading unless it be read along with delegated legislation
which amplifies and supplements the law of the land.

Definitions

It is very difficult to give any precise definition of the expression ‘delegated

legislation.’ It is equally difficult to state with certainty the scope of such delegated
legislation. Mukherjea, J. rightly says: ‘Delegated legislation is an expression which
covers a multitude of confusion. It is an excuse for the legislators, a shield for the
administrators and a provocation to the constitutional jurists…’

According to Salmond, legislation is either supreme or subordinate. Whereas the former

proceeds from sovereign or supreme power, the latter flow from any authority other
than the sovereign power, and is, therefore, dependent for its existence and
continuance on superior or supreme authority. Delegated legislation thus is a legislation
made by a body or person other than the Sovereign in Parliament by virtue of powers
conferred by such sovereign under the statute.

A simple meaning of the expression ‘delegated legislation’ may be given as: ‘When
the function of legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is called delegated legislation.’

Growth of Delegated Legislation

No doubt, it is the twentieth century which has witnessed rapid growth of delegated
legislation in almost all legal systems of the world. But that does not mean that it is
a new phenomenon or that there was no delegation of legislative power by Legislature
26

toExecutive in the past. Ever since statute came to be enacted by Parliament, there
was delegation of legislative function. The statute of 1337 contained a clause which
made it felony to export wool, unless it was ordained by the King and his Council.
In fifteenth and sixteenth centuries, there was frequent use of Henry VIII Clause. The
Statute of Sewers of 1531 empowered Commissioners to make, re-make, repeal and
amend laws, to pass decrees and to levy cess. Thus, the Commissioners used to
exercise legislative, administrative and judicial powers at a time. Mutiny Act, 1717
conferred on the Crown power to legislate for the Army without the aid of
Parliament. In nineteenth century, delegated legislation became more common and
considerably increased due to social and economic reforms. In the twentieth century,
output of delegated legislation by executive is several times more than the output of
enactments by a competent legislature.

Reasons for Growth of Delegated Legislation

Many factors are responsible for the rapid growth of delegated legislation in every
modern democratic State. The traditional theory of ‘laissez faire’ has been given up
by every State and the old ‘police State’ has now become a ‘welfare State.’ Because
of this radical change in the philosophy as to the role to be played by the State, its
functions have increased. Consequently, delegated legislation has become essential and
inevitable.

Pressure upon Parliamentary Time

As a result of the expanding horizons of State activity, the bulk of legislation is so

great that it is not possible for the legislature to devote sufficient time to discuss all
the matters in detail. Therefore, legislature formulates the general policy and empowers
the executive to fill in the details by issuing necessary rules, regulations, bye-laws,
etc. In the words of Sir Cecil Carr, delegated legislation is “a growing child called
upon to relieve the parent of the strain of overwork and capable of attending to
minor matters, while the parent manages the main business.”

Technicality

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

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

Flexibility

At the time of passing any legislative enactment, it is impossible to foresee all the
contingencies, and some provision is required to be made for these unforeseen
situations demanding exigent action. A legislative amendment is a slow and
cumbersome process, but by the device of delegated legislation, the executive can
meet the situation expeditiously, e.g. bank-rate, police regulation export and import,
foreign exchange, etc.For that purpose, in many statutes, a ‘removal of difficulty’
27

clause is found empowering the administration overcome difficulties by exercising

delegated power.

Experiment

The practice of delegated legislation enables the executive to experiment. This method
permits rapid utilization of experience and implementation of necessary changes in
application of the provisions in the light of such experience, e.g. in road traffic
matters, an experiment may be conducted and in the light of its application necessary
changes could be made. Delegated legislation thus allows employment and application of
past experience.

Emergency

In times of emergency, quick action is required to be taken. The legislative process

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

Complexity of Modern Administration

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

Conclusion : There has, therefore, been rapid growth of delegated legislation in all
countries and it has become indispensable in the modem administrative era.

Permissible Delegation: The following functions may be delegated by the Legislature

to the Executive:

Commencement

Several statutes contain an ‘appointed day’ clause, which empowers the Government
to appoint a day for the Act to come into force. In such cases, the operation of the
Act depends on the decision of the Government e.g. Section 1(3) of the Consumer
Protection Act, 1986 provides that the Act ‘shall come into force on such date as the
Central Government may by notification appoint.’ The Legal Services Authorities Act,
1987 was brought into force only in 1997. Here the Act comes into force when the
notification is published in the Official Gazette. Such a provision is valid for, as Sir
28

Cecil Carr remarks. “the legislature provides the gun and prescribes the target, but
leaves to the executive the task of pressing the trigger".

Supplying Details

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

details may be delegated to the executive for giving effect to the policy. This is the
most usual form of delegation and is found in several statutes. In all such cases, a
legislation enacted by the Legislature is ‘skeleton legislation’ and the legislature lays
down general principles in the statute. What is delegated here is an ancillary function
in aid of the exercise of the legislative function e.g. Section 3 of the All India
Services Act, 1951 authorizes the Central Government to make rules to regulate
conditions of service in the All India Services

. The Committee on Ministers' Powers, however, was conscious of dangers of such

provision and had rightly commented: “The precise limits of the law-making power
which Parliament intends to confer on a Minister should always be defined in clear
language by the statue which confers it; when discretion is conferred its limits,
should be defined with equal clearness.”

Inclusion

Sometimes, the legislature passes an Act and makes it applicable, in the first
instance, to some areas and classes of persons, but empowers the Government to
extend the provisions thereof to different territories, persons or commodities, etc., e.g.,
the Transfer of Property Act, 1882 was made applicable to the whole of India except
certain areas, but the Government was authorized to apply the provisions of the Act
to those areas also. Likewise, the Essential Commodities Act, 1955 was made
applicable to certain specified commodities but empowered the Central Government to
declare any other commodity as an ‘essential commodity’ and to make the Act
applicable to such commodity. In the same manner, the Dourin Act, 1910 was made
applicable to horses in the first instance but by Section 2(2), the Government was
authorized to extend the provisions of the Act to asses as well. By Section 146 of
the Indian Railways Act, 1890, the Government was authorized to apply the provisions
to tramways.This device provides flexibility to law without interfering with legislative
policy.

Exclusion

There are some statutes which empower the Government to exempt from their
operation certain persons, territories, commodities, etc. Section 36 of the Payment of
Bonus Act, 1965 empowers the Government to exempt any establishment or a class of
establishments from the operation of the Act. Such provision introduces flexibility in the
scheme of the legislation. The Legislature which is burdened with heavy legislative
work is unable to find time to consider in detail hardships and difficulties likely to
result in enforcing the legislation. Such power can be exercised by executive in public
interest.

Suspension :Some statutes authorize the Government to suspend or relax the provisions
contained therein, e.g. under Section 48(1) of the Tea Act, 1953, the Central
29

Government is empowered under certain circumstances to suspend the operation of all

or any of the provisions of the said Act.

Application of existing laws

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

Modification

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

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

2. the danger or risk of misuse of such power by the executive, It is, therefore,
necessary for the legislature to formulate policy in clear and unambiguous terms
before such power is delegated to the administration.

Prescribing Punishments

In some cases the legislature delegates to the executive the power to take punitive
action, e.g. under Section 37 of the Electricity Act, 1910, the Electricity Board is
empowered to prescribe punishment for breach of the provisions of the Act subject to
the maximum punishment laid down in the Act. By Section 59(7) of the Damodar
Valley Act, 1948, the power to prescribe punishment is delegated to a statutory
authority without any maximum limit fixed by the parent Act.

According to the Indian Law Institute, this practice is not objectionable, provided two
safeguards are adopted: 1. the legislature must determine the maximum punishment
which the rule-making authority may prescribe for breach of regulations; and 2. if such
power is delegated to any authority other than the State or Central Government, the
exercise of the power must be subject to the previous sanction or subsequent approval
of the State or Central Government.

Framing of Rules

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

unconstitutional, provided that the rules, bye-laws and regulations are required to be
laid before the legislature before they come into force and provided further that the
legislature has power to amend, modify or repeal them.
30

Henry VIII clause (Removal of difficulties)

Power is sometimes conferred on the Government to modify the provisions of the

existing statutes for the purpose of removing difficulties. When the legislative passes
an Act, it cannot foresee all the difficulties which may arise in implementing it. The
executive is, therefore, empowered to make necessary changes to remove such
difficulties. Such provision is also necessary when the legislature extends a law to a
new area or to an area where the socio-economic conditions are different Generally,
two types of ‘removal of difficulties’ clauses are found in statutes. A narrow one,
which empowers the executive to exercise the power of removal of difficulties
consistent with the provisions of the parent Act; e.g. Section 34(1) of the
Administrative Tribunals Act, 1985 reads thus: “If any difficulty arises in giving effect
to the provisions of this Act, the Central Government may, by an order published in
the Official Gazette, make such provisions not inconsistent with the provisions of this
Act as appear to it to be necessary or expedient for removing the difficulty.”

Such a provision is not objectionable. According to the Committer Ministers’ Powers,

the sole purpose of Parliament in enacting such a provision is ‘to enable minor
adjustments of its own handiworks to be made for the purpose of fitting its principles
into the fabric of existing legislation, general or local.’ Sir Cecil Carr rightly says,
“the device is partly a draftsman’s insurance policy in case he has overlooked
something, and partly due to the immense body of local Acts in England creating
special difficulties in particular areas.” By exercising this power the Government
cannot modify the parent Act nor can it make any modification which is not
consistent with the parent Act.

Another type of ‘removal of difficulties’ clause is very wide and authorizes the
executive in the name of removal of difficulties to modify even the parent Act or any
other Act. The classic illustration of such a provision is found in the Constitution
itself. Usually, such a provision is for a limited period.

This provision has been vehemently criticized by Lord Hewart and other jurists. It is
nicknamed as the Henry VIII clause to indicate executive autocracy. Henry VIII was
the King of England in the 16th century and during his regime he enforced his will
and got his difficulties removed by using instrumentality of a servile Parliament for
the purpose of removing the difficulties that came in his way. According to the
Committee on Ministers' Powers, the King is regarded popularly as the impersonation
of executive autocracy and such a clause ‘cannot but be regarded as inconsistent with
the principle of parliamentary Government.’

In Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha, the Supreme Court was called
upon to decide the legality of such a clause. Section 37(1) the Payment of Bonus
Act, 1965 empowered the Central Government to make such orders not inconsistent
with the purposes of the Act, as might be necessary or expedient for the removal of
any doubts or difficulties. Section 37(2) made the order passed by the Central
Government under subsection (1) final. The Court by a majority of 3: 2 held Section
37 ultra vires on the ground of excessive delegation inasmuch as the Government was
made the sole judge of whether any difficulty or doubt had arisen, whether it was
necessary or expedient to remove such doubt or difficulty and whether the order made
was consistent with the provisions of the Act. Again, the order passed by the Central
31

Government was made ‘final.’ Thus, in substance, legislative power was delegated to
the executive authority, which was not permissible

. The minority, however, took a liberal view and held that the functions to be
exercised by the Central Government were not legislative functions at all but were
intended to advance the purpose which the legislature had in mind. In the words of
Hidayatullah, J: “Parliament has not attempted to set up another legislature. It has
stated all that it wished on the subject of bonus in the Act. Apprehending, however,
that in the application of the new Act doubts and difficulties might arise and not
leaving their solution to Courts with the attendant delays and expense, Parliament has
chosen to give power to the Central Government to remove doubts and differences by
a suitable order.”

It is submitted that the minority view was correct and after Jalan Trading Co., the
Supreme Court adopted a liberal approach. In Gammon India Ltd. v. Union of India,
a similar provision was held constitutional by the Court. Distinguishing Jalan Trading
Co., the Court observed: “In the present case, neither finality nor alteration is
contemplated in any order under Section 34 of the Act. Section 34 is for giving
effect to the provisions of the Act. This provision is an application of the internal
functioning of the administrative machinery.” It, therefore, becomes clear that after
Jalan Trading Co., the Court changed its view and virtually overruled the majority
judgment.

It is submitted that by using a ‘removal of difficulties’ clause, the Government may

slightly tinker with the Act to round off angularities and smoothen the joints or
remove minor obscurities to make it workable, but it cannot change or disfigure the
basic structure of the Act. In no case can it, under the guise of removing a difficulty,
change the scheme and essential provisions of the Act.

The Committee on Ministers' Powers rightly opined that it would be dangerous in

practice to permit the executive to change an Act of Parliament and made the
following recommendation: ‘The use of the so-called Henry VIII clause conferring
power on a Minister to modify the provisions of Acts of Parliament should be
abandoned in all but the most exceptional cases and should not be permitted by
Parliament except upon special grounds stated in a ministerial memorandum to the
Bill. Henry VIII clause should never be used except for the sole purpose of bringing
the Act into operation but subject to the limit of one year.”

Impermissible Delegation The following functions, on the other hand, cannot be

delegated by the Legislature to the Executive:

Essential legislative functions

Even though there is no specific bar in the Constitution of India against the
delegation of legislative power by the legislature to the executive, it is now well-
settled that essential legislative functions cannot be delegated by the legislature to the
executive. In other words, legislative policy must be laid down by the legislature itself
and by entrusting this power to the executive, the legislature cannot create a parallel
legislature.
32

Repeal of law

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

power to the executive to repeal a law is excessive delegation and is ultra vires.

Modification

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

Exemption

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

Removal of difficulties

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

.Retrospective operation

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

Future Acts

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

Imposition of Taxes

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

Ouster of jurisdiction of courts

The legislature cannot empower the executive by which the jurisdiction of courts
may be ousted. This is a pure legislative function.
33

Offences and Penalty

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

Discuss Sub-Delegation

Introduction:

When a statute confers some legislative powers on an executive authority and the
latter further delegates those powers to another subordinate author or agency, it is
called ‘sub-delegation.’

Thus, in sub-delegation, a delegate further delegates. This process of sub-delegation may go

through many stages. If we may call the enabling Act the ‘parent’ and the delegated
and sub-delegated legislation the ‘children’, the parent, in his own lifetime may beget
descendants up to four or five degree.

An important illustration of sub-delegation is found in the Essential Commodities Act,

1955. Section 3 of the Act empowers the Central Government to make rules. This
can be said to be the first-stage delegation. Under Section 5, the Central Government
is empowered to delegate powers to its officers, the State Governments and their
officers. Usually under this provision, the powers are delegated to State Governments.
This can be said to be the second-stage delegation (sub-delegation). When the power
is further delegated by State Governments to their officers, it can be said to be the
third-stage delegation (sub-sub-delegation). Thus, under Section 3 of the Essential
Commodities Act, 1955, the Sugar Control Order, 1955 was made by the Central
Government (first-stage delegation). Under the Order, certain functions and powers are
conferred on the Textile Commissioner (second-stage delegation). Clause 10 empowered
the Textile Commissioner to authorize any officer to exercise on his behalf all or any
of his functions and powers under the Order (third-stage delegation).

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

following grounds:

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

2. sub-delegation is ancillary to delegated legislation; and any objection to the said

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

Express Power Where a statute itself authorizes an administrative authority to sub-

delegate its powers, no difficulty arises as to its validity since such sub-delegation is
within the terms of the statute itself.
34

Thus, in Central Talkies Ltd. v. Dwarka Prasad, the U.P. (Temporary) Control of
Rent and Eviction Act, 1947 provided that no suit shall be filed for the eviction of a
tenant without permission either of a District Magistrate or any officer authorized by
him to perform any of his functions under the Act. An order granting permission by
the Additional District Magistrate to whom the powers were delegated was held valid.

On the other hand, in GanpatiSinghji v. State of Ajmer, the parent Act empowered the
Chief Commissioner to make rules for the establishment of proper system of
conservancy and sanitation at fairs. The rules made by the Chief Commissioner,
however, empowered the District Magistrate to devise his own system and see that it
was observed. The Supreme Court declared the rules ultra vires as the parent Act
conferred the power on the Chief Commissioner and not on the District Magistrate
and, therefore, the action of the Chief Commissioner sub-delegating that power to the
District Magistrate was invalid. Sometimes, a statute permits sub-delegation to
authorities or officers not below a particular rank or in a particular manner only. As
per settled law “if the statute directs that certain acts shall be done in a specified
manner or by certain persons, their performance in any other manner than that
specified or by any other person than one of those named is impliedly prohibited.” In
other words, ‘where a power is given to do a certain thing in a certain way, the
thing must be done in that way or not at all’

Implied power :But what would happen if there is no specific or express provision
in the statute permitting sub-delegation? The answer is not free from doubt

In Jackson v. Butterworth, Scott, L.J. held that the method (of sub-delegating power
to issue circulars to local authorities) was convenient and desirable, but the power so
to sub delegate was, unfortunately, absent.

The other view, however, is that even if there is no provision in the parent Act
about subdelegation of power by the delegate, the same may be inferred necessary
implication. Griffith rightly states, “if the statute is so widely phrased that two or
more ‘tiers’ of subdelegation are necessary to reduce it to specialized 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. Baren, the parent Act conferred on the President the power to make
regulations concerning exports and provided that unless otherwise directed the
functions of the President should be performed by the Board of Economic Welfare.
The Board sub delegated the power to its Executive Director, who further sub-
delegated it to his assistant, who in turn delegated it to some officials. The court held
all the sub-delegations valid

Criticism: The practice of sub-delegation has been heavily criticized by jurists. It is well
established that the maxim delegatus non potestdelegare (a delegate cannot further
delegate) applies in the field of delegated legislation also and sub-delegation of power
is not permissible unless the said power is conferred either expressly or by necessary
implication. de Smithsays, “there is strong presumption against construing a grant of
delegated legislative power as empowering the delegate to sub-delegate the whole or
any substantial part of the law-making power entrusted to it.” Bachawat, J. In the
leading case of Barium Chemicals Ltd. v. Company Law Board states: “The naming of
35

a delegate to do an act involving a discretion indicates that the delegate was selected
because of his peculiar skill and the confidence reposed in him, and there is a
presumption that he is required to do the act himself and cannot redelegate his
authority.”

