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LL.B. Semester III


CORE COURSE 204 Administrative Law

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Source : Public domain print/ internet contents. URLs of some such resources are listed
herein. Credits/ copyrights duly acknowledged.
16-Jun-2017. Exam centric version-2.0 compiled by ketan.bhatt@iitbombay.org in
academic pursuit. Follow URLs for details. Dedicated to students of the subject. No claim
is made/ implied about truthfulness of this document.
There is likely to be one update before Nov-2017 university exams.
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are to such questions which were asked in Gujarat University examinations.
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Scribd https://www.scribd.com/bhatt.net.in (repository of ALL study notes for LLB)
Refer (not in any particular order) :
Bare acts are a good source, in any subject of law.
It may help referring to following study notes,
Sem-2 - 108 Constitutional Law Paper - I
Sem-2 - 109 Constitutional Law Paper - ll
Sem-4 - 208 Legal Methods & Legal Theories
Sem-4 - 210 Interpretation of Statutes & Pri of Legislation
http://persmin.gov.in/otraining/UNDPProject/undp_modules/Administrative%20Law
%20N%20DLM.pdf --- Training Package on Administrative Law By Dr Sunita
Zalpuri Koul (Associate Professor) J&K IMPA, Jammu
https://www.scribd.com/doc/251211773/Administrative-Law --- Administrative Law
By Pallavi Bhogle

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CONTENTS
Module - 1) Introduction and Basic Constitutional Principles
Module - 2) Delegated Legislation and Quasi-Judicial Functions
Module - 3) Judicial Review of Administrative Discretion and Remedies
Module - 4) Miscellaneous

OBJECTIVES OF THE COURSE :


The modern state governs in the traditional sense, that is maintains law and order,
adjudicates upon disputes and regulates economic and social life of individuals and
group in the state. At the same time it is also the provider of essential service. In the
event of need occasioned by unforeseen hazards of life in a complex society, it engages
itself in giving relief and helps the citizenry towards self-reliance. The assumption of
unprecedented responsibilities by the state has necessitated devolution on authority of
numerous state functionaries. The number of functionaries in carrying out these tasks
has ever been on the increase due to proliferation of human needs in an age of science
and technology. The aggregate of such functionaries is an essential component of
modern administration.
A formidable body of law has come into existence for the purpose of exercising control
over administration. For long administrative lawyers have primarily been concerned with
such matters as excess or abuse of power, mal administration and abuse of discretion.
However, in recent years there has been a shift in emphasis from finding what the
administration may not do to what it must do. The courts in Indian, no doubt, strike
down administrative acts which are ultra vires or in violation of procedural norms
however, not much has so far been achieved in compelling the administration to perform
statutory duties, though a beginning has been made in respect of matters relating to
fundamental human liberties, Most of the statutory duties imposed on administrative
agencies or authorities remain largely in the realm of discretion.
A course on administrative law must, therefore, lay emphasis on understanding the
structure and modus operandi of administration. It must take note of developmental
perspectives and attainment of social welfare objectives through bureaucratic process. It
should go into matter, which facilitate or hinder the attainment of these objectives.
Though in the matter of protection of rights of individual against administration the role
of courts can not be minimized, it is no less important to know the advantages of
informal methods of settlement. Many new methods of grievance redressal have been
devised which are not only efficacious but also inexpensive and less time consuming.
Remedies available for administrative deviance need a critical study and evaluation in
the context of realities.

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Module - 1) Introduction and Basic Constitutional Principles :


1.1) Administrative Law : Definition, Nature, Scope Reasons for its growth
1.2) Development of Administrative Law, its relation with Constitutional law
1.3) Basic Constitutional Principles:
1.3.1) Rule of Law
1.3.2) Doctrine of Separation of Powers
1.3.3) Principles of Natural Justice, relevant statutory provisions, Natural
Justice Principle as accepted in India, Judicial approach and important
cases
1.4) Classification of Administrative actions : Administrative functions, Judicial
Functions and Quasi-Judicial functions

Go To Contents

Module-1 QUESTIONS :
Explain in detail : the concept and development of Administrative Law. (Nov-2011)
Explain the nature scope and sources of administrative law. Describe its growth in
India. (Nov-2014)
Explain in detail the meaning and nature of Administrative Law and state the
reasons for its growth. (Dec-2016)
Define the administrative law and scope of administrative law. Discuss the
development of administrative law in India. (Dec-2015)
Administrative Law is a branch of Constitutional Law." Discuss. (Oct-2013)
Explain in detail the relationship of Administrative Law with Constitutional Law
with case laws. (Dec-2016)
Explain : administrative law is part of the constitutional law. (Nov-2011)
Discuss : Administrative Law is a part of constitutional law. (Nov-2012)
Explain in detail the Principle of Rule of Law and the approach of the supreme Court
in the year 1951 about the same and thereafter. (Oct-2013)
Explain in detail : principle of rule of law. (Nov-2011, Dec-2016)
Explain in detail : Prof Diceys principle of rule of law. (Nov-2012)
Discuss in detail the principle of Rule of law propounded by prof dicey along with its
implementation in India. (Nov-2014, Dec-2015)
Doctrine of Separation is never completely accepted and implemented in India. Discuss
this statement and explain the doctrine of Separation of Powers as given by Montesque.
(Oct-2013, Dec-2015)

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Explain in detail : the doctrine of separation of powers propounded by