It is also said, ‘sub-delegation at several stages removed from the source dilutes
accountability of the administrative authority and weakens the safeguards granted by
the Act. It becomes difficult for the people to know whether the officer is acting
within his prescribed sphere of authority. It also transfers power from a higher to a
hierarchically lower authority. It is, therefore, necessary to limit in some way the
degrees to which sub delegation may proceed.’

Finally, there are serious difficulties about publication of sub-delegated legislation. Such
legislation, not being an Act of Legislature, there is no general statutory requirement
of publicity. ‘Though casually made by a minor official, sub-delegation creates a rule
and sets up a standard of a conduct for all to whom the rule applies. No individual
can ignore the rule with impunity. But at the same time the general public must have
access to the law and they should be given an opportunity to know the law. In case
of such delegated and sub-delegated legislation, proper publication is lacking.

Sub-delegation of legislative powers (points)

1. As a general rule, a delegate cannot further delegate. (Delegatus non potestdelegare)

2. Sub-delegation is not allowed generally because it would then dilute the level of
accountability and it can never be ascertained whether an official making a rule actually
has the power to do so

3. Sub-delegation may be allowed only when the parent statute expressly or impliedly
authorises the delegate to sub-delegate.

4. Sub-delegation must not be made in a very wide language. Also, a sub-delegate cannot
act beyond the power granted to him.

5. Sub-delegated legislation must also be published. This has been held in Narendra
Kumar v. Union of India and Maharashtra v. George.

6. The mode of publication is to be prescribed by the concerned authority and no

other mode is to be followed

7. Statutory Instruments Act in England does not require sub-delegated legislation to be

published.

8. If the statute provides that only rules shall be laid before the legislature, the
subdelegated rules might escape legislative scrutiny. However, this is also useful as it
reduces the burden of the legislature.

DELEGATED LEGISLATION (CONTROLS AND SAFEGUARDS) : ‘Delegation may be

assailed when it is ultra vires the Enabling Act and constitution.’ Discuss with the
help of decided cases.
36

Discuss with the help of decided cases the Judicial Control of delegated legislation in
India.

‘Sub-ordinate legislation may be assailed when it is ultra vires the constitution.’

Discuss with the help of decided cases.

Introduction : Whatever prejudices might have existed against delegated legislation in

the past, today it has come to stay. At present, in almost all countries, the technique
of delegated legislation is resorted to and some legislative powers are delegated by the
legislature to the executive. It must be conceded that in the present day legislative
powers can validly be delegated to the executive within permissible limits. At the
same time, there is inherent danger of abuse of the said power by executive
authorities. The basic problem, therefore, is that of controlling the delegate in
exercising his legislative powers. It has been rightly said that one has to find out a
middle course between two conflicting principles; one permitting very wide powers of
delegation for practical reasons while the other that no new legislative bodies should
be set up by transferring essential legislative functions to administrative authorities.
Delegated legislation has become inevitable but the question of control has become
crucial.

The control must be introduced at two stages:

• First, at the source, i.e. the safeguards must be provided when the legislature confers
the legislative power on the executive.

• Second, some safeguards must be provided in case of misuse or abuse of power by

the executive.

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

1. Judicial control;

2. Legislative control, and

3. Other controls.

1) Judicial Control :Delegated legislation does not fall beyond the scope of judicial
review and in almost all democratic countries it is accepted that courts can decide the
validity or otherwise of delegated legislation mainly applying two tests:

1. Substantive ultra vires; and

2. Procedural ultra vires.

‘Ultra vires’ means beyond power or authority or lack of power. An act may be said
to be ‘ultra vires’ when it has been done by a person or a body of persons which is
beyond his, its or their power, authority or jurisdiction.

‘Ultra vires’ relates to capacity, authority or power of a person to do an act. It is

not necessary that an act to be ultra vires must be illegal. The act may or may not be
37

illegal. The essence of the doctrine of ultra vires is that an act has been done in
excess of power possessed by a person.

1) Substantive Ultra Vires:

Definition

When an Act of Legislature enacts in an excess of power, conferred on the

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

Principle explained

Substantive ultra vires means that the delegated legislation goes beyond the scope of
the authority conferred on it by the parent statute or by the Constitution. It is a
fundamental principle of law that a public authority cannot act outside the powers; i.e.
ultra vires, and it has been rightly described as the ‘central principle’ and ‘foundation
of large part of administrative law.’ An act which, for a reason, is in excess of
power is ultra vires.

As Schwartz states, “If an agency acts within the statutory limits (intra vires), the
action is valid; if it acts outside it (ultra vires), it is invalid. No statute is needed to
establish this; it is inherent in the constitutional position of agencies and courts.”

Circumstances: A delegated legislation may be held invalid on the ground of

substantive ultra vires in the following circumstances:

1. Where parent Act is unconstitutional;

2. Where parent Act delegate’s essential legislative functions;

3. Where delegated legislation is inconsistent with parent Act;

4. Where delegated legislation is inconsistent with general law;

5. Where delegated legislation is unconstitutional;

6. Unreasonableness;

7. Mala fide (Bad faith);

8. Sub-delegation;

9. Exclusion of judicial review;

10. Retrospective effect;

38

Where Parent Act is Unconstitutional:

For delegation to be valid, the first requirement is that the parent Act or enabling
statute by which legislative power is conferred on the executive authority must be
Valid and constitutional. If the delegating statute itself is ultra vires the Constitution
and is bad, delegated legislation is necessarily bad.

Under the Defence of India Act, 1939, the Central Government was empowered to
make rules for requisition of immovable property. But the subject of requisition of
immovable property was not within the field of the Federal Legislature. On that
ground, the rule was held invalid. In Chintamanrao v. State of M.P, the parent Act
authorized the Deputy Commissioner to prohibit manufacturing of bidis in some areas
during certain periods. The order passed by the Deputy Commissioner under the Act
was held ultra vires inasmuch as the Act under which it was made violated the
Fundamental Right to carry on any occupation, trade or business, guaranteed by
Article 19(1)(g) of the Constitution. A rule framed under the Bombay Provincial
Municipal Corporation Act, 1949, imposing tax on machinery was held invalid on the
ground that the State legislature had power to levy a tax only on lands and buildings
and not on machinery.

Where parent Act delegates essential legislative functions It is a well settled principle
of Administrative Law that primary and essential legislative functions must be
performed by the Legislature itself and they cannot be delegated to any other organ
of the State. To put it differently, under the scheme of our Constitution, a Legislature
cannot create, constitute or establish a parallel Legislature.

Where delegated legislation is inconsistent with parent Act :

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

Where delegated legislation is inconsistent with general law

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

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

working journalists. The State Government, by executive instructions imposed levy on
government advertisements on newspapers and deducted such levy from pension fund
39

of working journalists. The directive of the State Government was held beyond
legislative competence and ultra vires the Constitution.

Where delegated legislation is unconstitutional :

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

Unreasonableness

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

Mala Fide

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

Exclusion of judicial review

The rule of law has always recognized power of judiciary to review legislative and
quasi legislative acts. The validity of a delegated legislation can be challenged in a
court of law. As early as 1877 in Empress v. Burah, the High Court of Calcutta had
declared Section 9 of Act XXII of 1869 ultra vires. Though the decision of the
Calcutta High Court was reversed by the Privy Council, neither before the High Court
nor before the Privy Council it was even contended that the court had no power of
judicial review and, therefore, cannot decide the validity of the legislation.

Sometimes, however, attempts are made by the legislature to limit or exclude judicial
review of delegated legislation by providing different modes and methods. Thus, in an
Act a provision may be made that rules, regulations, bye-laws made under it ‘shall
have effect as if enacted in the Act’, ‘shall be final’, ‘shall be conclusive’, ‘shall not
be called in question in any court’, ‘shall not be challenged in any legal proceedings
whatsoever’ and the like.
40

Retrospective operation It is well-settled that delegated legislation cannot have any

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

2)Procedural ultra vires

Definition : When a subordinate legislation fails to comply with procedural

requirements prescribed by the parent Act or by a general law, it is known as
procedural ultra vires.

Principle explained : While framing rules, bye-laws, regulations, etc., the parent Act or
enabling statute may require the delegate to observe a prescribed procedure, such as,
holding of consultations with particular bodies or interests, publication of draft rules or
bye-laws, laying them before Parliament, etc. It is incumbent on the delegate to
comply with these procedural requirements and to exercise the power in the manner
indicated by the Legislature. Failure to comply with the requirement may invalidate
the rules so framed.

At the same time, however, it is also to be noted that failure to observe the
procedural requirements does not necessarily and always invalidate the rules. This
arises out of a distinction between mandatory requirements and directory requirements.
In this work, though we are not concerned with the distinction between the two, we
may say that generally, non-compliance with a directory provision does not invalidate
subordinate legislation, but failure to observe a mandatory and imperative requirement
does. “It is awell-settled rule that an absolute enactment must be obeyed or fulfilled
exactly, but it is sufficient if a directory enactment be obeyed or fulfilled
substantially.”

Requirements: The following two procedural requirements may now be discussed:

1. Publication

2. Consultation

1)Publication

Object

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

juris non excusat). But there is also another equally established principle of law that
the public must have access to the law and they should be given an opportunity to
know the law. The very justification for that basic maxim is that the whole of our
law, written or unwritten, is accessible to the public – in the sense, of course, at any
rate, its legal advisers have access to it, at any moment, as of right.
41

In case of an Act made by Parliament this poses little difficulty as it receives

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

Directory or mandatory

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

neither published nor was it made known to the general public through any other
means. The Supreme Court, by applying principles of natural justice, held that its
publication was necessary.

Again, in Narendra Kumar v. Union of India, Section 3 of the Essential Commodities

Act, 1955 required all the rules to be made under the Act to be notified in the
Official Gazette. The principles applied by the licensing authority for issuing permits
for the acquisition of non-ferrous metal were not notified. The Supreme Court held
the rules ineffective.

Mode of publication

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

Effect of publication

Once the delegated legislation is promulgated or published, it takes effect from the
date of such promulgation or publication.

Defect in publication

As already noticed, there is difference between publication of delegated legislation and

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

2) Consultation

General

One of the techniques adopted by courts to control exercise of power by executive

against abuse of power is the process of consultation with affected interests before
delegated legislation or statutory instrument is prepared. It is indeed a visible
safeguard against possible misuse of power by the rule-making authority.
42

Meaning

The term ‘consult’ implies a conference of two or more persons or an impact of two
or more minds in respect of a topic in order to enable them to evolve a correct or,
at least satisfactory solution of a problem. It is a process which requires meeting of
minds between the parties to consultation on material facts to come to a right
conclusion.

Object

An important measure to check and control the exercise of legislative powers by the
executive is the technique of consultation through which affected interests may
participate in the rule-making process. This modus operandi is regarded as a valuable
safeguard against misuse of legislative power by the executive authorities. As Wade
and Philips remark, “One way of avoiding a clash between department exercising
legislative powers and the interest most likely to be affected is to provide for some
form of consultation.”

This process of exchange of ideas is beneficial to both: to the affected interests itself
insofar as they have an opportunity to impress on the authority their point of view;
and to the rule-making authority insofar as it can gather necessary information
regarding the issues involved and thus be in a better position to appreciate a
particular situation. The Administration is not always the repository of ultimate
wisdom; it learns from the suggestions made by outsiders and often benefits from that
advice. A consultative technique is useful in balancing individual interests and
administrative exigencies. The purpose is to allow interested parties to make useful
comment and not to allow them to assert their right to insist that the rule to take a
particular form. It acts as an important brake on administrative absolutism.

Nature and Scope

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

Mandatory or directory

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

Legislative Powers of Administration

1. Delegated legislation essentially means the bulk of legislation promulgated by the

Executive.

2. This term is used in two senses. It is either when the subordinate agency exercises
power as conferred on it by the legislature or when such subordinate agency makes
subsidiary rules in accordance with such power conferred on it.

3. In the first sense, it refers to subordinate legislation wherein the executive makes
laws within the limits prescribed by the parent act as it is subordinate to such
legislation

4. In the second sense, it refers to all rules, regulations (which are essentially made
by corporations), by-laws, etc. Framed by the executive. An example may be given of
the Essential Commodities Act wherein the list of essential commodities given in the
statute are not exhaustive and the executive may add to it as and when it feels
necessary.

5. Delegated legislation may be distinguished from administrative action on the following

grounds

(a) Publication- Usually legislative acts or orders must be published in the official
gazette for the purpose of notification. However, administrative orders generally need
not be published as they are applied with respect to only a particular individual or a
particular group of individuals.

(b) Procedure- In case of legislation, only such rules of procedure need to be

followed which are specified in the statute, while in the case of administrative action,
principles of natural justice must be followed even when the parent statute is silent on
such issue.

(c) Grounds of judicial review- Malafide may be pleaded as a ground with respect to
administrative action but the same can several be used as a ground to challenge
delegated legislation.

(d) Differences between legislative and non-legislative functions also come to the
forefront when questions about sub-delegation arise.

6. However, it has been stated by the Committee on Ministers’ Powers that the test
to differentiate between the two is that the power to formulate general laws, rules, etc.
is legislative while the power to apply such rules and make orders with respect to
specific cases is administrative.

7. This has been stated in the Generality and Prospectivity test as given in Union of
India v. Cynamide India Ltd. wherein an order of the Central Government fixing the
maximum prices for sale of certain bulk drugs was challenged on the grounds of
violating the principles of natural justice as it was an administrative action. The HC
44

on the other hand held that fixing prices here affects the rights of the general public
and not just particular drug manufacturers and hence it was a piece of delegated
legislation and the principles of natural justice would not apply

8. In K.I. Shepherd v. Union of India , the application of this rule was rejected. Herein
the rights of particular bank employees were affected due to termination of services
caused by the merger of certain banks.

Need for delegation of legislative power:

1. Factors leading to growth of delegated legislation

(a) Increase in state functions owing to the creation of a welfare state in place of a
laissez faire state.

(b) It helps in saving time of the legislature which is generally overburdened these
days.

(c) It reduces the burden of the legislature

. (d) If each piece of legislation were to consist of all possible details, it would
become too complex for the common man to understand

(e) It would be better to leave such tasks to specialists who shall be in a better
position to make such technical rules, regulations, etc.

(f) At times, it might become necessary to hold consultations with persons going to
be affected by schemes and the same may be done by the administration which works
at the grass-root level.

g)Delegated legislation involves a lot of flexibility and opportunity for experimentation.

(h) It might not be possible for the legislature to foresee the possible effects of an
act each time owing to the changing circumstances.

(i) Such legislation is required especially during times of emergency such as war,
armed aggression, natural disasters, etc. wherein it might not be possible to the
extensively lengthy and complex process of legislation.

2) Drawbacks of delegated legislation

(a) It has often been criticised as being an abdication of its powers/duties by the
legislature. Many times only the skeleton of the legislation is laid down, leaving even
the policies and principles to be formulated by the executive.

(b) It leads to arbitrariness as many times no guidelines are laid down using which
the delegate may exercise his functions and thus he gets complete authority to do
whatever he likes.
45

(c) Delegated legislation has been criticised as being undemocratic as it is not

discussed or criticised in parliament as is the case with any statute. It may not reflect
the general public opinion.

3. Thus, an effective system of checks and balances must be developed both at the
legislative level by not allowing for excessive delegation and at the executive level
by avoiding arbitrary use of power and application of mind.

4. Restraints on delegated legislation

(a) In Britain, due to the prevalence of the principle of Parliamentary sovereignty,

delegated legislation is also controlled by the Parliament. There is no restriction on the
capacity of the Parliament to delegate and thus the courts cannot question such
power. However, controls may be exercised by the Parliament if it so pleases and it
cannot be compelled by any external agency to do so.

(b) In the United States due to the presence of a written constitution and the
principle of separation of powers, the Congress cannot delegate excessive amount of
power as the same may be struck down by courts as being unconstitutional. Also, the
US Supreme Court has evolved the doctrine of ‘delegatus non potestdelegare’ by
virtue of which, the Congress cannot delegate as it is technically the delegate of the
people. However, keeping in mind practical considerations, it has been stated that the
Congress may delegate provided it lays down discernible standards and policies which
the executive must follow while exercising such powers.

(c) In India

(i) The first important case concerning the limits of delegated legislation was that of
Jatindra Nath v. Province of Bihar where it was held that there can be no delegation
beyond conditional legislation. As per the principle of conditional legislation, the
general piece of legislation is made by the legislature and it is to be enforced by the
executive subject to the fulfilment of a condition. Whether or not the law shall take
effect will depend upon whether or not such condition has been fulfilled by the
administration. However, this principle was followed only at the time of independence.

(ii) Later in the Delhi Laws Act case , a new approach was adopted. After
independence, states in India were divided into three categories- Part A(provinces of
British India), Part B(princely states) and Part C(smaller territories which were
previously governed by Governor Generals). Part A and Part B states had their own
legislature to make laws but Part C states were under the control of the Central
Government. Thus, due to time constraints, the Parliament passed the Part C States
(Laws) Act, 1950 by virtue of which the Central Government could extend any law in
force in a Part A state to a Part C state with modifications as and when required and
in doing so it could also repeal/amend the provisions of any law, provided it is not a
law enacted by the Centre, which is in force in a Part C state to the extent is
inconsistent with the former. All 7 judges gave different opinions but concurred on 2
major points, i.e. keeping in mind the practical need of delegated legislation, the same
must be continued and as the legislature in India derives authority from a written
constitution, there must be certain limits to the capacity to delegate (there should not
be any excessive delegation). Thus, keeping the same in mind it was held that the
46

part of the law which allowed it to repeal/amend provisions of laws prevalent in a

Part C state was bad and thus should not be allowed (excessive delegation). Also,
when the law is being made applicable to Part C state subject to modifications, the
modifications must not be such that they change the underlying policy of the law
itself. Further, only such laws as under the Union list and are applicable to Part A
and Part B states must be extended to Part C states so that the state legislatures may
not abdicate their duties of legislation. It was also stated in this case that the
legislature may not delegate its basic functions of policy formulation, etc.

Iii) In Gwalior Rayon Co. v. Asst. Commissioner of Sales Tax , it was held that
whenever the legislature delegates power to an authority, it must lay down the basic
policy, principles or standards of guidance for such authority to follow. However, in
his dissenting judgment, Matthew J. stated that as long as Parliament retains its power
to repeal the delegating provision, there is no abdication of its duties (stated in
previous case by Attorney General). However, this view is not proper as keeping in
mind the current political scenario the Parliament cannot possibly repeal the delegating
statute after conferring such power as most present day executives exercise almost
complete power over the legislature as they themselves enjoy a majority in the
legislature.

Constitutionality of Delegated Legislation:

1. Skeleton Legislation

skeleton Legislation refers to such a legislation wherein the legislature provides for
merely the basic skeleton and the gaps are filled in or the flesh and blood are
provided by the Executive. In many cases, the judiciary has upheld the validity of
such legislations

2. In Bagla v. Madhya Pradesh, it Ss. 3, 4 and 6 of the Essential Supplies Act, 1946
were challenged. S.3 laid down that the Central Government may lay down rules for
regulation of production, distribution and prices of essential commodities. This was
challenged on the ground of excessive delegation stating that the legislature had not
laid down any policy or standards. But, the SC held otherwise and stated that the
basic policy has been provided in the form of maintenance or increase in supply and
maintenance of prices in public interest. S.4 stated that the Central Government may
further delegate its powers to its subordinate officers or such officers working under
the State Government. This was challenged on the basis of the fact that a delegate
may not sub-delegate. However, the SC held that as the officers to whom power may
be sub-delegated have been mentioned in a list under S.4, there is in fact delegation by
the legislature and not the executive as the latter cannot merely appoint anyone to
perform the duty. S.6 provides that orders made by Centre under S.3 would have
effect even if they were inconsistent with any other act in force. This amounted to
repeal of such other act or its provisions. It was thus challenged on the ground of
repeal of a legislative act by way of delegated legislation (as discussed in the Delhi
Laws Act case). However, the SC upheld the validity of this section and stated that it
was provided only to by-pass any other law in force and not to repeal it. Also, even
if any act gets repealed in the process, it is due to an act of the legislature and not
of the delegate as S.6 was declared by the legislature itself.
47

3. In Bhatnagar and Company v. Union of India, it was held that the power of the
Central Government under the Imports and Exports Act to restrict or prohibit the
import or export of products of a specific category is valid even if no guidelines for
deciding as to how such commodities are to be chosen is provided in the parent
legislation. This is because the policy has been laid down in a preceding legislation-
the Defence of India Act. Also, owing to the dynamic nature of imports or exports, it
becomes impossible for the legislature to predict as to which goods need to be put
into such category.

4. In DS Garewal v. Punjab, the provisions of the All India Services Act which
empowered the Centre to make rules to regulate conditions of service was challenged
as amounting to excessive delegation. However, it was also stated that the rules which
would have already been in existence at the time of enactment of the statute would be
deemed to be part of the act itself. Thus, the rules were held to be valid as they were
adopted by the act itself and thus the underlying policy was established.

Power of Inclusion and Exclusion

1. This is a common legislative practice which provides that certain individuals,

organisations, commodities, etc. be excluded or included from the purview of the Act by
way of adding or omitting such names from a schedule annexed to the Act by the
executive.

2. In Edward Mills Company v. State of Ajmer, it was held that inclusion or

exclusion of any sort of employment under the Minimum Wages Act so that such
group of persons may or may not be entitled to the wages fixed under the act does
NOT amount to excessive delegation. This is because the policy is already laid down
in the act which entitles such persons to minimum wages who do not receive the
same due to unfair practices, unorganised labour, etc.

3. In Jalan Trading Company v. Mill Mazdoor Union, it was held that the government
may decide to exempt certain establishments from the ambit of the Payment of Bonus
Act taking into consideration their financial capacity, etc. and the same shall not
amount to being excessive delegation as the policy has already been laid down by the
statute.

4. In Hamdard Dawakhana v. Union of India, for the first time after the Delhi Laws
Act case, a Central Act was held to be ultra vires. Herein, S.3 of the Drug and Magic
Remedies (Objectionable Advertisements) Act was challenged. This section contained a
list of drugs whose advertisement was prohibited and entitled the government to add to
or remove from such list. This provision was held to be unconstitutional as there was
no specific standard or guideline laid down to be considered by the executive while
adding or removing names of such drugs.

Power of modification of statute

1. This is also known as the power to remove difficulties or the Henry VIII Clause.

2. This power is given so that the executive in times of need might change any
provision of the parent statute.
48

3. This might seem as a drastic power given in the hands of the executive but it is
required to bring about a certain degree of flexibility in legislation so that changes
may be brought about keeping in mind changing social needs.

4. It might also be used to remove any difficulty in the operation of the act

5. Also, it is generally used when a particular law forays into an entirely new area
where socio-economic or other conditions are different.

6. All the above may be carried out by inserting a ‘removal of difficulties’ clause or
a Henry VIII clause in the statute.

7. It was named Henry VIII clause after King Henry VIII who was called the
‘impersonation of executive autocracy’ by the Committee on Ministers’ Powers Report,
1932.

8. There are generally 2 types of ‘removal of difficulty’ clauses, one which is

narrower and another which is broader.

9. A narrower clause allows removal of difficulty without any modification to the

parent act. It must always be in consonance with the parent act. An example may be
given of the Reorganisation of States Act wherein it has been stated that in order to
remove any difficulty, the President may by order do anything NOT inconsistent with
the provisions of the Act which he considers are necessary for the removal of such
difficulty.

10.The broader clause allows removal of difficulty even if the same modifies the
parent act. An example may be given of Art.s 372 and 392 of the Constitution which
empowers the President to make adaptations and modifications in the existing law.
11.In Jalan Trading Company v. Mill Mazdoor Union , the Payment of Bonus Act
under S.37(1) empowered the Central Government to make any orders for removal of
any difficulty not inconsistent with the purposes of the Act and S.37(2) make such
orders made by the Government binding. Clause 1 was regarded as being
constitutional as it merely sought to advance the purposes of the act while Clause 2
completely excluded judicial review and thus was unconstitutional due to excessive
delegation.

Power to impose tax

1. under Art. 265 of the Constitution, no tax may be levied except when provided
under statute. Thus, the power to impose tax essentially rests with the legislature

2. However, the executive may be asked to specify the rates of tax available provided
the maximum and minimum rates have been provided in the statute itself.

3. The executive may also exempt certain persons or commodities from such taxation.

4. In Orient Weaver Mills v. India, it was held that the provision empowering the
executive from exempting certain excisable goods from duties leviable on such goods
does not amount to excessive delegation.
49

5. Refer to Gwalior Rayon Company case as well. (mentioned previously)

6. Power to impose taxes or duties may even be extended to municipal bodies taking
into consideration the nature of the body to whom such authority is being delegated.

Consultation of affected interest and public participation in rule making:

1. Public participation leads to democratization of the process of delegated legislation. It

helps in getting the views of affected parties so as to make a better piece of
legislation. It also helps the persons affected as their grievances are heard and
suggestions are taken into consideration.

2. It has been on the rise these days due to the involvement of several organisations
which help in eliciting public opinion and bringing them before the government.

3. However, in order that such participation is allowed, a provision with respect to the
same must be made in the parent act.

4. In Tulsipur Sugar Company v. Notified Area Committee, Tulsipur, the plaintiff

challenged an order made by the government which extended the limits of the
municipal boundaries without making an prior publication thereby not giving anyone
affected a reasonable opportunity to be heard. The court held that the statute did not
provide for any prior publication of such rules and hence the government is under no
obligation to do the same. Also, reasonable opportunity of being heard cannot be
claimed as it is a legislative function whereby principles of natural justice need not be
followed.

5. As per the General Clauses Act, for the purpose of the term ‘previous publication’
the draft of proposed rules must be published by the concerned authority in a manner
it deems fit. It must specify the time and date of such consideration and must keep in
mind the objections/suggestions while finalising the rules.

6. One of the major issues concerned with such pre-publication of draft rules is that
there is no time lag specified which is to be maintained between the publication of
draft rules and final publication. This may allow the authorities to keep a very small
time gap thereby making the entire process a sham.

7. Also publication is to be made by the rule making authority in the manner it

deems fit and thus too much is dependent on executive discretion

8. Further, publication of the rules in the gazette is conclusive proof of the fact that
the rules have been duly made

9. In LachmiNarain, atleast a 3 months’ notice to give effect to a modification to a

schedule in the sales tax act was considered a matter of legislative policy and
necessary for taking into consideration of affected interests.

10.In Raza Buland Sugar Company v. Rampur Municipality, the act stipulated that
publication be made in a newspaper published in Hindi but the municipality published
it in an Urdu daily. The court held the same to be valid on the ground that there
50

has been substantial compliance with the provisions of the statute as the Urdu daily
had a much wider circulation in the area.

11. In England, there is no statutory mention of consultation of interests but never the
less the same is followed as a general departmental practice.

12. In the US, pre-publication is made mandatory under S.553 of the Administrative
Procedure Act unless the authority feels that the use of such procedure would be
impracticable, unnecessary or contrary to public interest.

Publication of Delegated Legislation

1. In England, the Statutory Instruments Act requires the publication of delegated

legislation.

2. In the US, only after the Panama case in 1935 was such need felt. Thus, the
Federal Register Act and the Administrative Procedure Act came into force.

3. In India, publication must be done if provided in the parent act. But, as a matter
of practice rules are published in the Gazette of India.

4. In 1960, the Central Government commenced the publication of various orders under
the title of ‘statutory rules and orders’.

5. in Harla v. Rajasthan, it was held that promulgation or publication of some sort is

required so that people understand what they are required to do or not do

6. In Maharashtra v. George, it was held that where there is no statutory provision for
publication of rules, it must be published in such media as is generally adopted to
notify all such persons concerned with such rules.

7.Publication in the gazette is advantageous as(a) It gives authenticity to the rules. (b)
It creates certainty in the mind of the people that the rule exists. (c) The individual
may have easy access to the rules.

8. Rules should be generally published in one customary channel and not in several
channels depending on the will of the executive

9. In Bangalore WCS Mills Company v. Bangalore Corporation, it was held that a

resolution not published under the act was still valid due to a provision in the act
which stated that no action existed merely on the ground of any defect or irregularity
in an act or proceeding which does not affect the merits of the case.

10. If there is due publication in the mode specified in the statute or in the usual
mode, it amounts to sufficient notice being given.

11. Delegated legislation comes into force on the day it is published and not on the
day it is made.
51

12. However, if the publication specifies that it shall come into effect on a date after
such publication, the same shall be considered.

Judicial Control of delegated legislation

1. Judicial control is generally exercised at the time of delegation and legislative

power is exercised after such delegation, with the help of committees, etc.

2. The courts may review delegated legislation on the grounds discussed as follows

3. Constitutionality of the Parent Act- If the parent legislation is itself unconstitutional,

the delegated legislation made under it shall also be considered as being
unconstitutional. This may happen if the act is contrary to fundamental rights or if it
does not adhere to the centre-state distribution of powers or if it provides for
excessive delegation, etc.

4. Constitutionality of Delegated Legislation- The constitutionality of a piece of

delegated legislation has been considered in the following cases

(a) Dwarka Prasad LaxmiNarain v. State of UPRules were made under the Essential
Supplies Act as per which in order to carry on coal business, a license is required to
be got from the State Coal Controller who has the power to refuse or exempt any
person from taking such license. This order was held to be arbitrary and violative of
Art.s 14 and 19(1)(g).

(b) Chintamani Rao v. State of Madhya Pradesh- The district collector was authorised
to make rules regulating and prohibiting the manufacture of bidhis. This was struck
down as being unreasonable and unconstitutional.

(c) HimmatLal Shah v. Commissioner of Police The Commissioner of Police was

given the authority to regulate processions and under Rule 7 of the rules, permission
of the Commissioner must be sought before convening any meeting or assembly. It
was held that this rule was unconstitutional as it was violative of the right to peaceful
assembly.

(d) Air India v. NargeshMirzaAir India Service Regulation which provided for
termination of service of airhostesses on marriage or on pregnancy or on attainment
of 35 years of age were held to be discriminatory under Art. 14.

(e) Muthamma v. Union of India- Service rules made by the central government
stating that any employee of the government was to seek permission from the
government before getting married and that service of women employees shall be
terminated on marriage was held to be discriminatory under Art.s 14 and 15(2).

(f) Deepak Sibbal v. Punjab UniversityThe Bar Council of India passed a rule stating
that a student of law could not pursue another professional course. The same was
struck down as being violative of Art. 14.
52

(g) Parag Ice and Oil Mills v. Union of India- It was held that even if the parent act
shall be exempted from judicial review if it is placed in the IXth schedule, the rules
made under such act cannot be regarded as being immune from judicial review.

5. Rules violating parent act- This is called substantive ultra vires. It is when the
delegated legislation either goes beyond the purview of delegated legislation or when it
is in conflict with the delegating statute.

6.In LachmiNarain v. UP, under the Part C laws act, certain laws prevalent in other
states could be extended to union territories with such modifications as do not change
the underlying policy of such law. In one such case, a schedule was amended and as
per the requirements of the parent act, a 30 days’ notice was not provided before such
amendment and thus it was held to be void.

7. In Bar Council of India v. Surjit Singh, it was seen that for the purpose of voting
at an election or being a member of the state bar council, qualifications are to be
provided by rule made by the Bar Council of India. If such rule is made by the state
bar council, it shall be invalid even if it is approved later by the Bar Council of India
as an approval cannot validate it and making a rule is different from approving it.

8. In V.Sunder v. Bar Council of India, it was seen that before getting registered, a
law graduate is to practice under a senior advocate. It was held that the Bar Council
can only specify standards and not impart training

9. Retrospective effect of subordinate legislation- Delegated legislation cannot be made

applicable retrospectively unless expressly provided under the parent statute. In Union
of India v. Krishnamurthy, it was held that amendment of a previous regulation so as
to make it applicable retrospectively was invalid.

10.Unreasonableness- This may be seen in the case of Kruse v. Johnson, wherein the
local authority made rules prohibiting playing of music or singing in a public area 50
yards away from a dwelling house. The same was held as being unreasonable.

UNIT 3

ADMINISTRATIVE TRIBUNALS

Introduction: Today, over and above ministerial functions, the executive perform many
quasi-legislative and quasi-judicial functions as well. Governmental functions have
increased and even though according to the traditional theory, the function of
adjudication of disputes is the exclusive jurisdiction of the ordinary courts of law, in
reality, many judicial functions have come to be performed by the executive, e.g.
imposition of fine, levy of penalty, confiscation of goods, etc.

The traditional theory of 'laissez faire' has been given up and the old ‘Police State’
has now become a ‘Welfare State’, and because of this radical change in the
philosophy as to the role to be played by the State, its functions have increased.
Today it exercises not only sovereign functions, but, as a progressive democratic State,
53

it also seeks to ensure social security and social welfare for the common masses. It
regulates the industrial relations, exercises control over production, starts many
enterprises. The issues arising there from are not purely legal issues. It is not possible
for the ordinary courts of law to deal with all these socio-economic problems.

For example, industrial disputes between the workers and the management must be
settled as early as possible. It is not only in the interest of the parties to the
disputes, but of the society at large. It is, however, not possible for an ordinary court
of law to decide these disputes expeditiously, as it has to function, restrained by
certain innate limitations. All the same, it is necessary that such disputes should not
be determined in an arbitrary or autocratic manner. Administrative tribunals are,
therefore, established to decide various quasi-judicial issues in place of ordinary courts
of law.

Definition:

It is not possible to define the word ‘tribunal’ precisely and scientifically. According
to the dictionary meaning, ‘tribunal’ means ‘a seal or a Bench upon which a Judge or
Judges sit in a court’, ‘a court of justice.’ But this meaning is very wide as it
includes even the ordinary courts of law, whereas in administrative law this expression
is limited to adjudicating authorities other than ordinary courts of law.

Distinction between Administrative Tribunals and Courts

An administrative tribunal is similar to a court in certain aspects. Both of them are

constituted by the State, invested with judicial powers and have a permanent
existence. Thus, they are adjudicating bodies. They deal with and finally decide disputes
between parties which affect the rights of subjects. As observed by the Supreme Court
in Associated Cement Co. Ltd. v. P.N. Sharma, “the basic and the fundamental feature
which is common to both the courts and the tribunals is that they discharge judicial
functions and exercise judicial powers which inherently vest in a sovereign State.” But
at the same time, it must not be forgotten that an administrative tribunal is not a
court. The line of distinction between a ‘court’ and a, ‘tribunal’ in some cases is
indeed fine though real. All courts are tribunals but the converse need not necessarily
be true.

A tribunal possesses some of the trappings of a court, but not all, and therefore, both
must be distinguished:

1. A court of law is a part of the traditional judicial system. Where judicial powers
are derived from the State and the body deals with King's justice it is called a
‘court.’ On the other hand, an administrative tribunal is an agency created by a statute
and invested with judicial powers. Primarily and essentially, it is a part and parcel of
the Executive Branch of the State, exercising executive as well as judicial functions.
As Lord Greene states, administrative tribunals perform ‘hybrid functions.’

2. Whereas ordinary civil courts have judicial power to try all suits of a civil nature,
excepting those whose cognizance is either expressly impliedly barred, tribunals have
power to try cases in special matters statutorily conferred.
54

3. The mere lack of general jurisdiction to try all cases of a civil nature does not
necessarily lead to an inference that the forum is tribunal and not a court. A court
can also be constituted with limited jurisdiction.