Montesque and analyze its acceptance in India. (Nov-2012)
Explain in detail the doctrine of separation of powers. Weather this doctrine is fully
accepted in India. Explain with illustrations. (Nov-2014)
Explain in detail : principle of separation of power. (Nov-2011)
Discuss the doctrine of Separation of Powers in detail. (Dec-2016)
Explain the following in the light of principles of natural justice along with relevant
cases of the Supreme Court of India, (i) "No one should be condemned unheard", (ii)
No one shall be the judge in his own case. (Oct-2013)
Discuss : Natural Justice Principle as accepted in India, Judicial approach and
important cases.
Explain in detail : the principle of natural justice with necessary cases. (Nov-2012,
Dec-2015)
Explain in detail : principles of natural justice given in Administrative Law. (Nov-2011)
Discuss the principle of Audi alteram partem (hear the other side) with decided
cases. (Nov-2014)
Explain : Principle of Natural Justice. (Dec-2016)
Discuss : Classification of Administrative actions, Administrative functions, Judicial
Functions and Quasi-Judicial functions
Discuss in detail the concept of Administrative Action and Administrative
Functions. (Dec-2016)
Explain : Judicial functions and Quasi-judicial functions. (Dec-2016)
Discuss the administrative act. Differentiate between administrative act, judicial act
and quasi judicial act. (Dec-2015)
Discuss : Droit administratif

Go To Contents

Module-1 ANSWERS :
Explain in detail : the concept and development of Administrative Law. (Nov-2011)
Explain the nature scope and sources of administrative law. Describe its growth in
India. (Nov-2014)
Explain in detail the meaning and nature of Administrative Law and state the
reasons for its growth. (Dec-2016)
Define the administrative law and scope of administrative law. Discuss the
development of administrative law in India. (Dec-2015)
ANSWER :

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Intro & History :


It all boils down to the conflict between power and justice. Wherever there is
power, there exist probabilities of excesses in exercise of the power. One way is to
do nothing about this and let the big fish eat little fish. The other way is to try and
combat this.
Administrative law is the bye-product of the growing socio-economic functions of
the State and the increased powers of the government. In the developed society,
the relationship of the administrative authorities and the people have become very
complex. In order to regulate these complex, relations, some law is necessary,
which may bring about regularity, certainty and may check at the same time the
misuse of powers vested in the administration.
In the ancient society the functions of the state were very few the prominent
among them being protection from foreign invasion, levying of Taxes and
maintenance of internal peace & order.
It does not mean, however that there was no administrative law before 20th
century. In fact administration itself is concomitant of organized Administration.
In India, administrative law can be traced to the well-organized administration
under the Mauryas and Guptas, several centuries before the Christ, following
through the administrative, system of Mughals to the administration under the East
India Company, the precursor of the modern administrative system.
But in the modern society, the functions of the state are manifold, In fact, the
modern state is regarded as the custodian of social welfare and consequently, there
is not a single field of activity which is free from direct or indirect interference by
the state.
Along with duties, and powers the state has to shoulder new responsibilities. The
growth in the range of responsibilities of the state thus ushered in an
administrative age and an era of Administrative law.
The development of Administrative law is an inevitable necessity of the modern
times; a study of administrative law acquaints us with those rules according to
which the administration is to be carried on. Administrative Law has been
characterized as the most outstanding legal development of the 20th-century.
What is Administrative Law ? Let us consider some of the definitions as given by the
learned jurists.
Austin has defined administrative Law as the law, which determines the ends and
modes to which the sovereign power shall be exercised. In his view, the sovereign
power shall be exercised either directly by the monarch or directly by the
subordinate political superiors to whom portions of those are delegated or
committed in trust.
Holland regards Administrative Law one of six divisions of public law. In his

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famous book Introduction to American Administrative Law 1958.


Bernard Schawartz has defined Administrative Law as the law applicable to those
administrative agencies which possess of delegated legislation and adjudicatory
authority.
Jennings has defined Administrative Law as the law relating to the administration.
It determines the organization, powers and duties of administrative authorities.
K.C. Davis has defined administrative law in the following words : Administrative
Law is the law concerning the powers and procedures of administrative agencies
including specially the law governing judicial review of administrative action.
In the view of Friedman, Administrative Law includes the following :
The legislative powers of the administration both at common law and under a
vast mass of statutes.
The administrative powers of the administration.
Judicial and quasi-judicial powers of the administration, all of them statutory.
The legal liability of public authorities.
The powers of the ordinary courts to supervise the administrative authorities.
The Indian Institution of Law has defined Administrative Law in the following words
: Administrative Law deals with the structure, powers and functions of organs of
administration, the method and procedures followed by them in exercising their
powers and functions, the method by which they are controlled and the remedies
which are available to a person against them when his rights are infringed by their
operation.
Need for Administrative Law :
It has increasingly become important to control the administration, consistent with
the efficiency, in such a way that it does not interfere with impunity with the rights
of the individual. Between individual liberty and government, there is an age-old
conflict the need for constantly adjusting the relationship between the government
and the governed so that a proper balance may be evolved between private
interest and public interest.
It is the demand of prudence that when sweeping powers are conferred on
administrative organs, effective control- mechanism be also evolved so as ensure
that the officers do not use their powers in an undue manner or for an unwarranted
purpose.
It is the task of administrative law to ensure that the governmental functions are
exercised according to law, on proper legal principles and according to rules of
reason and justice fairness to the individual concerned is also a value to be
achieved along with efficient administration.
The goal of administrative law is to redress this inequality to ensure that, so far as