4. Judges of ordinary courts of law are independent of the executive in respect of

their tenure, terms and conditions of service, etc. On the other hand, members of
administrative tribunals are entirely in the hands of the Government in respect of
those matters.

5. A court of law is generally presided over by an officer trained in law, but the
president or a member of a tribunal may not be trained as well in law.

6. In a court of law, a Judge must be an impartial arbiter and he cannot decide a

matter in which he is interested. On the other hand, administrative tribunal may be
party to the dispute to be decided by it.

7. A court of law is bound by all the rules of evidence and procedure but an
administrative tribunal is not bound by those rules unless the relevant statute imposes
such an obligation

8. A court must decide all the questions objectively on the basis of the evidence and
materials produced before it, but an administrative tribunal may decide the questions
taking into account the departmental policy or expediency and in that sense, the
decision may be subjective rather than objective. ‘The real distinction is that the
courts have an air of detachment.’

9. While a court of law is bound by precedents, principles of res judicata and

estoppel, an administrative tribunal is not strictly bound by them.

10. A court of law can decide the 'vires' of a legislation, while an administrative
tribunal cannot do so.

Reasons for Growth of Administrative Tribunals: According to Dicey's theory of

rule of law, the ordinary law of the land must be administered by ordinary law
courts. He was opposed to the establishment of administrative tribunals. According to
the classical theory and the doctrine of separation of powers, the function of deciding
disputes between the parties belonged to ordinary courts of law. But the governmental
functions have increased and ordinary courts of law are not in a position to meet the
situation and solve the complex problems arising in the changed socio-economic
context.

Administrative tribunals are established for the following reasons:

The traditional judicial system proved inadequate to decide and settle all the disputes
requiring resolution. It was slow, costly, inexpert, complex and formalistic. It was
already overburdened, and it wall possible to expect speedy disposal of even very
important matters, e.g disputes between employers and employees, lockout, strikes, etc.
These burning problems cannot be solved merely by literally interpreting the
provisions of any statute, but require the consideration of various other factors and
this cannot be accomplished by the courts of law. Therefore, industrial tribunals and
55

labour courts were established, which possessed the technique and expertise to handle
these complex problems.

2. The administrative authorities can avoid technicalities. They take a functional rather
than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid
and technical. It is not possible for the courts of law to decide the cases without
formality and technicality. On the other hand, administrative tribunals are not bound
by the rules of evidence and procedure and they can take a practical view of the
matter to decide the complex problems.

3. Administrative authorities can take preventive measures, e.g. Licensing, ratefixing, etc.
Unlike regular courts of law, they have not to wait for parties to come before them
with disputes. In many cases, these preventive actions may prove to be more effective
and useful than punishing a person after he has committed a breach of any legal
provision. 4. Administrative authorities can take effective steps for enforcement of the
aforesaid preventive measures, e.g. suspension, revocation or cancellation of licences,
destruction of contaminated articles. etc, which are not generally available through the
ordinary courts of law.

5. In ordinary courts of law, the decisions are given after hearing the parties and on
the basis of the evidence on record. This procedure is not appropriate in deciding
matters by the administrative authorities where wide discretion is conferred on them
and the decisions may be given on the basis of the departmental policy and other
relevant factors.

6. Sometimes, the disputed questions are technical in nature and the traditional
judiciary cannot be expected to appreciate and decide them. On the other hand,
administrative authorities are usually manned by experts who can deal with and solve
these problems, e.g. Problems relating to atomic energy, gas, electricity, etc.

7. In short, as Robson says, administrative tribunals do their work ‘more rapidly,

more cheaply, more efficiently than ordinary courts... possess greater technical
knowledge and fewer prejudices against Government... give greater heed to the social
interests involved... decide disputes with conscious effort at furthering social policy
embodied in the legislation.’

Characteristics: The following are the characteristics of an administrative tribunal:

1.An administrative tribunal is the creation of a statute and thus, it has a statutory
origin

2. It has some of the trappings of a court but not all.

3. An administrative tribunal is entrusted with the judicial powers of the State and
thus, performs judicial and quasi-judicial functions, as distinguished from pure
administrative or executive functions and is bound to act judicially.
56

4. Even with regard to procedural matters, an administrative tribunal possesses powers

of a court; e.g. to summon witnesses, to administer oath, to compel production of
documents, etc.

5. An administrative tribunal is not bound by strict rules of evidence and procedure.

6. The decisions of most of the tribunals are in fact judicial rather than
administrative inasmuch as they have to record findings of facts objectively and then
to apply the law to them without regard to executive policy. Though the discretion is
conferred on them, it is to be exercised objectively and judicially.

7. Most of the administrative tribunals are not concerned exclusively with the cases in
which Government is a party; they also decide disputes between two private parties,
e.g. Election Tribunal, Rent Tribunal, Industrial Tribunal, etc. On the other hand, the
Income Tax Tribunal always decides disputes between the Government and the
assesses.

8. Administrative tribunals are independent and they are not subject to any
administrative interference in the discharge of their judicial or quasi-judicial functions.

9. The prerogative writs of certiorari and prohibition are available against the
decisions of administrative tribunals.

Thus, taking into account the functions being performed and the powers being
exercised by administrative tribunals we may say that they are neither exclusively
judicial nor exclusively administrative bodies, but are partly administrative and partly
judicial authorities.

Decisions of Tribunals and Judicial Review: No appeal, revision or reference against

the decision of an administrative tribunal is maintainable if the said right is not
conferred by the relevant statute. Provisions can also be made for ouster of
jurisdiction of civil courts; and in all these cases the decisions rendered by the
tribunal will be treated as 'final'. This statutory finality, however, will not affect the
jurisdiction of High Courts under Articles 226 and 227 and of the Supreme Court
under Articles 32 and 136 of the Constitution of India. The power of judicial review
of High Courts and the Supreme Court is recognized by the Constitution and the
same cannot be taken away by any statute; and if the tribunal has acted without
jurisdiction, or has failed to exercise jurisdiction vested in it, or if the order passed
by the tribunal is arbitrary, perverse or mala fide, or it has not observed the
principles of natural justice, or there is an error apparent on the face of the record, or
the order is ultra vires the Act, or there is no evidence in support of the order, or
the order is based on irrelevant considerations, or where the findings recorded are
conflicting and inconsistent, or grave injustice is perpetuated by the order passed by
the tribunal or the order is such that no reasonable man would have made it, the
same can be set aside by the High Court or by the Supreme Court.

At the same time, it must be borne in mind that the powers of High Courts and the
Supreme Court under the Constitution of India are extremely limited and they will be
reluctant to interfere with or disturb the decisions of specially constituted authorities
and tribunals under a statute on the ground that the evidence was inadequate or
57

insufficient, or that detailed reasons were not given. The Supreme Court and High
Courts are not courts of appeal and revision over the decisions of administrative
tribunals.

Administrative Adjudication

Reasons for the growth of administrative adjudication

1. The functions of the state have increased due to the coming in of the concept of a
welfare state. This has led to several situations where there are disputes between
citizens or between citizens and the state and thus a proper mechanism is required to
settle such disputes.

2. The courts of today are already overburdened with cases.

3. Court procedure is very time consuming and dilatory, requiring several formalities
to be completed. Administrative adjudication does not follow such procedural
requirements and is thus faster.

4. Following court procedure not only leads to overburdening of the judiciary but due
to the slow and cumbersome process, administrative decisions and policies also remain
blocked

5. Further, due to the changes in society certain new socio-economic problems have
come up which need to be decided not just based on law and facts but also on the
basis of policy considerations

6. Judges generally take a very rigid and technical approach applying only the law in
its literal sense to every problem. This is not a practical approach when it comes to
solving new problems which the law may not always have a solution to.

7. Further, judges are generalists applying general principles of the law. Problems of
the society require expertise and specialised knowledge which is possessed by the
administrative authorities.

8. However, there are certain drawbacks of administrative adjudication as well. The

judiciary is independent from the other governmental organs while the administrative
tribunals cannot possibly remain independent. Also, the procedure followed by the
judiciary such as cross examination of witnesses, giving reasoned decisions, etc. may
not always be present in case of administrative adjudication.

Difference between quasi-judicial and administrative functions

Administrative function. Quasi-judicial function

A) It does not affect the rights of private parties.

It affects the rights of private individuals and binds such individuals.

B) It does not follow any particular procedure unless provided by the parent statute.
58

It must necessarily follow the principles of natural justice as part of its procedure.

C) It may not be provided for under an statute as such.

It must necessarily involve a statutory exercise of power.

D) There may be delegation of such functions.

There can be no delegation of such functions unless expressly provided by statute.

UNIT 4

NATURAL JUSTICE

Discuss with the help of decided cases how Bias affects a decision in various ways.

Discuss the ‘Rule against bias’ referring to leading decisions.

‘Rule against bias’ is one of the concepts of ‘Fair Hearing.’ Discuss with the help of
decided cases.

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

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

• ‘Justice should not only be done, but manifestly and undoubtedly be seen to be
done.’

• ‘Judges, like Caesar’s wife, should be above suspicion.’

Meaning

According to the dictionary meaning ‘anything which tends or may be regarded as

tending to cause such a person to decide a case otherwise than on evidence must be
held to be biased.’ A predisposition to decide for or against one party, without proper
regard to the true merits of the dispute is bias.

Doctrine Explained

The first requirement of natural justice is that the Judge should be impartial and
neutral and must be free from bias. He is supposed to be indifferent to the parties to
the controversy. He cannot act as Judge of a cause in which he himself has some
interest either pecuniary or otherwise as it affords the strongest proof against
neutrality. He must be in a position to act judicially and to decide the matter
objectively. A Judge must be of sterner stuff. His mental equipoise must always remain
firm and unelected. He should not allow his personal prejudice to go into the decision-
making. ‘The object is not merely that the scales be held even; it is also that they
may not appear to be inclined.’"
59

If the Judge is subject to bias in favour of or against either party to the dispute or
is in a position that a bias can be assumed, he is disqualified to act as a Judge, and
the proceedings will be vitiated. This rule applies to the judicial and administrative
authorities required to act judicially or quasi-judicially.

Types of Bias

Bias is of four types:

1. Pecuniary bias,

2. Personal bias,

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

4. Judicial obstinacy.

1))Pecuniary Bias :It is well-settled that as regards pecuniary interest ‘the least
pecuniary interest in the subject-matter of the litigation will disqualify any person
from acting as a Judge.’ Griffith and Street rightly state that “a pecuniary interest,
however slight, will disqualify, even though it is not proved that the decision is in
any way affected.”

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

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

Dimes v. Grant Junction Canal is considered to be the classic example of the

application of the rule against pecuniary interest. In this case, the suits were decreed
by the ViceChancellor and the appeals against those decrees were filed in the Court
of Lord Chancellor Cottenham. The appeals were dismissed by him and decrees were
confirmed in favour of a canal company in which he was a substantial shareholder.
The House of Lords agreed with the Vice-Chancellor and affirmed the decrees on
merits. In fact, Lord Cottenham's decision was not in any way affected by his interest
as a shareholder; and yet the House of Lords quashed the decision of Lord
Cottenham.

2) Personal Bias :The second type of bias is a personal one. A number of

circumstances may give rise to personal bias. Here a Judge may be a relative, friend
or business associate of a party. He may have some personal grudge, enmity or
grievance or professional rivalry against such party. In view of these factors, there is
every likelihood that the Judge may be biased towards one party or prejudiced
towards the other.

In State of U.P. v. Mohd. Nooh, a departmental inquiry was held against A by B.

As one of the witnesses against A turned hostile, B left the inquiry, gave evidence
against A, resumed to complete the inquiry and passed an order of dismissal. The
Supreme Court held that ‘the rules of natural justice were completely discarded and
all canons of fair play were grievously violated by B.’
60

In the leading case of A.K. Kraipak v. Union of India, one N was a candidate for
selection to the Indian Foreign Service and was also a member of the Selection
Board. N did not sit on the Board when his own name was considered. Name of N
was recommended by the Board and he was selected by the Public Service
Commission. The candidates who were not selected filed a writ petition for quashing
theselection of N on the ground that the principles of natural justice were violated.

3)Official Bias: The third type of bias is official bias or bias as to the subject-matter.
This may arise when the Judge has a general interest in the subject-matter.

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

In GullapalliNageswara Rao v. A.P.S.R.T.C., the petitioners were carrying on a motor

transport business. The Andhra State Transport Undertaking published a scheme for
nationalization of motor transport in the State and invited objections. The objections
filed by the petitioners were received and heard by the Secretary and thereafter the
scheme was approved by the Chief Minister. The Supreme Court upheld the
contention of the petitioners that the official who heard the objections was ‘in
substance’ one of the parties to the dispute and hence the principles of natural justice
were violated.

4.Judicial Obstinacy :There may also be a judicial bias, i.e. Bias on account of judicial
obstinacy

In State of W.E. v. Shivananda Pathak, a writ of mandamus was sought by the

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

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

Conclusion : In the opinion of the Authors, direct pecuniary interest, however small
or slight it may be, will disqualify a person from acting as a Judge. In case of other
interests, however, the test should be of ‘reasonable likelihood of bias.’ It must be
based on reasonable apprehension of a reasonable man fully apprised of all the facts.
It is no doubt desirable that all Judges, like Caesar's wife must be above suspicion.
61

But it would be too much to hold that only those people who cannot be suspected of
improper motives are qualified to discharge judicial functions, else to quash decisions
on the basis of suspicions of fools or other capricious unreasonable people.A ground
reality cannot be ignored that Judges are also human, and they have their likes and
dislikes, preferences and prejudices and it is too much to expect them to act as a
machine uninfluenced by worldly affairs.

Audi alterm partem’is sine quo non of right of ‘fair hearing.’ Discuss with the
help of decided cases.

Explain the concept of ‘fair hearing’ with the help of decided cases.

When is ‘Personal Hearing’?

Whether a Personal Hearing is necessary to satisfy natural justice in all cases?

Introduction:

There are certain basic values which a man has always cherished. They can be
described as natural law or divine law. As a reasonable being, a man must apply this
part of law to human affairs. The underlying object of rules of natural justice is to
ensure fundamental liberties and rights of subjects. They thus serve public interest.
The golden rule which stands firmly established is that the doctrine of natural justice
is not only to secure justice but to prevent miscarriage of justice. Its essence is good
conscience in a given situation; nothing more – but nothing less.

Meaning

Audi alteram partem means ‘hear the other side’, or ‘no man should be condemned
unheard’ or ‘both the sides must be heard before passing any order.’

Doctrine Explained

The second fundamental principle of natural justice is audi alteram partem, i.e. no man
should be condemned unheard, or both the sides must be heard before passing any
order. This is the basic requirement of rule of law. It has been described as
‘foundational and fundamental’ concept. It lays down a norm which should be
implemented by all courts and tribunals at national as also at the international level. In
short, before an order is passed against any person, reasonable opportunity of being
heard must be given to him. Generally, this maxim includes two elements:

• Notice; and

• Hearing

Notice

Before any action is taken, the affected party must be given a notice to show cause
against the proposed action and seek his explanation. It is a sine qua non of the
62

right of fair hearing. Any order passed without giving notice is against the principles
of natural justice and is void ab initio.

In R. v. University of Cambridge, Dr Bentley was deprived of his degrees by the

Cambridge University on account of his alleged misconduct without giving any notice
or opportunity of hearing. The Court of King’s Bench declared the decision as null
and void.

The object of a notice is to give an opportunity to the individual concerned to

present his case and, therefore, if the party is aware of the charges or allegations, a
formal defect would not invalidate the notice, unless prejudice is caused to the
individual. If the government servant is placed under suspension and the inquiry is
held at a different place from the place of his residence and he is not able to attend
the inquiry due to nonpayment of subsistence allowance, the inquiry is vitiated.
Whether prejudice is caused or not is a question of fact and it depends upon the
facts and circumstances of the case. Moreover, the notice must give a reasonable
opportunity to comply with the requirements mentioned therein. Thus, to give 24
hours’ time to dismantle a structure alleged to be in a dilapidated condition is not
proper and the notice is not valid. If the inquiry is under Article 311 of the
Constitution of India, two notices (first for charges or allegations and second for
proposed punishment) should be given. Where a notice regarding one charge has been
given, the person cannot be punished for a different charge for which no notice or
opportunity of being heard was given to him.

Hearing

The second requirement of audialterampartem maxim is that the person concerned

must be given an opportunity of being heard before any adverse action is taken
against him.

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

The extent of opportunity of hearing to be given is neither dependent upon the

quantum of loss to the aggrieved person nor referable to the fatness of the stake but
is essentiallyrelated to the demands of a given situation. Therefore, if a show cause
notice is issued and the explanation is considered before taking action under the
statutory provisions, the rules of natural justice cannot be said to have been violated
on the ground that more opportunity should have been afforded as a huge amount
was at stake.

Disclosure of Materials

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

enable him to prepare his defence, rebut the evidence relied upon by the complainant
against him and put forward his case before the authority.

Cross-Examination

Cross-examination was never considered to be part and parcel of the doctrine of

natural justice. It always depends upon the facts and circumstances of each case
whether an opportunity of cross-examination should be given to a party against whom
proceedings have been initiated. If a statute permits cross-examination of witnesses
examined at the inquiry or adjudication, obviously, the opposite party can claim right
to cross-examine them. Normally, in disciplinary proceedings as also in domestic
inquiries, right of cross-examination is not denied.

In Khem Chand v. Union of India, the Supreme Court held that an opportunity to
defend a delinquent by cross-examining the witnesses produced against him is an
important right. Oral or Personal Hearing

Oral or Personal Hearing

An adjudicating authority must observe the principles of natural justice and must give
a reasonable opportunity of being heard to the person against whom the action is
sought to be taken. But in England and in Americas, it is well-settled law that in
absence of statutory provision, an administrative authority is not bound to give the
person concerned an oral hearing.

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

In MP. Industries Ltd v. Union of India, Subba Rao, observed: “It is no doubt a
principle of natural justice that a quasi-judicial tribunal cannot make any decision
adverse to a party without giving him an effective opportunity of meeting any relevant
allegations against him but the said opportunity need not necessarily be by personal
hearing. It can be by written representation. Whether the said opportunity should be
by written representation or by personal hearing depends upon the facts of each and
ordinarily it is in the discretion of the tribunal.” Thus, it is well-established that the
principles of natural justice do not require personal hearing and if all the relevant
circumstances have been taken into account before takingthe impugned action, the said
action cannot be set aside only on the ground that personal hearing was not given.

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

’ But at the same time, it must be remembered that a ‘hearing’ will normally be an
oral hearing. As a general rule, ‘an opportunity to present contentions orally, with
whatever advantages the method of presentation has, is one of the rudiments of the
fair play required when the property is being taken or destroyed. de Smith also says
64

that “in the absence of clear statutory guidance on the matter, one who is entitled to
the protection of the aud alteram partem rule is now prima facie entitled to put his
case orally.”

Again, if there are contending parties before the adjudicating authority and one of
them is permitted to give oral hearing the same facility must be afforded to the other,
or where complex legal and technical questions are involved or where stakes are very
high, it is necessary to give oral hearing. Thus, in the absence of statutory
requirement about oral hearing, courts will have to decide the matter taking into
consideration the facts and circumstances of the case.

What is ‘Speaking order’?

Introduction: A ‘speaking order’ means an order speaking for itself. To put it simply,
every order must contain reasons in support of it.

Importance

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

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

Object

There is no general rule of English law that reasons must be given for administrative
or even judicial decisions. In India also, till very recently it was not accepted that the
requirement to pass speaking orders is one of the principles of natural justice. But as
Lord Denning says, “the giving of reasons is one of the fundamentals of good
administration.” The condition to record reasons introduces clarity and excludes
arbitrariness and satisfies the party concerned against whom the order is passed. Today,
the old ‘police State’ has become a ‘welfare State.’ The governmental functions have
increased, administrative tribunals and other executive authorities have come to stay
and they are armed with wide discretionary powers and there are all possibilities of
abuse of power by them. To provide a safeguard against the arbitrary exercise of
powers by these authorities, the condition of recording reasons is imposed on them. It
is true that even the ordinary law courts do not always give reasons in support of the
orders passed by them when they dismiss appeals and revisions summarily. But
regular courts of law and administrative tribunals cannot be put at par.

General Propositions: The law relating to ‘speaking orders’ may be summed up thus:

1. Where a statute requires recording of reasons in support of the order, it imposes

an obligation on the adjudicating authority and the reasons must be recorded by the
authority.

2. Even when the statute does not lay down expressly the requirement of recording
reasons, the same can be inferred from the facts and circumstances of the case.

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

5. Even ‘fair play in action’ requires that an adjudicating authority should record
reasons in support of order passed by it

6. There is no prescribed form and the reasons recorded by the adjudicating authority
need not be detailed or elaborate and the requirement of recording reasons will be
satisfied if only relevant reasons are recorded.

7. A writ court cannot interfere with an order passed by an adjudicating authority

only on the ground that the reasons recorded by such authority are inadequate or
insufficient.

8. If, however, the reasons recorded by such authority are factually incorrect, legally
untenable or totally foreign or irrelevant to the issue involved in the lis, the power of
judicial review can be exercised.

9. It is not necessary for the appellate authority to record reasons when it affirms
the order passed by the lower authority.

10. Where the lower authority does not record reasons for making an order and the
appellate authority merely affirms the order without recording reasons, the order passed
by the appellate authority is bad.

11. Where the appellate authority reverses the order passed by the lower authority,
reasons must be recorded, as there is a vital difference between an order of reversal
and an order of affirmation.

12. The validity of the order passed by the statutory authority must be judged by the
reasons recorded therein and cannot be construed in the light of subsequent
explanation given by the authority concerned or by filing an affidavit.

13. If the reasons are not recorded in support of the order it does not always vitiate
the action.

14. The duty to record reasons is a responsibility and cannot be discharged by the
use of vague general words.

15. If the reasons are not recorded, the court cannot probe into reasoning of the
order.

16. The doctrine of recording reasons should be restricted to public law only and
should not be applied to private law e.g. arbitration proceedings.
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17. The rule requiring reasons to be recorded in support of the order is one of the
principles of natural justice.

18. Normally, the reasons recorded by the authority should be communicated to the
aggrieved party.

19. Even when the reasons are not communicated to the aggrieved party in public
interest, they must be in existence.

20. The reasons recorded by the statutory authority are always subject to judicial
scrutiny.

Or

Reasoned Decision

1. In England, there is a general rule that reasoned decisions are not required while
following principles of natural justice. However, the Franks Committee in its report
stated that even administrative bodies must give reasons for their decisions. This got
statutory recognition under S.12 of the Tribunals and Enquiries Act.

2. In the US, the Administrative Procedure Act also provides for the same.

3. A reasoned decision is required because of the following

(a) To reduce arbitrariness as when the authorities would know that they would have
to give reasons for their decision, they would be more careful while considering the
case and not merely rely on policy as such.

(b) To bring about justice as justice must not only be done but also must be seen
to be done.

(c) It gives a firm basis to the case and supports the decision when there is an
appeal. Thus, there is scope for judicial review

(d) It acts as res judicata.

4. If a statute in India expressly provides that reasons must be given for any decision
taken, the adjudicating authority must necessarily adhere to the same. However, this
may not always be the case. But, the courts have now substituted it with the
principles of natural justice and constitutional provisions.

5. In the US, due to the existence of the due process doctrine, it is necessary to
give reasons for every decision taken. It is a procedural requirement that the executive
shall implement what is just and reasonable.

6. In India, after the case of Maneka Gandhi v. Union of India, the concept of
reasoned decision assumed greater importance. In this case, the term ‘procedure
established by law’ in Art. 21 of the constitution was deemed to include the due
process principle as it is followed in the US. Thus, greater emphasis was now laid on
67

the principles of natural justice. (Read ADM Jabalpur case, Indira Gandhi v. Raj
Narain and AK Gopalan’s case)

7. In Bhagat Raja v. Union of India, it was held that both the authority which hears
the case at the first instance as well as the appellate authority must furnish reasons
for their decision. 8. In AnumatiSadukhan v. AK Chatterjee, it was held that an order
empowering an authority to cancel a licence without giving reasons is invalid.

9. Further, it is not sufficient for the authority to furnish such information which has
already been written down in the statute as reasons. Adequacy of reasons however
differs from case to case

10. Also, the adjudicatory authority must necessarily maintain a record of the hearing
along with the reasons for future reference.

Institutional Decision:

1.Institutional decision is one which is taken by the designated official with the
assistance of his subordinates in the department

2. It is called institutional due to it being taken by the department as a whole.

3. There are however two main problems associated with it namely, the authorship of
the decision is unknown and secondly it leads to division in the decision making
process.

4. In Local Government Board v. Alrdige, the borough council declared a house unfit
for human habitation and asked for its closure. The landlord approached the Local
Government Board to conduct investigations and help him. The Board asked an
inspector to carry out the task who in his final report stated that the house was infact
unfit for habitation. This was challenged by the landlord who stated that he had not
been given a fair hearing as he was not allowed to be heard by the officer who had
actually examined the case. The court held otherwise stating it to an institutional
decision. Herein it is not necessary to identify the officer who had conducted the
enquiry as the decision is deemed to be that of the department. Further, in this case it
is not necessary that the official conducting enquiry must hear the case as well as is
seen in case of judicial decisions.

5)Another point of difference between institutional decision and a judicial decision is

that in an institutional decision not all evidence against the person may be provided
to him.

6. Institutional decision is different from the decision of a single official or

administrative tribunal as it is the decision of the department.

7. In the US, the Administrative Procedure Act has provisions for regulation of
institutional decisions. In UK as well, it is an accepted fact that when a decision is
to be taken by a minister it means that such decision is to be taken by the department
as a whole.
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8. In Union of India v. ShripatiRajan, the respondent was dismissed from service by

the collector of customs. As per the law, he appealed to the President but his appeal
was dismissed by the Finance Minister without consideration by the President. The SC
held such decision as being valid as the Finance Minister disposed off the case in
accordance with the rules of business and the President is a mere constitutional head.
It was thus an institutional decision.

9. In Mahavir Prasad Santosh Kumar v. State of UP, it was held that an executive
authority can exercise power through their subordinates.

10. Generally speaking, the report made by the hearing officer which is submitted
before the authority which sits in judgment is not necessary unless it prejudices the
case to a great extent.

Discuss the various exceptions to the principle of ‘Natural Justice’ with the help
of decided cases.

Introduction : Though the rules of natural justice, namely, nemo judex in causa sua
and audi alteram partem, have now a definite meaning and connotation in law, and
their content and implications are well-understood and firmly established, they are
nonetheless not statutory rules. Each of these rules yields to and changes with the
exigencies of different situations. They do not apply in the same manner to situations
which are not alike. These rules are not cast in a rigid mould nor can they be put in
a legal strait-jacket. They are not immutable but flexible. These rules can be adopted
and modified by statutes and statutory rules and also by the constitution of the
tribunal which has to decide a particular matter and the rules by which such tribunal
is governed. There are, however, situations which demand the exclusion of the rules
of natural justice by reason of diverse factors like time, place, the apprehended danger
and so on.

Circumstances

1. Where a statute either expressly or by necessary implication excludes application of

natural justice;

2. Where the action is legislative in character, plenary or subordinate;

3. Where the doctrine of necessity applies;

4. Where the facts are admitted or undisputed

; 5. Where the inquiry is of a confidential nature;

6. Where preventive action is to be taken;

7. Where prompt and urgent action is necessary;

8. Where nothing unfair can be inferred by non-observance of natural justice.

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Conclusion : One thing should be noted. Inference of exclusion of natural justice

should not be readily made unless it is irresistible, since the courts act on
presumption that the legislature intends to observe the principles of natural justice and
those principles do not supplant but supplement the law of the land. Therefore, all
statutory provisions must be read, interpreted and applied so as to be consistent with
the principles of natural justice.

Discuss with the help of decided cases the effect of breach of contravention of
the principles of natural justice.

Introduction:

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

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

So far as India is concerned, it is fairly well settled and courts have consistently
taken the view that whenever there is violation of any rule of natural justice, the
order is null and void.

Thus, where appointment of a government servant is cancelled without affording an

opportunity of hearing, or where an order retiring a civil servant on the ground of
reaching superannuation age was passed without affording an opportunity to the
employee, or where a passport of a journalist was impounded without issuing notice;
or where a liability was imposed by the Commission without giving an opportunity of
being heard to the assesse; the actions were held to be a nullity and orders void ab
initio.

The same principle applies in respect of bias and interest. A judgment which is the
result of bias or want of impartiality is a nullity and the trial 'coram non judice' .

Test

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

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

Some additional points

Principles of Natural Justice or fairness

Nemo judex in re sua

1.This maxim literally means that no one should be a judge in his own cause.

2. It thus speaks about the rule against bias. If there is bias, the decision given will
be unfair.

3. The rule of bias has 2 connotations- no person can be a judge in his own cause
and justice must not only be done but also be seen to be done.

4. Bias is generally of three kinds- pecuniary bias, personal bias and subject matter or
policy bias.

5. Incase of pecuniary bias, even the slightest of pecuniary interests may disqualify a
person from acting as a judge.

6. In Annamalai v. Madras, it was held that a permit granted by the regional transport
authority to one of its members amounts to bias and thus such order needs to be
quashed.

7. Personal bias may come up due to various reasons such as friendship, animosity,
etc. 8. In Mineral Development Ltd. v. Bihar, it was seen that the revenue minister
cancelled the petitioner’s license for a lease on account of personal animosity. Thus,
there existed a bias in this case.

9. In England, the rule which was previously followed was that of ‘likelihood of
bias’. This means that it is not bias what the judiciary feels it is but it is what the
reasonable man considers it to be bias.

10. This test was followed by the broader ‘reasonable suspicion’ test which states that
even when a reasonable man would not construe something as being bias, if there is
reasonable suspicion in the mind of the judiciary that there infact exists such bias,
the person cannot be allowed to judge. This test is mainly the outcome of the fact
that justice must not just be done but it must be seen to be done.

11.This maxim has been followed in India as well. Proof of bias is not required as
the same is very difficult to prove. It is sufficient if there is a reasonable suspicion of
bias. This was also held in AK Kraipak v. Union of India.

12. There may also exist a subject matter or a policy bias which has often been
termed as an official bias. This may be seen especially in case of administrative
adjudication wherein the adjudicator being part of the administration might have a bias
towards the policy.
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13.However, it may be very difficult to exactly lay down as to what shall come
under such bias.

14. One of the factors is that there must be a direct and close connection between
the adjudicating authority and the issue at hand.

15.In Parthasarathiv.Andhra Pradesh, it was held that an officer who has framed
charges cannot act as the inquiry officer in disciplinary proceedings against an officer.

16.In Hari v. Deputy Commissioner of Police, an externment order was passed by the
Deputy Commissioner of Police. This was challenged on the grounds of bias as it
was the police department which had initiated the proceedings and also sat as judge
in the case. However, the SC held that as the proceedings were initiated by an officer
above the rank of inspector, the Commissioner could only pass such order and thus
there was no bias. Hence, it may be seen that there will be no presumption of bias if
the case involved 2 officers of the same department provided the posts are held by 2
different persons.

17.In GullapalliNageshwar Rao v. Andhra Pradesh State Road Transport Corporation,

an authority had the power to regulate transport activities in the state. The General
Manager of this body made rules for nationalisation of transport in the Krishna district
of Andhra Pradesh whereby private transport companies would require a license from
the government. 88 objections were raised and were all heard by the Secretary of the
Transport Department and later a report was given to the Chief Minister. It was held
that the secretary here had departmental bias and thus could not have given a fair
decision. 18.In Kameshwar Prasad v. State of Bihar, as well the court maintained the
distinction between the Chief Minister and the Secretary. It was stated that when the
decision is taken by the Secretary, it amounts to bias as the secretary is part of the
department. Also, it was stated that the principles of natural justice cannot be dragged
to any sphere and there must be a limitation on the same.

19.In Maharashtra State Secondary and Higher Secondary Board v. Paritosh Kumar,
students got less marks in their HSC and thereby asked to take a look at their papers
to ascertain the marking scheme. However, the parent statute provided only for a
revaluation of marks and nothing else. The petitioner claimed that the Board’s decision
to refuse to show papers was invalid as they would have a bias in favour of their
teachers who corrected the papers. The SC held that there was no bias and that this
rule must not be dragged unnecessarily without any limitations. It stated that as the
Board merely followed express provisions of the statute, there was no bias as such

. 20. Thus, a need was felt to put some limitations on such rule and hence the
following exceptions have been provided for

(a) Statutory provisions If the parent statute provides expressly for a fair procedure, the
same must be followed and it need not be substituted by the principles of natural
justice. If however such procedure is ambiguous, the principles of natural justice
might come into play.

(b) Statutory limitationsThis is when specific limitations are laid down by the statute
itself to minimise bias in any form.
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(c) Contempt of CourtIncase of contempt of court , the rule cannot be used. A judge
or judges of the court might initiate proceedings against the party even if they are the
interested parties in such case.

(d) WaiverWhere the party knows about the existence of bias but does not object to
the same, he waives his right.

Audi Alteram Partem

1. This literally means ‘hear both sides’.

2. It has been taken to mean a fair hearing and includes the right to be represented
and right to defence oneself.

3. The first constituent of a fair hearing is the rule of notice. As per this rule,
adequate notice must be served on a person so that he may be informed about the
charges against him and he is able to prepare to defend himself.

4. A notice must always be adequate and must specify details with respect to charges,
time of hearing, etc.

5. It must be properly served on an individual and must give him sufficient time to
come up with his defence

6. It must not simply embody the language of the statute but must lay down required
details.

7. It must not be ambiguous as a vague notice is regarded as being no notice.

8. If the statute provides that notice is to be served on a person in a particular

manner or mode, it must be served in such manner unless otherwise necessary.

9. If the statute specifies a particular form in which notice is to be served, it must be

served in such form only. However, a minor irregularity will not be considered.

10. Whether a notice is adequate or not is to be decided by the court. The test is
whether the irregularity in the notice is such that it adversely affects the rights of the
person on whom it is served or not.

11. After the notice, there must be provision for a fair hearing

12. This means that the person against whom charges are levelled must be allowed to
present his case before the adjudicatory authority.

13. A personal or oral hearing is however not required. It is sufficient if the person
gets to present a written memoranda alongwith an explanation to the court

14. A fair hearing involves the following three essentials

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(a) The adjudicatory authority should receive all relevant material which the individual
wishes to produce.

(b) The authority must disclose to the individual as to what it wishes to use as
evidence against him

(c) The individual must be given an opportunity to rebut such charges.

15.In Dhakeshwari Cotton Mills Ltd. v. CIT, the authorities refused to accept account
books by the appellant as part of evidence. This was held to be violative of the
principles of natural justice.

16. However, the party cannot produce any amount of evidence unless such evidence
is relevant.

17. Also, the adjudicating authority might issue summons for attendance of witnesses.
But, they cannot compel such attendance unless the statute expressly provides for the
same.

18.In BrajlalManilal and Co. v. India, it was held that when the Central Government
considers a report of the state government as being evidence against the party
concerned, the same must be disclosed to such party

19.In Gurbachan Singh v.Bombay, the appellant was not allowed to cross examine
witnesses or have the witnesses examined before him. But, he was given an
opportunity to be heard. This was held by the SC as being valid as at times
witnesses might not like to depose in the presence of the party.

20.In Jammu and Kashmir v. Bakshi Ghulam Mohd., it was held that the defendant
would be only allowed to cross examine such witnesses as had deposed orally and not
others who had merely given affidavits.