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possible, the individual and the state are placed on a plane of equality before the
bar of justice.
If exercised properly, the vast powers of the administration may lead to the welfare
state; but, if abused, they may lead to administrative despotism and a totalitarian
state. A careful and systematic study and development of administrative law
becomes a desideratum as administrative law is an instrument of control of the
exercise of administrative powers.
Nature and scope of administrative law :
Administrative Law is that branch of the law, which is concerned, with the
composition of powers, duties, rights and liabilities of the various organs of the
Government.
Administrative law identifies the excesses of power and endeavors to combat it.
The learned Author, Upendra Baxi, while commenting on the administrative law has
observed (in Introduction to "The Myth and reality of the Indian administrative
Law, by I.P. Massey 2001) as follows,
to understand the stuff of which administrative law is made one has to
understand relevant domains of substantive law to which courts apply the more
general principles of legality and fairness. In this way a thorough study of
administrative law is in effect, a study of the Indian legal system a whole. More
importantly, it is study of the pathology of power in a developing society.
The administrative law has growing importance and interest and the administrative
law is the most outstanding phenomena in the welfare state of today. Knowledge of
administrative law is as important for the officials responsible for carrying on
administration as for the students of law.
Administrative law is not codified like the Indian Penal code or the law of Contracts.
It is based on the constitution.
Administrative law is essentially Judge made law. It is a branch of public law as
compared to private law-relations inter-se.
Administrative law is an ever-expanding subject in developing society and is bound
to grow in size as well as quality in coming decades. We need an efficient
regulatory system, which ensures adequate protection of the peoples Rights.
The administrative agencies derive their authority from constitutional law and
statutory law. The laws made by such agencies in exercise of the powers conferred
on them also regulate their action. The principle features are: (a) transfer of power
by legislature to administrative authorities, (b) exercise of power by such agencies,
and (c) judicial review of administrative decisions.
Administrative law relates to individual rights as well as public needs and ensures
transparent, open and honest governance, which is more people-friendly.
Administrative law deals with the organization and powers of administrative and

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powers quasi-administrative agencies


Administrative law primarily concerns with official action and the procedure by
which the official action is reached.
Administrative law includes the control mechanism (judicial review) by which
administrative authorities are kept within bounds and made effective.
Development of Administrative Law : Internationally, development of Administrative
Law may be described in two distinct watershed (turning point) phases as follows :
Laissez faire (policy of leaving things to take their own course, without
interfering) :
The ruling gospel of the 19th century was "Laissez faire" ie policy of leaving
things to take their own course, without interfering. Laissez faire, manifested
itself in the theories of individualism, individual enterprise and self help. The
philosophy envisages minimum government control, maximum free enterprise
and contractual freedom.
The state was characterized as the law and order state and its role was
conceived to be negative as its internal extended primarily to defending the
country from external aggression, maintaining law and order within the country
dispensing justice to its subjects and collecting a few taxes to finance these
activities.
It was era of free enterprise. The management of social and economic life was
not regarded as government responsibility.
Social Welfare State :
Laissez faire doctrine resulted in human misery. It came to be realized that the
bargaining position of every person was not equal and uncontrolled contractual
freedom led to the exploitation of weaker sections by the stronger.
It came to be recognized that the state should take active interest in improving
the conditions of poor. This approach gave rise to social control and regulation of
individual enterprise. The state started to act in the interests of social justice; it
assumed a positive role.
In course of time, out of dogma of collectivism emerged the concept of Social
Welfare State which lays emphasis on the role of state as a vehicle of socio-
economic regeneration and welfare of the people.
Thus the growth of administrative law is to be attributed to a change of philosophy
as to the role and function of state. The shifting of gears from laissez faire state to
social welfare state has resulted in change of role of the state.
Development of Administrative Law in India :
Development of Administrative Law in India (in above mentioned 2 watershed
phases) may be illustrated very forcefully by reference to the position in India,

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Before 1947, India was a police state. The ruling foreign power was primarily
interested in strengthening its own domination; the administrative machinery
was used mainly with the object in view and the civil service came to be
designated as the steel frame. The state did not concern itself much with the
welfare of the people.
But all this changed with the advent of independence with the philosophy in the
Indian constitution the preamble to the constitution enunciates the great
objectives and the socio-economic goals for the achievement of which the Indian
constitution has been conceived and drafted in the mid-20th century an era
when the concept of social welfare state was predominant. Constitution of India
is thus pervaded with the modern outlook regarding the objectives and functions
of the state.
Constitution of India embodies a distinct philosophy which regards the state as on
organ to secure good and welfare of the people this concept of state is further
strengthened by the Directive Principles of state policy which set out the economic,
social and political goals of Indian constitutional system. These directives confer
certain non-justiceable rights on the people, and place the government under an
obligation to achieve and maximize social welfare and basic social values of life
education, employment, health etc.
Administrative law essentially deals with location of power and the limitations
thereupon. In case of India, both of these aspects are governed by the
constitution, which act as sources of limitations upon the power of the state.
Indias Constitution is of the federal type. It established a dual polity, a two tier
governmental system with the Central Government at one level and the state
Governments at the other. The Constitution marks off the sphere of action of each
level of government by devising an elaborate scheme of distribution of legislative,
administrative, and financial powers between the Centre and the States. A
government is entitled to act within its assigned field and cannot go out of it, or
encroach on the field assigned to the other government.
In India, in the Watershed (turning point) one can include the whole control
mechanism provided in the constitution for the control of the administrative
authorities that is article 32, 226,136,300 and 311.
Thus the Constitution of India is having significant effect on laws including
administrative law. It is under Constitution of India that other laws are made and
executed, all governmental authorities and the validity of their functioning
adjudged.
No legislature can make a law and no governmental agency can act, contrary to
the constitution no act, executive, legislative, judicial or quasi-judicial, of any
administrative agency can stand if it is contrary to the constitution.
The constitution thus conditions the whole government process in the country. And

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the judiciary is obligated to see any governmental organ does not violate the
provisions of the constitution. This function of the judiciary entitles it to be called
as guardian of the constitution.
Sources of Administrative Law in India : There are four principal sources of
administrative law in India :-
Constitution of India
Acts and Statutes
Ordinances, Administrative directions, notifications and Circulars
Judicial decisions
Constitution of India :
The constitution of India deals with formulation of the executive, the powers of
the executive during peace and emergency times.
Administrative law is concerned solely with the Administrative acts or either the
administrator or of quasi judicial bodies. Now the methods by which such acts
are interfered with are by the use of the prerogative or common law writs,
especially by the writs of certiorari, mandamus and prohibitions. These writs are
issued only by the Supreme Court and High Courts in India under Articles 32 and
226 of the constitution of India.
The constitution of India also provides under Article 299 and 300, the
contractual and tortious liability of the government servants
Acts and Statutes :
Statute law is also an important source of Administrative power. The term covers
both Act of parliament and state legislatures comprising public general Acts and
private or local Acts.
Acts of parliament fall into two categories which may be conventionally termed
constituent Acts and enabling Act, but some Acts deal with both constitution and
power. In short, we can say statues are one of the important sources of
Administrative law.
Ordinances, Administrative directions, notifications and Circulars :
Rules, directives and regulations issued by Councils of Ministers and each
administrative agencies are also the focus of administrative law.
Extra care needs to be taken to ensure constitutionality and legality or validity of
such Ordinances, Administrative directions, notifications and Circulars and
ensure that it hasnt encroached the fundamental rights of citizens.
For that purpose these Ordinances, Administrative directions, notifications and
Circulars, etc are subjected to comply with some minimum procedural
requirements like consultation (public participation) and publication (openness in
government administration).

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Arbitrary exercise of power leads to arbitrary administrative action, which in


turn, leads to violation of citizens rights and liberty. Hence, the substance and
procedure of delegated legislation is an important source of administrative law.
Judicial decisions :
Much, but not most, of the doctrine that envelops and controls administrative
power is found in judicial analysis of other sources. Furthermore, the opinions
themselves must be carefully pursued to avoid generalizations about controls on
agency behavior that may not be appropriate, as the outcome of many cases
may turn on particular statutory language that may not necessarily reflect the
nature of disputes in other agencies.
The American experience as to judicial opinion influencing administrative law is
characterized by lack of generalization and fluctuating impacts. These may be
due to two reasons. First, cases coming before the courts through judicial review
are insignificant compared to the magnitude of government bureaucracy and the
administrative process. Second, even as between two apparently similar cases,
there is a possibility for points of departure.
Given the fact that the rule of precedent is applicable, judicial opinion, is another
important sources of administrative law in India.
Conclusion :
Today in India, the Administrative process has grown so much that it will not be
out of place to say that today we are not governed but administered.
Broadly speaking, Constitutional Law deals with fundamentals while Administrative
Law with details. The learned author, Sh. I.P. Messey, has rightly pointed out,
whatever may be the arguments and counter arguments, the fact remains that the
administrative law is recognized as separate, independent branch of legal
discipline. Though at times the disciplines of constitutional law and administrative
law may over lap. Further clarifying the point he said the correct position seems to
be that if one draws two circles of administrative law and constitutional law at a
certain place they may over lap and this area may termed as watershed in
administrative law.

Go To Module-1 QUESTIONS
Go To Contents

Administrative Law is a branch of Constitutional Law." Discuss. (Oct-2013)


Explain in detail the relationship of Administrative Law with Constitutional Law
with case laws. (Dec-2016)
Explain : administrative law is part of the constitutional law. (Nov-2011)

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Discuss : Administrative Law is a part of constitutional law. (Nov-2012)


ANSWER :
Refer :
http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=1&do_pdf=1&id=6769
http://www.lawteacher.net/free-law-essays/administrative-law/relationship-
between-constitutional-law-and-administrative-law-administrative-law-essay.php
<Take intro and history from elsewhere in this doc>
Indias Constitution is a very lengthy, elaborate and detailed document. It consists
of 395 Articles arranged under 22 parts and 9 schedules. It is probably the longest
of the organic law now extant in the world.
The framers of the Indian Constitution felt that unless detailed provisions regarding
(then) contemporary socio-economic realities were contained in the Constitution,
an infant democracy might find itself in difficulties, and the smooth and efficient
working of the Constitution and the democratic process in the country might be
jeopardized.
Administrative principles in Indian constitution : Following incorporation of vital
administrative principles in Indian constitution are noteworthy,
The form of administration has a close relation with the form of the Constitution
and the former must be appropriate to the latter.
Unless, explicit weaving of administrative principles is done in the Constitution, it is
quite possible to pervert the constitutional mechanism, without changing its form,
by merely changing the form of the administration and making it inconsistent with,
and opposed to, the spirit of the constitution.
Since India was emerging as an independent country after a long spell of foreign
rule, the country lacked democratic values, the constitution-makers therefore
thought it prudent not to take unnecessary risks, and to incorporate in the
constitution itself the from of administration as well, instead of leaving it to the
legislature, so that the whole mechanism may become viable.
Firstly, the Constitution deals with the organization and structure not only of the
central Government but also of the states.
Secondly, in a federal constitution, Center-State relationship is a matter of crucial
importance. While other federal constitutions have only skeletal provisions on this
matter the Indian Constitution has detailed norms.
Thirdly, the Constitution has reduced to writing many unwritten conventions of the
British Constitution as for example, the principle of collective responsibility of the
Ministers, parliamentary procedure etc.
Fourthly, there exist various communities and groups in India. To remove mutual