21.Another question comes up with respect to the right of counsel. In AK Roy v.

Union of India, it was held that incase of preventive detention proceedings, if the
government or the detaining authority is represented through a legal practitioner or a
legal adviser, the person detained shall also have a right to such practitioner or
adviser. Herein, the court broadly interpreted the term ‘adviser’.
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UNIT 5

JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

Define ‘Administrative Discretion.’ Discuss the various grounds for judicial review of
administrative discretion of the executives.

Discuss the various grounds for judicial review of administrative discretions.

Introduction :

The traditional theory of 'laissez faire’ has been given up by the State, and the old
‘police State’ has now become a ‘welfare State.’ Because of this philosophy,
governmental functions have increased. The administrative authorities have acquired
vast discretionary powers and generally, exercise of those powers is left to the
subjective satisfaction of the administration without laying down the statutory
guidelines or imposing conditions. The administration administers law enacted by the
legislature and thus performs executive functions; it also enacts legislation when the
legislative powers are delegated to it by the legislature and it also interprets law
through administrative tribunals. Thus, practically there is concentration of all powers
in the hands of the administration – legislative, executive and judicial.

Meaning

Administrative Discretion

‘Discretion’, proclaimed Coke, “is a science or understanding to discern between

falsity and truth, between right and wrong, between shadows and substance, between
equity and colourable glosses and pretences, and not to do according to their wills
and private affections.” Thus, in short, here the decision is taken by the authority not
only on the basis of the evidence but in accordance with policy or expediency and in
exercise of discretionary powers conferred on that authority.

Judicial Review

According to dictionary meaning, ‘judicial review’ is ‘a procedure by which a court

can pronounce on an administrative action by a public body.’ ‘Judicial review’ may be
defined as a ‘court's power to review the actions of other branches of government,
especially the court's power to invalidate legislative and executive actions as being
unconstitutional.’

Judicial review is a great weapon in the hands of Judges. It comprises the power of
a court to hold unconstitutional and unenforceable any law or order based upon such
law or any other action by a public authority which is inconsistent or in conflict with
the basic law of the land. Broadly speaking, judicial review in India deals with three
aspects;

• Judicial review of legislative action;

• Judicial review of judicial decision; and

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• Judicial review of administrative action.

Grounds

While exercising power of judicial review, the Court does not exercise appellate
powers. It is not intended to take away from administrative authorities the powers and
discretion properly vested in them by law and to substitute courts as the bodies
making the decisions. Judicial review is a protection and not a weapon.

In the classic decision of Council of Civil Service Unions v. Minister for the Civil
Service, Lord Diplock highlighted the grounds by making the following remarkable,
instructive and oft-quoted observations: “Judicial review has I think developed to a
stage today when, without reiterating any analysis of the steps by which the
development has come about, one can conveniently classify under three heads the
grounds on which administrative action is subject to control by judicial review. The
first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural
impropriety.’ The Law Lord, however, rightly added: “That is not to say that further
development on a case by case basis may not in course of time add further grounds.
I have in mind particularly the possible adoption in the future of the principle of
‘proportionality’ which is recognized in the administrative law of several of our fellow
members of the European Economic Community.

” In Chief Constable v. Evans, Lord Brightman said, “Judicial review is concerned not
with the decision, but with the decision-making process. Unless that restriction on the
power of the court is observed, the court in my view, under the guise of preventing
the abuse of power, be itself guilty of usurping power.” The duty of the court is to
confine itself to the question of legality. Its concern should be:

1. whether a decision-making authority exceeded its powers?

2. committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

In India, the courts will interfere with the discretionary powers exercised by the
administration in the following circumstances:

• Failure to exercise discretion; or

• Excess or abuse of discretion.

Failure to Exercise Discretion

The main object of conferring discretionary power on an administrative authority is

that the authority itself must exercise the said power. If there is failure to exercise
76

discretion on the part of that authority the action will be bad. Such type of flaw may
arise in inter alia the following circumstances:

• Sub-delegation;

• Imposing fetters on discretion;

• Acting under dictation;

• Non-application of mind; and

• Power coupled with duty.

Excess or Abuse of Discretion

Excess or abuse of discretion may be inferred from the following circumstances:

(a) Acting without jurisdiction;

(b) Exceeding jurisdiction;

(c) Arbitrary action;

(d) Irrelevant considerations;

(e) Leaving out relevant considerations;

(f) Mixed considerations;

(g) Mala fide;

(h) Collateral purpose; Improper object;

(i) Colourable exercise of power;

(j) Colourable legislation: Fraud on Constitution

(k) Non-observance of natural justice;

(l) Unreasonableness.

JUDICIAL AND OTHER REMEDIES

State the scope of writ jurisdiction of the Supreme Court under Article 32 and of the
High Court under Article 226.

Discuss with the help of decided cases the role of fundamental rights in controlling
administrative discretion.
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Introduction : A ‘prerogative writ’, according to Common Law, is a formal order in

writing issued in the name of the sovereign, court or an authority commanding the
person to whom it is issued to do or refrain from doing some act specified therein.
The Founding Fathers of the Constitution of India were aware of the part played by
prerogative writs in England. They, therefore, made specific provisions in the
Constitution itself empowering the Supreme Court and High Courts to issue writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for
enforcement of Fundamental Rights (Articles 32 and 226) and also for other purposes
(Article 226).

Object

Right and remedy are really the two sides of the same coin and they cannot be
dissociated from each other. Therefore, whenever an individual is aggrieved by any
illegal action of an authority, certain remedies are available to him. The most
important remedy is issuance of prerogative writs.

Article 32 guarantees the right to move the Supreme Court by appropriate proceedings
for enforcement of fundamental rights guaranteed by Part III of the Constitution. Dr
Ambedkar, one of the principal architects of the Constitution, said about Article 32 as
under: “If I was asked to name any particular Article in this Constitution as the most
important Article without which this Constitution would be a nullity, I could not refer
to any other Article except this one. It is the very soul of the Constitution and the
very heart of it.”

The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by Part III of the Constitution (fundamental rights) is itself a
fundamental right. That being so, a right to obtain a writ when the petitioner
establishes a case for it, must equally be a fundamental right. It is, therefore, not
merely a right of an individual to move the Supreme Court, but also the duty and
responsibility of the Supreme Court to protect the fundamental rights.

Article 226 empowers every High Court to issue directions, orders or writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of
them. Such directions, orders or writs may be issued

• For enforcement of fundamental rights, or

• For any other purpose.

So far as the enforcement of fundamental rights is concerned, the jurisdiction of the

High Court is substantially the same as of the Supreme Court. If there is violation of
a fundamental right and it is the duty of the Supreme Court to enforce it, it is absurd
to contend that there is no such duty on High Courts to grant relief in case of
violation of fundamental rights.

In Devilal v. STO, it was rightly stated: “There can be no doubt that the
Fundamental Rights, guaranteed to the citizens are a significant feature of our
Constitution and the High Courts under Article 226 are bound to protect these
Fundamental Rights.”
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Nature and Scope

The jurisdiction of High Courts under Article 226 of the Constitution is equitable
and should be exercised to ensure that the law of the land is obeyed and public
authorities are kept within the limits of their jurisdiction. In a proceeding under
Article 226, the High Court does not determine private rights of parties. It is a
remedy against violation of rights by State or statutory authorities. It is a remedy in
public law.

Locus standi: Who may apply

Locus standi asks the question whether the petitioner is entitled to invoke the
jurisdiction of the court. This question is different from the question whether the
petitioner is entitled to the relief as prayed by him. In other words, there is a
distinction between locus standi and justiciability. If a person has no locus standi, he
cannot maintain a petition at all. But even if he has locus standi, he is not entitled
ipso facto to the relief claimed by him. The court will consider that question on
merits and decide it. The attitude of the courts on the question locus standi is not
uniform. They vary from country to country, court to court and case to case. In some
cases courts have taken a very narrow view holding that unless an applicant has
suffered legal injury by reason of violation of his legal right or legally protected
interest, he cannot file a petition. The other extreme view is that the courts may in
their discretion issue a writ at the instance of any member of public. A close
scrutiny, however, reveals that neither of the two extreme views is correct.

As a general rule, in order to have locus standi to file a petition, the petitioner
should be an ‘aggrieved person’. The expression denotes an elastic, and to some
extent, an illusive concept. According to the traditional theory, only a person whose
right has been infringed can apply to the court. But the modern view has liberalized
the concept of aggrieved person and the right-duty pattern commonly found in private
litigation has been given up. The only limitation is that such a person should not be
a total stranger, ‘busy body’ or interloper.

Against Whom the Writ would Lie

Ordinarily, a writ would lie against the State and statutory bodies and persons
charged with public duties. Though private persons are not immune from the writ
jurisdiction of the Supreme Court as well as of High Courts, issuance of a writ to
them would require exceptional circumstances.

As a general rule, a writ can be issued against Parliament and Legislatures of States,
Central and State Governments, all local authorities and other authorities. Rajasthan
State Electricity Board v. Mohan Lal is the leading decision wherein the Supreme
Court interpreted the expression “other authorities” in Article 12 liberally. The law
developed very fast thereafter and a number of authorities were held to be ‘State’
within the meaning of Article 12.

Procedural Aspects-Locus Standi, Latches, Res Judicata, Exhaustion of alternate

remedies
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Locus Standi

1. The provisions of Art.s 32 and 226 do not provide for any rule on standing as
such. This has largely been left on judicial discretion.

2. However, the general rule is that only an aggrieved person may move the court to
enforce his rights under the abovementioned provisions. This is primarily because
remedies are a correlative of rights and only those persons whose rights are infringed
might invoke the court’s jurisdiction to get the appropriate remedy.

3. This implies 3 things, namely(a) Only an aggrieved person may invoke the court’s
jurisdiction. (b) If such person belongs to a group or class of persons aggrieved by
administrative action, in order to file a suit, he must show that he has suffered
special injury and thus needs to be remedied. (c) If the person challenging is a total
stranger to the issue, the court would not normally allow him to continue.

4. However, if the above rule were to be followed in a country like India where
people may not come up to file a case or would due to poverty, ignorance, illiteracy,
etc. not be in a position to file a case in court, administrative action could simply go
unchallenged.

5. Therefore, the courts have tried to provide a somewhat balance by liberally

interpreting the term ‘aggrieved person’ and in certain cases allowing strangers to a
cause to file a suit. However, this largely depends on the discretion of the court.

6. However there is a distinction between standing and justiciability. A person may

have standing to move the court for enforcement of his rights but at the same time
his claim may not be justiciable or enforceable.

7. Inspite of modifications in the rule of standing, the general rule still stands. This
has been stated in BandhuaMuktiMorcha v. India. Exceptions may be made to the rule
only when the courts exercise their discretion to do so and when certain conditions
are satisfied.

8. A person has standing when his personal or individual right has been infringed. He
also has a standing when another person’s rights from whom he derives a benefit or
otherwise have been affected.

9. Also, a person may have standing even when a personal or constitutional right is
not violated but the court is satisfied that he has suffered a genuine grievance due to
action or inaction on the part of an authority.

10.In Gurunanak Society v. State, it was held that even an unauthorised owner of
land may move the court incase he has been removed from such land in an
unauthorised manner as in Indian law even an unauthorised owner has to be evicted
from land by a process authorised by law.

11.In Peermohammed v. DFO Tenmala, it was held that a person had no standing to
challenge illegal activity or construction going on in an adjoining land unless there is
nuisance or trespass or the same affects his easement rights.
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12.In MallappaMurigeppaSajjan v. Karnataka, it was held that the members of a

tribunal had the required standing to challenge suspension of the working of such
tribunal as being legally appointed members of the tribunal, their rights were adversely
affected by the decision.

13.In MS Jain v. Haryana, it was held that a person whose name was recommended
for appointment could not challenge a decision not to appoint him as he has no legal
right to get appointed.

14.In SP Subba Rao v. PP Veeraraghvaiah, it was seen that under statute there has to
be a minimum distance between a permanent cinema and a temporary cinema has to
be that of 1000m but the government could grant an exemption to the temporary
cinema owner. The court held that the permanent cinema owner had the right to
challenge such an exemption in order to protect his interests.

15. When a person does not at all participate in the proceedings, he has no standing
to challenge such proceedings later.

16.In Vijay Mehra v. Rajasthan, it was held that a member of a political party cannot
compel the government to constitute a commission for enquiring into certain floods as
it was a matter of executive discretion and the petitioner was not affected by such
floods.

17.In Karpoori Thakur v. Abdul Ghafoor, the court held that a member of Parliament
cannot ask for dissolution of the ministry on the ground of loss of confidence in the
house as the ministry is collectively responsible to the entire Parliament and not just
one legislator. Thus, only one of such members of Parliament does not have a
standing.

18.A different view was taken by the court in RamanaDayaram Shetty v.

International Airport Authority wherein it stated that while conferring a benefit, the
executive cannot act arbitrarily, illegally or in a discriminatory manner. Thus, the
view that the government has sole discretion in granting a benefit is no longer tenable.

19. If a person suffers an injury by virtue of being a member of an indiscriminate

class, he may file a suit only when he has suffered some sort of special injury which
is over and above the injury suffered by the others. This is to reduce the number of
cases that might be brought before the courts in such situations.

20.In Milap Ram v. Jammu and Kashmir, it was held that any member of a state
might file a petition challenging the grant of permanent residence of the state to a
particular person as the right of every such person is affected by such grant.

21. If a person’s legal right has been substantially affected, he will have a standing.
What shall be considered as being substantial or remote will depend on the facts and
circumstances of every case.

22.A determinate class of persons organised into a group or association also have
standing. In Warrangal Chamber of Commerce v. Director of Marketing, it was held
81

that a registered body corporate had the standing to file a case on behalf of its
members.

23.In Fertilizer Corporation Kamgar Union v. India, union have standing to file a
petition. it was held that members of a trade

24.Decisions of a municipality may also be challenged. In Ratlam municipality v.

Vardichand, it was held that the residents of the locality had the locus standi to move
the court asking for the municipality to construct drain pipes.

25.Even members of the municipality have the required standing to challenge a

governmental order when the rights of the municipality have been seriously affected by
such governmental action. (SL Kapoor v. Jagmohan)

26. There has however been a recent development in the form of Public Interest
Litigation which has led to a compromise in the general rule of locus standi.

27. By this rule, an individual or group of individuals might institute a case in court
even if they have no locus standi as per the general rule.

28. Such an exception is generally seen in 2 situations, namely(a) When an individual

or group of individuals institutes a case wherein their rights are only remotely affected
or when their rights are affected equally being part of the group due to administrative
action. (b) When any public spirited individual or body devoted to such cause brings
a cause of action before the court challenging administrative action which is
prejudicial to the interests of the general public or a section thereof.

29. This rule is generally allowed because at times the persons whose rights are
affected are not in a position to defend themselves due to illiteracy, ignorance,
poverty, etc. or simply when public interest at large is at stake.

30. However, such person or group of persons filing the case must have sufficient
interest in the case and must act bonafidely without any considerations such as
personal benefit, etc. Also, the court will not allow such petitions where the affected
party itself is disinterested. 31. Also, the courts consider only legal and justiciable
issues when it comes to PIL s and granting such PIL s is upto the court’s discretion.

32.A landmark case in this regard is that of SP Gupta v. India, wherein it was held
that lawyers have a locus standi to bring a case before the court which involved
appointment of additional judges in courts and frequent transfers of HC judges as
such lawyers are interested in the independence of the judiciary.

33.In BabubhaiJasbhai Patel v. India, it was seen that 2 opposition members of the
Gujarat legislature brought a case before the HC asking for reconsideration of payment
of royalty by ONGC to the state government in order to assert the claim of the state
government vis-a-vis the Union Government. This was rejected by the HC on the
ground that the matter involved here was that of high policy and individuals cannot
be allowed to take over governmental function. Further, the matter involved a question
under Art. 131 (Centre-state dispute) which
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could only be resolved by the SC

. 34.In People’s Union for Democratic Rights v. India, it was held that the union had
the standing to file a case on behalf of construction workers whose rights were being
infringed by contractors who had hired them for such worker by contravening several
laws

. 35.A similar case is that of Sanjit Roy v. Rajasthan, wherein it was held that the
petitioner who was a member of a registered social group could file a case bringing
to light the gross violations being committed by the state government in contravention
of the minimum wages act with respect to workers engaged in famine work.

36.Again in BandhuaMuktiMorcha v. India, the morcha, an organisation dedicated to

the cause of bonded labourers was decided as having standing to challenge inaction
by the government in implementing the provisions of the Bonded Labour System Act

. 37.In DS Nakara v. India, it was held that a registered society which was a non-
political, non-profit and voluntary organisation had standing to bring a case with
respect to problems of old pensioners.

38.With respect to writs of habeas corpus and quo warranto, the rule of aggrieved
person is not applicable.

Latches

This principle states that if a petitioner files his case after undue delay, his petition
shall be rejected on the ground of latches. This rule is applicable even in case of
violation of fundamental rights.

2. In RS Makashi v. IM Menon, the petition was filed 8 years after the alleged
infringement of fundamental rights under Art.s 14 and 16 by the executive and the
same was rejected on the ground of laches.

3. However, there is no hard and fast rule prescribed under Art.s 32 or 226 as to how
long would be considered enough to reject the petition on the ground of laches. This
matter is infact left to the discretion of the court as could be seen in RS Deodhar v.
Maharashtra, wherein a case filed for enforcement of rights even after a period of 10
years was held as being valid. However, in certain case even a gap of 6 months
could attract dismissal on the ground of laches.

4. In Nirmal Khosla v. India, it was held that if the government itself is responsible
for delay in disposal of the case of the petitioner and the same resulted in inordinate
delay in filing of the petition, the case will not be dismissed as it would then act to
the detriment of the petitioner who is not at fault in such a case

. 5. Sometimes when the government is one of the parties, a delay may be taken into
consideration by the court owing to the involvement of public interest in such a
situation. This was also held in UP v. Bahadur Singh.
83

6. The doctrine of laches is generally brought into the picture when a delay in filing
the case might adversely affect the interests of the other party or third parties. Incase
there exists no such situation, generally the provisions of the Limitation Act are taken
into consideration. This has been seen in the case of Madhya Pradesh v. Bhailal Bhai.

7. In the case of Tilokchand, the court held that the question of laches is one left to
the discretion of the court. Also, it is upto the court’s discretion whether to follow
the provisions of the limitation act or not.

Res Judicata

1. The principle of res judicata provides that when courts of competent jurisdiction
give binding decisions, the petition cannot be moved in the same court on the same
cause of action.

2. This is a principle of private law and is applicable to writ proceedings as well

3. Similarly, in Devilal v. ITO, it was held that when a tax assessment order has
been unsuccessfully challenged in the court, it cannot be challenged again through
another writ petition before the same court.

4. The reason for this principle is that the party will go on filing petitions thereby
causing harassment to the other party.

5. In LallubhaiJogibhai v. India, it was held that a habeas corpus petition could be

filed again if the grounds for granting such writ are different. However, again in
Kavita v. Maharashtra, it was held otherwise. Never the less the general rule followed
is that of the former case

6. Also, another rule emerges with respect to withdrawal of cases. However, it has
been observed that incase a case is withdrawn, there is no res judicata.

7. Also, where a writ petition is dismissed without speaking order, there is no res
judicata and there may be subsequent petitions filed. This is because on the absence
of grounds it is not possible to understand as to why such petition was dismissed.

8. Further, the HC cannot review its own decision based on its merits provided no
new evidence or matter is discovered.

9. If the HC dismisses a case on the basis of laches or availability of alternate remedies

or without passing a speaking order, there is no res judicata and the case may be
filed under Art. 32 before the SC.

10.The principle of res judicata has been made applicable between Art.s 32 and 226
due to the reason that both the SC and HC have more or less similar writ
jurisdictions.

11. This may be criticised on the ground that res judicata applies between courts of
the same jurisdiction. Never the less the SC has held that the SC and the HC are on
the same footing with respect to writ jurisdiction.
84

12.After dismissing a special leave petition, the SC will not accept a writ petition
under Art. 32 due to res judicata. However, exception may be made when the life of
a person is at stake.

13.When a special leave petition is dismissed by the SC, the case may not be
entertained under Art. 226 before the HC except when the former dismisses the case
without giving speaking order. However, if a special leave petition is withdrawn,
remedy under Art. 226 would still be available

14. Res judicata operates even when the case is dismissed under a writ petition and is
again filed under a regular petition.

Exhaustion of Alternate Remedies

1. Generally speaking, the court would decline to accept a case if there exists an
alternate and more efficacious remedy. However, if there is a violation of fundamental
rights and Art. 32 or 226 is invoked, the court cannot reject the case on such ground.

2. The petitioner need not prove that there is no other adequate remedy or that he
has exhausted all possible alternate remedies in such a case.

3. Thus, necessarily under Art. 32 this rule is to be followed. However, under Art.
226 when the case does not involve a fundamental right, the HC might ask the
petitioner to first exhaust all possible alternate remedies as was seen in the case of
Titaghur Paper Mills Co. Ltd. v. Orissa.

4. However, whether or not to resort to the same is a matter of discretion available

to the HC. For example if a person has lost a right to exercise a particular remedy
due to no fault of his own, the HC would not ask him to first exhaust alternative
remedies.

5. Further, an alternate remedy need not be resorted to where it leads to inordinate

delays or is illusory in nature.

6. A HC could issue a writ of certiorari even without exhaustion of alternate remedy

when there is a violation of the principles of natural justice.

Discuss the meaning, nature and scope of a Public Interest Litigations

Introduction : A novel and recent feature of the Indian Legal System is the rapid
growth and development of public interest litigation. In a number of cases, the
Supreme Court as well as many High Courts have entertained petitions and ‘letters’
not only by the persons who can be said to be ‘aggrieved’ or adversely affected in
strict sense of the term by any action or omission by the respondents but acting pro
bono publico.

Nature

Public interest litigation is a totally different field of litigation from the ordinary
traditional litigation which is essentially of an adversary character, where there is a
85

dispute between two litigating parties, one making claim or seeking relief against the
other and that person opposing such claim or resisting such relief. Public interest
litigation is brought before the court not for the purpose of enforcing the right of one
individual against another as happens in the case of ordinary litigation, but it is
intended to promote and vindicate public interest which demands that violations of
constitutional or legal rights of a large number of people who are poor, ignorant or in
a socially or economically disadvantaged position should not go unnoticed and
unredressed.

Object

Public interest litigation is a challenge and an opportunity to the Government and its
officers to make basic human rights meaningful to the deprived and vulnerable
sectionsof the community and to assure them social and economic justice is the
signature tune of our Constitution. In public interest litigation, the role held by the
court is more assertive than in traditional actions; it is creative rather than passive,
and it assumes a more positive attitude in determining facts.

Illustrative cases

In the leading case of S.P. Gupta v. Union of India, (popularly known the Judges'
Transfer case), the Supreme Court entertained petitions by lawyers challenging the
constitutionality of Law Minister's circular regarding transfer and non-confirmation of
Judges of High Courts. Similarly, in People's Union for Democratic Rights v. Union
of India, (Asiad case), a petition by public-spirited organization on behalf of persons
belonging to socially and economically weaker section employed in the construction
work of various projects connected with the Asian Games, 1982 complaining of
violation of various provisions of labor laws was held maintainable. In D.S. Nakara v.
Union of India, it was held that a registered cooperative society consisting of public-
spirited citizens seeking to espouse the cause of old and retired infirm pensioners
unable to seek redress through expensive judicial procedure can approach the court by
filing a petition. Likewise, a public-spirited organization was held entitled to move the
court for release of bonded labourers working in stone quarries, or against unjustifiable
police atrocities, and for compensation. A guardian of a student of a medical college
can complain to the court about ragging of junior students by senior students to the
college. A professor of politics ‘deeply interested in ensuring proper implementation of
the constitutional provisions’ can approach the court against practice of issuing
promulgation of ordinances on large scale being fraud on the Constitution of India.

Conclusion : The court must be careful to ensure that the petitioner who approaches
it is acting bona fide and not for personal gain, private profit or for political or other
oblique considerations. In other words, it is not only the right but the duty of the
court to make sure that the judicial process should not be abused or misused in the
name of public interest litigation or with a view to achieving private goals or political
objectives. The court must also take care to see that it does not overstep the limits of
its judicial function and trespass into areas which are reserved for the executive or the
legislature by the Constitution.
86

WRITS

1: Writ of Habeas corpus

What is ‘Rule Nisi’? Explain.

Introduction : The writ of habeas corpus is one of the most ancient writs known to
the common law of England. The Latin phrases ‘habeas corpus’ means ‘have the body’.
This is a writ in the nature of an order calling upon the person who has detained or
arrested another to produce the latter before the court, in order to let the court know
on what ground he has been confined and to set him free if there is no legal
justification for the imprisonment. In other words, by this writ, the court directs the
person or authority who has detained another person to bring the body of the prisoner
before the court so that the court may decide the validity, jurisdiction or justification
for such detention.

Object

The writ of habeas corpus provides a prompt and effective remedy against illegal
restraints. The principal aim is to provide for a swift judicial review of alleged
unlawful detention. As Lord Wright states, “the incalculable value of habeas corpus is
that it enables the immediate determination of the right of the Appellant's freedom.” If
the court comes to the conclusion that there is no legal justification for the
imprisonment of the person concerned, the court will pass an order to set him at
liberty forthwith. Thus, the object of the writ of habeas corpus is to release a person
from illegal detention and not to punish the detaining authority. The question for the
court to answer in a habeas corpus case is whether the subject is lawfully detained. If
he is, the writ cannot be issued, if he is not, it must be issued.

Who may apply

An application for the writ of habeas corpus may be made by the person illegally
detained. But if the prisoner himself is unable to make such application, it can be
made by any other person having interest in the prisoner. Thus, a wife, husband,
father, mother, sister, or even a friend may in such circumstances make an application
for the writ of habeas corpus. He should not, however, be a total stranger.

Against whom habeas corpus lies

A writ of habeas corpus may be issued against any person or authority who has
illegally detained or arrested the prisoner.

Procedure

Every application for the writ of habeas corpus must be accompanied by an affidavit
stating the facts and circumstances leading to the making of such an application. If
the court is satisfied that there is a prima fade case for granting the prayer, it will
issue a rule nisi calling upon the detaining authority on a specified day to show cause
as to why the rule nisi should not be made absolute.
87

On the specified day, the court will consider the merits of the case and will pass an
appropriate order. If the court is of the opinion that the detention was not justified, it
will issue the writ and direct the detaining authority to release the prisoner forthwith.
On the other hand, if according to the court, the detention was justified, the rule nisi
will be discharged. Where there is no return to the rule nisi, the prisoner is entitled
to be released forthwith. The court has jurisdiction to grant interim bail pending
disposal of a petition, though normally, it should not be granted. In exceptional
circumstances, a petition is maintainable even if the person is not actually detained.
Such exercise, however, can be undertaken by a writ-court ‘with extreme care, caution
and circumspection.’

2) The WRIT OF MANDAMUS

Introduction:

The word ‘mandamus’ means ‘the order’. The writ of mandamus is thus an order by a
superior court commanding a person or a public authority (including the Government
and public corporation) to do or forbear to do something in the nature of public duty
or in certain cases of a statutory duty. For instance, a licensing officer is under a
duty to issue a licence to an applicant who fulfils all the conditions laid down for the
issue of such licence. But despite the fulfillment of such conditions if the officer or
the authority concerned refuses or fails to issue the licence the aggrieved person has
a right to seek the remedy through a writ of mandamus.

Nature and Scope

Mandamus means a command. It is an order issued by a court to a public authority

asking it to perform a public duty imposed upon it by the Constitution or by any
other law. Mandamus is a judicial remedy which is in the form of an order from a
superior court (the Supreme Court or a High Court) to any Government, court,
corporation or public authority to do or to forbear from doing some specific act
which that body is obligedunder law to do or refrain from doing, as the case may
be, and which is in the nature of a public duty and in certain cases of a statutory
duty.

Object

The primary object of mandamus is to supply defect of justice. It seeks to protect

the rights of a citizen by requiring enforcement and fulfillment of imperative duty
created by law. It thus promotes justice. It should, therefore, be used on all occasions
where the law has conferred right but has created no specific remedy. Through this
writ, a court can correct all errors which tend to the oppression of the subject and
grant him appropriate relief.

Conditions

A writ of mandamus can be issued if the following conditions are satisfied by the
petitioner:

Legal Right
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The petitioner must have a legal right. This is a condition precedent. It is elementary
that no one can ask for mandamus without a legal right. There must be legally
protected and judicially enforceable right before an applicant may claim mandamus. A
person can be said to be aggrieved only when he is denied a legal right by someone
who has a legal duty to do something or to abstain from doing something. The
existence of right is thus the foundation of the jurisdiction of a writ-court to issue
mandamus.

Legal duty

The second requirement for a writ of mandamus is that the opposite party must have
a legal duty to be performed. A legal duty must have been imposed on the authority
and the performance of that duty should be imperative, not discretionary or optional.
There must be in the applicant a right to compel the performance of some duty cast
on the opponent.

Thus, if at its own discretion, Government makes a rule to grant dearness allowance
to its employees, there is no legal duty and the writ of mandamus cannot be issued
against the Government for performance of that duty. Such a duty must be statutory,
i.e. one imposed either by the Constitution, or by other statute, or by some rule of
common law, but should not be contractual.

In certain circumstances, however, even if discretionary power is conferred on the

authority and the statutory provisions are made for such exercise of the said power,
the writ of mandamus can be issued for the enforcement of that duty. Such a duty
must be of a public nature. If the public authority invested with discretionary power
abuses the power, or exceeds it, or acts mala fide, or there is non-application of mind
by it, or irrelevant considerations have been taken into account, the writ of mandamus
can be issued.

Demand and Refusal

The petition for a writ of mandamus must be preceded by a demand of justice and
its refusal. As a general rule the order will not be granted unless the party
complained of has known what it was he was required to do, so that he had the
means of considering whether or not he should comply, and it must be shown by
evidence that there was a distinct demand of that which the party seeking the
mandamus desires to enforce, and that that demand was met by a refusal. The denial
may be express or implied. It need not be in a particular form. Refusal by conduct of
the party is enough. Again, no demand is required if the court is satisfied that it is
an empty formality or an idle ceremony.

Good faith

An application for mandamus must have been made in good faith and not for any
ulterior motive or oblique purpose. A petition for mandamus albeit made in good
faith, will not be granted if designed to harass the respondent or with a view to
wreak personal grievances, or is really on behalf of some third party.
89

Alternative remedy Mandamus may be refused if alternative remedy is available to the

applicant.

Who may apply?

A person whose right has been infringed may apply for the writ of mandamus. Such
right must be subsisting on the date of filing the petition. Thus, in case of an
incorporated company, the petition must be filed by the company itself. In case any
individual makes an application for the enforcement of any right of an institution, he
must disclose facts to relate what entitled him to make an application on behalf of
the said institution. This approach, however, is criticized on the ground that it
overlooks the nature of writ of mandamus. Mandamus is a remedy in public law. By
restricting its scope to cases of personal legal right, in substance and in reality, it has
been made a private law remedy.

Against whom mandamus lies

A writ of mandamus is available against Parliament and State legislatures, against

courts and tribunals, against the Government and its officers, against local authorities
like municipalities, panchayats, against State-owned or State-controlled corporations,
against Universities and other educational institutions, against election authorities and
against other authorities falling within the definition of ‘State’ under Article 12 of the
Constitution.

When mandamus will not lie

A writ of mandamus will not be granted in the following circumstances:

1. When the duty is merely discretionary in nature the writ of mandamus will not
lie. In State of M. P. v. Mandawara, the M. P. Government made a rule making it
discretionary to grant dearness allowance to its employees at a particular rate. The
Supreme Court held that the writ of mandamus could not be issued to compel the
Government to exercise its power.

2. A writ of mandamus does not lie against a private individual or any private
organization because they are not entrusted with a public duty.

3. A writ of mandamus cannot be granted to enforce an obligation arising out of

contract.

Conclusion : The position of mandamus in India is indeed very encouraging. It is the

most popular writ, extensively and successfully used by aggrieved persons. Since the
object of Public Law is to make functioning of administrative bodies in an efficient
manner yielding the best results to the State, society and the individuals without
undue delay or costs, it is the duty of courts to hold this process through the
instrumentality of writs, more particularly by a writ of mandamus. Mandamus is thus
supplementary means of substantial justice in all cases where no other specific legal
remedy for enforcement of legal right is available to the applicant and the court is
satisfied that justice and good governance require grant or relief in favour of the
person who has approached a writ court to ventilate his grievances.
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3) WRIT OF PROHIBITION:

Writ of Prohibition : Prohibition is an extraordinary prerogative writ of a preventive

nature. It seeks to prevent courts, tribunals, quasi-judicial authorities and officers or
persons exercising judicial or quasi-judicial powers from usurping jurisdiction or
exercising jurisdiction not vested in them.

Nature and Scope

A writ of prohibition is a judicial writ. It can be issued against a judicial or quasi-

judicial authority, when such authority exceeds its jurisdiction or tries to exercise
jurisdiction not vested in it. When a subordinate court or an inferior tribunal hears a
matter over which ithas no jurisdiction, a High Court or the Supreme Court can
prevent it from exercising jurisdiction and keep it within its jurisdictional boundaries.

In East India Commercial Co. Ltd. v. Collector of Customs, the Supreme Court
observed: “A writ of prohibition is an order directed to an inferior Tribunal forbidding
it from continuing with a proceeding therein on the ground that the proceeding is
without or in excess of jurisdiction or contrary to the law of the land, statutory or
otherwise.”

The principle underlying the writ of prohibition is that ‘prevention is better than
cure.’

Object

The paramount object of writ of prohibition is to prevent encroachment of

jurisdiction. Its function is to restrain courts, tribunals and quasi-judicial authorities
exercising judicial or quasi-judicial powers from exceeding their authority and
exercising powers not vested in them and by confining them within the limits of law.
Prohibition is thus not a proceeding between private litigants. In effect, it is a proceeding
between two courts - a superior court and an inferior court. It is n means by which
a superior court exercises its power of superintendence over an inferior court by
keeping the latter within the limits of jurisdiction conferred on it by law.

Grounds

Essentially, both the writs of Certiorari and Prohibition can be issued when an
inferior court or tribunal acts without or in excess of its jurisdiction, or acts in
violation of principles of natural justice, or acts under a law which is ultra vires or
acts in contravention of fundamental rights or there is an error apparent on the face
of the record in exercising jurisdiction by the court or tribunal.

Who may apply?

Where the defect of jurisdiction is apparent on the face of the proceedings, an

application for Prohibition can be brought not only by the aggrieved party but also by
a stranger. The principle underlying this rule is that usurpation of jurisdiction is
contempt of the Crown and an encroachment upon royal prerogative. Consequently it
is immaterial by whom the Court is informed about the usurpation.
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Against Whom Prohibition Lies

A writ of Prohibition is a judicial writ. It may be issued against courts, tribunals and
other quasi-judicial authorities such as Tax authorities, Custom Authorities, Settlement
Officers, Statutory Arbitrators, etc.

Against Whom Prohibition Does Not Lie

Prohibition, however, does not lie against administrative authorities from discharging
administration, executive or ministerial functions. Likewise, it would not lie against
legislature restraining it from enacting or enforcing a law.