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distrust among them, it was felt necessary to include in the Constitution detailed
provisions on Fundamental Rights, safeguards to minorities, Scheduled tribes
scheduled castes and backward classes.
Fifthly, to promote the social welfare concept on which the state of India is to be
based. The constitution includes Directive Principles of State Policy.
Lastly, the Constitution contains not only the fundamental principles of governance
but also many administrative details, such as the provisions regarding citizenship,
official languages, government services, electoral machinery etc. In other
constitutions, these are usually left to be regulated by the ordinary law of the land.
Distinction between Constitutional Law and Administrative Law : The first specialist
administrative court was the Conseil d'tat set up in 1799, as Napoleon assumed
power in France. Constitutional and administrative law both govern the affairs of the
state. Administrative law, an area of law that gained early sophistication in France,
was until well into this century largely unrecognized in the United Kingdom as well as
the United States. To the early English writers on administrative law, there was
virtually no difference between administrative law and constitutional law. This is
evident from the words of Keith: It is logically impossible to distinguish
administrative from constitutional law and all attempts to do so are artificial." Some
jurists like Felix Frankfurter even went as far as to call it illegitimate and exotic". The
root of all confusion in the United Kingdom is its lack of a written constitution.
Views of jurists/ scholars on the distinction :
According to Holland, constitutional law describes the various organs of the
government at rest, while administrative law describes them in motion. [4]
Holland contends that the structure of the executive and the legislature comes
within the purview of constitutional law whereas their functioning is governed by
administrative law.
Jennings puts forward another view, which says that administrative law deals
with the organization, functions, powers and duties of administrative authorities
while constitutional law deals with the general principles relating to the
organization and powers of the various organs of the State and their mutual
relationships and relationship of these organs with the individual. Simply put,
constitutional law lays down the fundamentals of the workings of government
organs while administrative law deals with the details.
John Locke, holds that the individual can do anything but that which is
forbidden by law, and the state may do nothing but that which is authorized by
law". Administrative law is the chief method for people to hold state bodies to
account. People can apply for judicial review of actions or decisions by local
councils, public services or government ministries, to ensure that they comply
with the law.
Constitutional Law viewed through Administrative Eyes :

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Since the English Constitution is unwritten, the impact of constitutional law upon
administrative law in England is insignificant and blurred. As Dicey observes, the
rules which in other countries form part of a constitutional code are the result of
the ordinary law of the land in England. As a result, whatever control the
administrative authorities can be subjected to, if any, must be deduced from the
ordinary law, as contained in statutes and judicial decisions.
But, in countries having written constitutions, there is an additional source of
control over administrative action. In these countries there are two sources or
modes of exercising judicial control over the administrative agencies
constitutional and non-constitutional.
The written constitution imposes limitations upon all organs of the body politic.
Legislative acts : The legislative acts of the administration, i.e. statutory
instruments (or subordinate legislation) are expressly brought within the fold of
Article 13 of the Constitution, by defining law" as including order, bye-law, rule,
regulation, notification" or anything having the force of law". In India, a delegated
legislation can be challenged as invalid not only on the ground of being ultra vires
the statute which confers power to make it, but also on the additional ground that
it contravenes any of the fundamental rights guaranteed by Part III of the
Constitution.
Pure administrative acts : A non-legislative and a purely administrative action
having no statutory basis will be void if it breaches any of those fundamental rights
which set up limitations against any State action. Thus a non-statutory
administrative act may be void if it violates Article 14, guaranteeing equal
protection; Article 29 or Article 30guaranteeing minority rights; Article 19
guaranteeing freedom of speech, association, etc. ; and Article 16guaranteeing
equality of opportunity in employment. Thus the court would strike down any
administrative instruction or policy, notwithstanding its temporary nature, if it
operates as discriminatory, so as to violate any fundamental right of the person or
persons discriminated against. The most significant examples of such a case would
be actions affecting Article 19, 21 or 300-A.
An administrative act, whether statutory or non-statutory, will be void if it
contravenes any of the mandatory and justiciable provisions of the Constitution,
falling even outside the realm of fundamental rights like Articles 265, 301, 311
and 314.
Constitutional law thus advances itself into the judicial review chapter in
administrative law in a country like the USA or India. The courts in these countries
have to secure that the administration is carried on not only subject to the rule of
law but also subject to the provisions of their respective Constitutions. It can be
observed that an attack upon the constitutionality of a statute relates to
constitutional law and the constitutionality of an administrative action concerns

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administrative law, but the provisions of the same Constitution apply in both the
spheres.
Administrative growth in constitutional matrix :
Administrative law is a by-product of intensive form of Government. During the last
century, the role of Government has changed in almost every State of the world;
from a laissez faire state to a welfare and service state. As a result, it is expected
of the modern state not only to protect its citizens from external aggression and
internal disturbance, but also to take care of its citizens, right from birth to their
death. Therefore, the development of administrative process and the administrative
law has become the cornerstone of modern political philosophy.
Today there is a demand by the people that the Government must redress their
problems in addition to merely defining their rights. The rights are elaborately
defined in the Constitution but the policies to protect these rights are formulated by
the Government (the executive) and implemented by the administrative agencies
of the State. There thus arises a direct nexus between the constitutional law and
administrative law where the former acts as a source from which the rights of the
individuals flow and the latter implements its policies accordingly mandated to
preserve the sanctity of those rights.
It is widely agreed that the right of equality in the American Constitution will be a
sterile right if the black is the first to lose his job and the last to be reemployed. In
the same manner the equality clause in the Indian Constitution would be
meaningless if the Government does not come forward to actively help the weaker
sections of society to bring about equality in fact. This requires the growth of
administrative law and administrative process under the welfare philosophy
embodied in the constitutional law.
The Genus-Species Relationship :
Administrative law has been defined as the law relating to administration. It
determines the organization, powers and duties of administrative authorities. This
definition does not make any attempt to distinguish administrative law from
constitutional law. Besides, this definition is too wide because the law which
determines the powers of administrative authorities may also deal with the
substantive aspects of such powers. It may deal with matters such as public health,
housing, town and country planning, etc which are not included within the scope of
administrative law. Administrative law, however, tends to deal with these matters
as the Constitution has embodied the principle of a welfare State, and the State
can execute and implement these rules veraciously in the society only through
administrative laws.
Central Administrative Tribunal (CAT) : Establishment of the Central Administrative
Tribunal under the Administrative Tribunals Act, 1985 is one of the important steps
taken in the direction of development of administrative law in India.42 The

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Administrative Tribunals Act while stimulating the development of administrative law,


drew its legitimacy and substance from the constitutional law and was passed by
Parliament in pursuance of Article 323-A of the Constitution. Dr Rajeev Dhavan
famously called CAT to be , "a common law adaptation of the French system of droit
administratif".
Conclusion :
Although the relationship between constitutional law and administrative law is not
very emboldened to be seen with naked eyes but the fact remains that concomitant
points are neither so blurred that one has to look through the cervices of the texts
with a magnifier to locate the relationship
Constitutional law has a wide sphere of jurisdiction, with administrative law
occupying a substantive part. In other words, constitutional law can be termed as
the genus of which a substantive portion of administrative law is the species.
The separate existence of administrative law is at no point of time disputed;
however, if one draws two circles of the two branches of law, at a certain place
they will overlap depicting their stern relationship and this area may be termed as
watershed in administrative law. In India, in the watershed one can include,
the whole control mechanism provided in the Constitution for the control of
administrative authorities i.e. Articles 32, 136, 226, 227 300 and 311,
the directives to the State under Part IV,
the study of those administrative agencies which are provided for by the
Constitution itself under Articles 261, 263, 280, 315, 323-A and 324,
the study of constitutional limitations on delegation of powers to the administrative
authorities and also those provisions of the Constitution which place fetters on
administrative action i.e. fundamental rights.
Prof Sathe summed it all up by saying that, Administrative law is a part of
constitutional law and all concerns of administrative law are also concerns of
constitutional law."

Go To Module-1 QUESTIONS
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Explain in detail the Principle of Rule of Law and the approach of the supreme Court
in the year 1951 about the same and thereafter. (Oct-2013)
Explain in detail : principle of rule of law. (Nov-2011, Dec-2016)
Explain in detail : Prof Diceys principle of rule of law. (Nov-2012)
Discuss in detail the principle of Rule of law propounded by prof dicey along with its
implementation in India. (Nov-2014, Dec-2015)

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ANSWER :
Refer :

Intro :
The Expression Rule of Law plays an important role in the administrative law. It
provides protection to the people against the arbitrary action of the administrative
authorities.
The expression rule of law has been derived from the French phrase la Principle
de legality. i.e. a government based on the principles of law.
In simple words, the term rule of law, indicates the state of affairs in a country
where, the law rules.
Here, 'Law' may be taken to mean mainly a rule or principle which governs the
external actions of the human beings and which is recognized and applied by the
State in the administration of justice.
Rule of Law is a dynamic concept :
Simply speaking, it means supremacy of law or predominance of law and
essentially, it consists of values.
Origin of the phrase : The concept of the rule of Law is of old origin.
Edward Coke is said to be the originator of this concept, when he said that the King
must be under God and Law. And thus vindicated the supremacy of law over the
pretensions of the executives.
Prof. A.V. Dicey later developed on this concept in the course of his lectures at the
Oxford University. Dicey was an individualist; he wrote about the concept of the
Rule of law at the end of the golden Victorian era of laissez-faire in England. That
was the reason why Diceys concept of the Rule of law contemplated the absence of
wide powers in the hands of government officials. According to him, wherever there
is discretion there is room for arbitrariness. Further he attributed three meanings
to Rule of Law.
(1) The First meaning of the Rule of Law is that no man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land.
(The view of Dicey, quoted by Garner in his Book on Administrative Law.)
(2) The Second Meaning of the Rule of Law is that no man is above law. Every
man whatever be his rank or condition. is subject to the ordinary law of the
realm and amenable to the jurisdiction of the ordinary tribunals (Ibid).
(3) The Third meaning of the rule of law is that the general principle of the
constitution are the result of judicial decisions determining the rights of private
persons in particular cases brought before the court. (View of Dicey, quoted by

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Garner in his book on Administrative Law, p.11.)