4. WRIT OF CERTIORARI

A writ of certiorari has been described as ‘one of the most valuable and efficient
remedies’ derived from the Common Law. Certiorari is essentially a royal command
for information, the King wishing to be certified of some matter, orders that necessary
information be provided to him. It is a method of bringing the record of a
subordinate court or an inferior tribunal before a superior court to correct errors of
jurisdiction or of law apparent on record and to decide whether the authorities had
exceeded their jurisdiction or errors of law committed by them had resulted in
miscarriage of justice.

A writ of certiorari is issued by a Superior Court (Supreme Court and High Courts)
to an inferior court or body exercising judicial or quasi-judicial functions to remove a
suit from such inferior court or body and adjudicate upon the validity of the
proceedings or body exercising judicial or quasi-judicial functions. It may be used
before the trial to prevent an excess or abuse of jurisdiction and remove the case for
trial to higher court. It is invoked also after trial to quash an order which has been
made without jurisdiction or in violation of the rules of natural justice. Speaking on
the scope of the writ, the Supreme Court in the Province of Bombay v. Khushaldas,
held that, whenever any body of persons having legal authority to determine questions
affecting the rights of subject and having the duty to act judicially acts in excess of
their legal authority, a writ of certiorari lies. It does not lie to remove merely
ministerial act or to remove or cancel executive administrative acts.

Nature and Scope

‘Certiorari’ means ‘to certify’. It is so named as in its original Latin form it required
“the judges of any inferior court of record to certify the record of any matter in that
court with all things touching the same and to send it to the King's Court to be
examined.” It is an order issued by the High Court to an inferior court or any
authority exercising judicial or quasi-judicial functions to investigate and decide the
legality and validity of the orders passed by it.

Object

The object of the writ of certiorari is to keep inferior courts and quasi-judicial
authorities within the limits of their jurisdiction; and if they act in excess of their
jurisdiction their decisions can be quashed by superior courts by issuing this writ.
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Certiorari in this sense is a ‘great corrective writ’ by which superior courts (Supreme
Court and High Courts) exercise supervisory jurisdiction over inferior courts, tribunals
boards, authorities and officers exercising judicial and quasi-judicial powers and by
which their records and proceedings are brought under review with the sole object
that all abuses of powers may be corrected and they may be prevented from
transcending powers conferred upon them.

Conditions

In R. v. Electricity Commrs., Lord Atkin observed: “Whenever any body of persons

having legal authority to determine questions affecting the rights of subjects and
having the duty to act judicially, act in excess of their legal authority they are subject
to the controlling jurisdiction of the King's Bench Division exercised in these writs.”
From these observations, it becomes clear that a writ of Certiorari can be issued if
the following conditions are fulfilled: 1. Judicial or quasi-judicial body must have legal
authority;

2. Such authority must have power to determine questions affecting rights of subjects;

3. It must have duty to act judicially; and

4. It must have acted in excess of such authority.

Grounds

a)Error of Jurisdiction: When an inferior court or tribunal acts without jurisdiction,

or in excess of its jurisdiction or fails to exercise jurisdiction vested in it by law, a
writ of certiorari may be issued against it.

In R. v. Minister of Transport, even though the Minister was not empowered to

revoke a licence, he passed an order of revocation of licence. The order was quashed
on the ground that it was without jurisdiction and, therefore, ultra vires.

Under the Industrial Disputes Act, 1947, an appropriate Government is empowered to

refer an ‘industrial dispute’ to a tribunal constituted under the Act. But if the
Government refers a dispute to the Industrial Tribunal for adjudication which is not an
‘industrial dispute’ within the meaning of the Act, the tribunal has no jurisdiction to
entertain and decide such dispute. Similarly, in absence of any provision in the
relevant statute, after a man is dead, his property cannot be declared as an evacuee
property. The decision of the authority would be without jurisdiction.

b) Jurisdictional Fact:Lack of jurisdiction may also arise from absence of some

preliminary facts, which must exist before a tribunal exercises its jurisdiction. They
are known as ‘jurisdictional’ or ‘collateral’ facts. The existence of these facts is a sine
qua non or a condition precedent to the assumption of jurisdiction by an inferior court
or tribunal. To put it simply, the fact the existence of which is necessary to the
initiation of proceedings and without which the act of the court is a nullity and can
be said to be a ‘jurisdictional fact.’If the jurisdictional fact does not exist, the court
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or the tribunal cannot act. If an inferior court or a tribunal wrongly assumes the
existence of such a fact, a writ of certiorari can be issued. The underlying principle is
that by erroneously presuming jurisdictional fact, an inferior court or a tribunal cannot
confer upon itself jurisdiction which is otherwise not vested in it under the law.

But if the fact is not a ‘jurisdictional fact’, but an ‘adjudicatory fact’; i.e. the ‘fact in
issue’, it can be determined by a court or tribunal and no Certiorari lies against the
finding arrived at by the court on merits. Thus, whether the petitioner is an ‘adult’
in adoption proceedings is not a ‘jurisdictional fact’ but a ‘fact in issue’ and hence,
no certiorari lies against such finding. Similarly, whether the construction made by the
landlord was new or not can be said to be an adjudicatory fact not subject to be
challenged in certiorari.

c)Error apparent on the face of the record: The writ is also issued for correcting
an error of law apparent on the face of record. It cannot be issued to correct an error
of fact. What is considered an error of law apparent on the face of record to be
decided by the courts on the facts of each case. In Hari Vishnu v. Ahmad Ishaque
the Supreme Court held that no error could be said to be error on the face of the
record if it was not self-evident and if it required an examination or argument to
establish. An error of law which is apparent on the face of the record can be
corrected by a writ of certiorari but not an error of fact, howsoever grave it may
appear to be. The reason for the rule is that the court issuing a writ of certiorari
acts in a supervisory jurisdiction and not appellate jurisdiction. Accordingly, it cannot
substitute its own decision on the merits of the case or give direction to be complied
with by the inferior court or tribunal.

d)Violation of Natural Justice :A writ of certiorari also lies against a court or

tribunal when it acts in violation of the principles of natural justice. Two principles of
natural justice are generally accepted (l) the court or tribunal should be free from bias
and interest, and (2) audi alteram partem, i.e., the parties must be heard before the
decision is given.

The principle that the adjudicator should not have an interest or bias in the case that
(a) No man shall be a judge in his own case; (b) Justice should not be done but
manifestly and undoubtedly seem to be done.

The reason for this rule is to enable the tribunal to act independently and impartially
without any bias towards one side or the other. The second principle is that the
judicial body must give a reasonable opportunity to the parties concerned presenting
their case. Both the sides must have full and fair hearing and no man should be
condemned unheard is important rule of civilized justice. This principle infers many
things; that the parties affected must be given sufficient opportunity to meet the case
against them, that the parties must be apprised of the evidence or any information on
which the case against them is based and be given an opportunity to contradict these
materials, and that evidence must not be given behind the back of the other party but
in their presence. But if a party does not avail of himself that opportunity and fails
to place his case before the court or tribunal either personally or through lawyer,
there would be no denial of justice and he is himself to blame if he allows the
opportunity of being heard to slip away.
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Who may apply?

Normally, the party whose rights are affected may apply for a writ of certiorari. But
if the question affects the public at large, any person may apply. The distinction,
however, is that where the application is made by the aggrieved party, the court
should grant relief ex debitojustitiae, but if it is made by a party not directly affected
in the litigation, grant of writ is entirely in the discretion of the court.

Against whom Certiorari Lies

A writ of certiorari is a judicial writ. It lies against subordinate courts, inferior

tribunals, quasi-judicial bodies and adjudicating authorities. Even if the court or
tribunal ceases to exist or becomes functus officio, certiorari can still be issued against
it.

Against whom certiorari does not lie

A writ of certiorari cannot be issued against an individual, company, private authority,

an association or even a court or tribunal having no judicial or quasi-judicial powers
to decide rights of parties. It also cannot be issued for a declaration that an Act or
Ordinance is ultra vires the Constitution.

Difference between Prohibition and Certiorari

Prohibition has much in common with certiorari. Both the writs are issued with the
object of restraining the inferior courts from exceeding their jurisdiction. The
difference between the two writs was explained by the Supreme Court in the
following words: “When an inferior court takes up for hearing a matter over which it
has no jurisdiction, the person against whom the proceedings are taken can move the
Supreme Court for a writ of prohibition and on that an order will issue forbidding the
inferior court from continuing the proceedings. On the other hand, if the court hears
the cause or matter and gives a decision, the party aggrieved would have to move the
Supreme Court for a writ of certiorari on that an order will be made quashing the
decision on the ground of jurisdiction.”

There is, therefore, no difference in principle between Certiorari and Prohibition

except in respect of timing of the remedy; one before while the other after the
decision. Prohibition and Certiorari are two complementary writs and frequently go
hand in hand. A writ of Certiorari is corrective or remedial whereas a writ of
Prohibition is preventive. Certiorari applies to a decision which is fait accompli,
Prohibition seeks to prevent the fait from becoming accompli.

Sometimes both the writs might be necessitated. Thus, in a proceeding before an

inferior court, a decision might have been arrived at which did not completely dispose
of the matter, in which case it might be necessary to apply both Certiorari and
Prohibition. Certiorari for quashing what has been decided and Prohibition for
restraining further continuance of the proceeding.

Conclusion : A writ of prohibition lies where there is absence of jurisdiction or

excess of jurisdiction. Hence, if defect of jurisdiction is apparent, it is not only the
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power but the duty of superior court to issue this writ to prevent a subordinate court
or inferior tribunal from usurping jurisdiction not vested in it or from exceeding it.

5) Writ of quo-warranto

Introduction: Quo warranto is an ancient Common Law remedy. It is a prerogative

writ issued against an intruder or usurper of a public office. It was used by the
Crown against a person claiming an office, franchise or liberty to inquire by what
authority he was in the office, franchise or liberty. In case his claim was not well
founded or there was misuse or abuse of office, he was to be removed.

Nature and Scope

Quo warranto' literally means 'what is your authority'. It is a judicial remedy against
an occupier or usurper of an independent substantive public office, franchise or liberty.
By issuing this writ the person concerned is called upon to show to the court by
what authority he holds the office, franchise or liberty. If the holder has no authority
to hold the office he can be ousted from its enjoyment. This writ also protects the
holder of a public office from being deprived of that to which he may have a right.

Object

In University of Mysore v. Govinda Rao, the Supreme Court observed: "The

procedure of quo warranto confers jurisdiction and authority on the judiciary to control
executive action in the matter of making appointments to public offices against the
relevant statutory provisions; it also protects a citizen being deprived of public office
to which he may have a right."

Conditions

Before the writ of quo warranto can be issued the following conditions must be
satisfied.

1. Such office must be of a public nature;

2. It must be of a substantive character;

3. It must be statutory; and

4. the holder must be in actual occupation of the office.

1) Public Office:The office must be of a public nature. By public office is meant

an office in which the public has an interest. Before the writ can be issued the
court must be satisfied that the office in question is a public office and the holder
thereof has no legal authority to hold the said office. This writ will not lie in
respect of office of a private nature, e.g, a managing committee of a private school.
On the other hand, the offices of the Prime Minister, Chief Minister, Minister, Chief
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Justice Advocate General, Speaker of a House of Legislature, Mayor, Councellor,

etc. are public offices.

2) Substantive Character The office must be of a substantive character: The words

‘substantive character’ means the office in question must be an independent office.
The holder of such office must be an independent official and not merely a deputy or
servant of others. But the mere fact that the office is held at pleasure will not make
the office one which is not substantive. Thus, the membership of the Privy Council,
or the office of an Advocate General of a State, or the Governor, though held during
the pleasure of the Crown can be said to be of a substantive character.

3)Statutory Character The office must be statutory or constitutional:. Thus, a writ of

quo warranto may be issued in respect of offices of the Prime Minister, Advocate
General, Judge of a High Court, Public Prosecutor, Speaker of a House of the State
legislature, members of a Municipal body, University officials, etc.

4)Actual Occupation The holder must be in actual occupation of the office and he
must have asserter his right to claim it. Mere claim to an office is not enough to
justify issuance of quo warranto. Such claim must be coupled with occupation and
usurpation.

Who may apply?

The object of the writ of quo warranto is to prevent a person who has wrongfully
usurped a public office from continuing in that office. Therefore, an application for a
writ of quo warranto challenging the legality and validity of an appointment to a
public office is maintainable at the instance of any private person even though he is
not personally aggrieved or interested in the matter.

Against whom quo warranto lies

A writ of quo warranto lies against a person claiming or usurping public office,
franchise or liberty. The word 'office' is of indefinite content. It may, however, be
described as ‘a position or place to which certain duties are attached, especially one
of a more or less public character.’

When quo warranto may be refused

Quo warranto is a discretionary remedy and the petitioner cannot claim this writ as
of right. The court may refuse to grant this writ taking into account the facts and
circumstances of the case. This may include instances where the issue of a writ
would be vexacious, or where there was acquiescence on the part of the petitioner, or
where it would be futile as the holder of an office has ceased to hold the office in
question. It may also be refused if there is mere irregularity in election.

Conclusion : Quo warranto is thus a judicial proceeding which seeks to protect public
interest by preventing invasion or abuse of public office by an intruder or usurper of
such office. As soon as the attention of the Court is drawn that a person not entitled
to hold an office is occupying such office contrary to law, it is not only the power
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but the duty of the court to declare that he has no authority to hold the office and to
restrain him from acting as such.

Briefly about concept of 5 writs

Habeas Corpus-

1.It literally means to have the body and is issued primarily to secure the release of a
person who has been unlawfully detained or without any jurisdiction

ii) However, issuance of such a writ largely depends on the statute or other
circumstances under which detention has taken place. For example, habeas corpus
cannot be granted when a person has been detained by a competent court even when
such detention may appear to be wholly illegal.

3.The scope of this writ has been extended by the court to include inhuman and cruel
treatment to prisoners as well. (Sunil Batra v. Delhi Administration)

iv) The aggrieved person or anyone on his behalf might approach the court. When a
prima facie case has been established for the issuance of the writ, the court shall ask
the detaining authority by issuing a rule nisi, to show cause why the writ should not
be issued. If the court is then convinced that such cause shown is not sufficient, it
shall issue the writ.

v) The detaining authority has to meet the grounds on which detention has been
challenged by the detenu as well as prove that detention was under the procedure
established by law as provided in Art. 21

vi) In KanuSanyal v. District Magistrate(I), the court held that it is not necessary to
produce a person during writ proceedings as the objective of the writ is to secure
freedom for the detenu as soon as possible and not production before the court. This
rule may however be changed by the court in compelling circumstances.

Quo Warranto

1. It literally means ‘what is your authority’.

2.It is generally used by the courts asking the holder of a public office (not private
office) to show as to why he is entitled to such office. It acts as a judicial control
over administrative action with respect to making appointments as well as protects
individual rights from being violated by a person who has no authority to hold such
office.

iii) The writ is with respect to a public office of substantive character.

iv) This writ will not be issued if there is an alternate remedy available.

v) In PL Lakhanpal v. AN Ray, it was seen that AN Ray who was appointed the CJI
by superseding 3 other judges was challenged as the seniority principle was not
applied. The Delhi HC rejected such a petition stating that the writ jurisdiction of the
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court involves technicalities and is based on the discretion of the court whether or not
to accept such petition. Further, it was also stated that if an irregularity which was
challenged was cured during the pendency of proceedings, the writ need not be
issued. In this case after the appointment of Justice Ray as CJI, he automatically
became the senior most judge thereafter and thus there was no irregularity. Thirdly,
the case was challenged on the grounds of malafide on the part of the appointing
authority but the court stated that a writ of quo warranto can be issued against the
holder of the office and not the appointing authority.

vi) In another important judgment of GokarajuRangaraju v. Andhra Pradesh, it was

held that after quashing the appointment of a public officer, such acts of the officer
which were for the benefit of third persons or the public and not for personal benefit
shall remain valid as if they were passed by officers entitled to such office.

Mandamus

1.It is a command issued by the court directing an authority to do its public duty as
laid down by the law.

2.It may be issued to any authority performing any kind of function.

3.Mandamus is used to enforce a duty which is obligatory under the law and is not
merely optional or discretionary.

4.A mandamus may also be issued to compel an authority to carry out the decision of
a tribunal

v) A mandamus may also be issued in case of a non-statutory duty

vi) However, generally the courts do not grant such a writ in cases where there is a
general duty to be performed such as improving railway services, etc.

vii)The writ cannot be used incase of civil liability arising under torts or contracts.
viii) In Jivan Mal Kochar v. India, it was held that the petitioner could not claim
damages under Art. 32 for the humiliation, indignity and loss suffered by him due to
governmental action.

ix) In order to issue a writ of mandamus, it must first be shown by the petitioner that
he has a right to compel the authority to act in a particular manner

. x) The person asking for issuing the writ must first demand justice from the
concerned authority (and no other authority) and only on rejection of the same can he
approach the court.

Certiorari and Prohibition

i) These writs are mainly used to prevent excesses on the part of public authorities.

ii) Earlier, it could be used only against judicial or quasi-judicial bodies but now it
has been extended to all public authorities exercising any kind of public function
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. iii) Both these writs are issued for the same purpose and in similar circumstances.
The only difference is with respect to the stage at which they are used. A writ of
certiorari is used to quash an order which has already been passed as in when a
decision has already been rendered. While a writ of prohibition is used when
proceedings are going on so as to stall such proceedings

iv) The various grounds based on which such writs may be issued are when there
exists an error apparent on the face of the record, incase of any jurisdictional error,
an order made under an invalid law, contravention of the principles of natural justice,
an order made based on no evidence, etc.

However, a writ of certiorari cannot be used to disguise an appeal in order to discuss

the merits of a case already dismissed by a lower authority. Its main aim is to
exercise supervision.

Sources for these questions/answers of 5 units are:

1: The source of my notes is MP Jain and class notes. ( Regards

Ankita)

2: Administrative law notes by (PALLAVI BHOGLE)

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