Criticism of Dicey's Concept : The view of Dicey as to the meaning of the Rule of Law
has been subject of much criticism. The whole criticism may be summed up as
follows.
Inevitability of discretionary power to the administration : Dicey has opposed the
system of providing the discretionary power to the administration. In his opinion
providing the discretionary power means creating the room for arbitrariness, which
may create as serious threat to individual freedom. Now a days it has been clear
that providing the discretion to the administration is inevitable. The opinion of the
Dicey, thus, appears to be outdated as it restricts the Government action and fails
to take note of the changed conception of the Government of the State.
Dicey has also failed to distinguish discretionary powers from the arbitrary powers.
Arbitrary power may be taken as against the concept of Rule of Law. In modern
times in all the countries including England, America and India, the discretionary
powers are conferred on the Government. The present trend is that discretionary
power is given to the Government or administrative authorities, but the statute
also lays down some guidelines or principles according to which the discretionary
power is to be exercised. Modern "administrative law" is much concerned with the
control of the discretionary power of the administration. It is engaged in finding out
the new ways and means of the control of the administrative discretion.
According to Dicey the rule of law requires that every person should be subject to
the ordinary courts of the country. Dicey criticized the system of droit administratif
prevailing in France. In France there are two types of courts Administrative Court
and Ordinary Civil Courts. The disputes between the citizens and the Administration
are decided by the Administrative courts while the other cases, (i.e. the disputes
between the citizens) are decided by the Civil Court. According to Dicey the "Rule
of Law" requires equal subjection of all persons to the ordinary law of the country.
This proposition of Dicey does not appear to be correct even in England where
several persons enjoy some privileges and immunities. For example, Judges enjoy
immunities from suit in respect of their acts done in discharge of their official
function. Besides, Public Authorities Protection Act, 1893, has provided special
protection to the official. Foreign diplomats enjoy immunity before the Court.
Further, the rules of public interest privilege may afford officials some protection
against orders for discovery of documents in litigation. Thus, the meaning of rule
of law taken by Dicey cannot be taken to be completely satisfactory.
Discussion :
In spite of the above shortcomings in the definition of rule of law by Dicey, he must
be praised for drawing the attention of the scholars and authorities towards the
need of controlling the discretionary powers of the administration.
He developed a philosophy to control the Government and Officers and to keep

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them within their powers. The rule of law established by him requires that every
action of the administration must be backed by law or must have been done in
accordance with law.
The role of Dicey in the development and establishment of the concept of fair
justice cannot be denied.
The concept of rule of law, in modern age, does not oppose the practice of
conferring discretionary powers upon the government but on the other hand
emphasizing on spelling out the manner of their exercise. It also ensures that every
man is bound by the ordinary laws of the land whether he be private citizens or a
public officer; that private rights are safeguarded by the ordinary laws of the land.
Thus the rule of law signifies that nobody is deprived of his rights and liberties by
an administrative action; that the administrative authorities perform their functions
according to law and not arbitrarily; that the law of the land are not
unconstitutional and oppressive; that the supremacy of courts is upheld and judicial
control of administrative action is fully secured.
Basic Principles of the Rule of Law :
Law is Supreme, above everything and every one. No body is the above law.
All things should be done according to law and not according to whim
No person should be made to suffer except for a distinct breach of law.
Absence of arbitrary power being heart and soul of the "rule of law"
Equality before law and equal protection of law
Discretionary powers should be exercised within reasonable limits set by law.
Adequate safeguard against executive abuse of powers
Independent and impartial Judiciary
Fair and Justice procedure
Speedy Trial
Rule of Law and Indian Constitution :
In India the Constitution is supreme. The preamble of our Constitution clearly sets
out the principle of rule of law.
It is sometimes said that planning and welfare schemes essentially strike at rule of
law because they affect the individual freedoms and liberty in many ways.
But rule of law plays an effective role by emphasizing upon fair play and greater
accountability of the administration. It lays greater emphasis upon the principles of
natural justice and the rule of speaking order in administrative process in order to
eliminate administrative arbitrariness.
1951 development in SC :
<work on this>

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Rule of Law and Case law :


In an early case S.G. Jaisinghani V. Union of India and others, (AIR 1967 SC 1427)
the Supreme Court portrayed the essentials of rule of law in a very lucid manner. It
observed: The absence of arbitrary power is the first essential of the rule of law
upon which our whole constitutional system is based. In a system governed by rule
of law, discretion when conferred upon executive authorities must be continued
within clearly defined limits.
The rule of law from this points of view means that decisions should be made by
the application of known principles and rules and, in general such decision
should be predictable and the citizen should know where he is.
If a decision is taken without any principle or without any rule it is unpredictable
and such a decision is antithesis of a decision taken in accordance with the rule
of law.
The Supreme Court in a case, namely, Supreme Court Advocates on Record
Association V. Union of India, (AIR 1994 SC 268 at p.298) reiterated that absence
of arbitrariness is one of the essentials of rule of law. The Court observed. For the
rule of law to be realistic there has to be rooms for discretionary authority within
the operation of rule of law even though it has to be reduced to the minimum
extent necessary for proper, governance, and within the area of discretionary
authority, the existence of proper guidelines or norms of general application
excludes any arbitrary exercise of discretionary authority.
In such a situation, the exercise of discretionary authority in its application to
individuals, according to proper guidelines and norms, further reduces the area
of discretion, but to that extent discretionary authority has to be given to make
the system workable.
The recent expansion of rule of law in every field of administrative functioning has
assigned it is a place of special significance in the Indian administrative law. The
Supreme Court, in the process of interpretation of rule of law vis-- vis operation of
administrative power, in several cases, emphasized upon the need of fair and just
procedure, adequate safeguards against any executive encroachment on personal
liberty, free legal aid to the poor and speedy trail in criminal cases as necessary
adjuncts to rule of law.
Giving his dissenting opinion in the Death penalty case, Mr Justice Bhagwati
explains fully the significance of rule of law in the following words :
The rule of law permeates the entire fabric of the Constitution and indeed forms
one of its basic features. The rule of law excludes arbitrariness, its postulate is
intelligence without passion and reason free from desire. Wherever we find
arbitrariness or unreasonableness there is denial of the rule of law.
It is noteworthy that, the 'Law' in the context of rule of law does not mean any law
enacted by legislative authority, howsoever arbitrary, despotic it may be, otherwise

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even in dictatorship it would be possible to say that there is rule of law because
every law made by the dictator, however arbitrary and unreasonable, has to be
obeyed and every action has to be taken in conformity with such law. In such a
case too even where the political set-up is dictatorial it is the law that governs the
relationship between men.
Contemporary Scenario :
The modern concept of the Rule of Law is fairly wide and, therefore, sets up an
idea for government to achieve. This concept was developed by the International
Commission of Jurists, known as Delhi Declaration, 1959, which was later on
confirmed at Lagos in 1961.
According to this formulation, the Rule of Law implies that the functions of the
government in a free society should be so exercised as to create conditions in
which the dignity of man as an individual is upheld.
During the last few years the Supreme Court in India has developed some fine
principles of Third World jurisprudence. Developing the same new constitutional-
ism further, the Apex Court in Veena Seth v. State (AIR 1983 SC 339) of Bihar
extended the reach of the Rule of Law to the poor and the downtrodden, the
ignorant and the illiterate, who constitute the bulk of humanity in India, when it
ruled that the Rule of Law does not exist merely for those who have the means to
fight for their rights and very often do so for the perpetuation of the status quo,
which protects and preserves their dominance and permits them to exploit a large
section of the community. The opportunity for this ruling was provided by a letter
written by the Free Legal Aid Committee, Hazaribagh, Bihar drawing its attention to
unjustified and illegal detention of certain prisoners in jail for almost two or three
decades.
Recent aggressive judicial activism can only be seen as a part of the efforts of the
Constitutional Courts in India to establish rule-of-law society, which implies that no
matter how high a person, may be the law is always above him.

Go To Module-1 QUESTIONS
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Doctrine of Separation is never completely accepted and implemented in India. Discuss


this statement and explain the doctrine of Separation of Powers as given by Montesque.
(Oct-2013, Dec-2015)
Explain in detail : the doctrine of separation of powers propounded by
Montesque and analyze its acceptance in India. (Nov-2012)
Explain in detail the doctrine of separation of powers. Weather this doctrine is fully
accepted in India. Explain with illustrations. (Nov-2014)

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Explain in detail : principle of separation of power. (Nov-2011)


Discuss the doctrine of Separation of Powers in detail. (Dec-2016)
ANSWER :
Refer :

Intro :
The doctrine of Separation of Powers is of ancient origin. The origin of the doctrine
is traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John
Boding and British Politician Locke respectively had expounded the doctrine of
separation of powers. But it was Montesquieu, French jurist, who for the first time
gave it a systematic and scientific formulation in his book Esprit des Lois (The
spirit of the laws).
Montesquieu said that if the Executive and the Legislature are the same person or
body of persons, there would be a danger of the Legislature enacting oppressive laws
which the executive will administer to attain its own ends. For laws to be enforced by
the same body that enacts them, makes the judge a legislator rather than an
interpreter of law. If one person or body of persons could exercise both the executive
and judicial powers in the same matter, there would be arbitrary powers, which would
amount to complete tyranny, if the legislative power would be added to the power of
that person.
The value of the Montesquieu doctrine lies in the fact that it seeks to preserve
human liberty by avoiding the concentration of powers in one person or body of
persons. The different organs of government should thus be prevented from
encroaching on the province of the other organ.
Montesquieu theory has had different application in France, USA and England :
In France, it resulted in the rejection of the power of the courts to review acts of
the legislature or the executive. The existence of separate administrative courts to
adjudicate disputes between the citizen and the administration owes its origin to
the theory of separating of powers.
The principle was categorically adopted in the making of the Constitution of the
United States of America. There, the executive power is vested in the president.
Article the legislative power in congress and the judicial power in the Supreme
Court and the courts subordinates thereto. The President is not a member of the
Congress. He appoints his secretaries on the basis not of their party loyalty but
loyalty to himself. His tenure does not depend upon the confidence of the Congress
in him. He cannot be removed except by impeachment, However, the United States
constitution makes departure from the theory of strict separation of powers in this
that there is provision for judicial review and the supremacy of the ordinary courts
over the administrative courts or tribunals.

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In the British Constitution the Parliament is the Supreme legislative authority. At


the same time, it has full control over the Executive. The harmony between the
Legislator and the (Executive) is secured through the Cabinet. The Cabinet is
collectively responsible to the Parliament. The Prime Minister is the head of the
party in majority and is the Chief Executive authority. He forms the Cabinet. The
Legislature and the Executive are not quite separate and independent in England.
So far as the Judiciary is concerned its independence has been secured by the Act
for Settlement of 1701 which provides that the judges hold their office during good
behaviour, and are liable to be removed on a presentation of addresses by both the
Houses of Parliament. They enjoy complete immunity in regard to judicial acts.
Detailed Discussion on India :
In India, the executive is part of the legislature. The President is the head of the
executive and acts on the advice of the Council of Ministers. Under Article 53 and
74 (1), he can be impeached by Parliament. Article 56 (1) (b) read with Art 61,
Constitution. The Council of Ministers is collectively responsible to the Lok Sabha
Article 75 (3) and each minister works during the pleasure of the President. Article
75 (2) If the Council of Ministers lose the confidence of the House, it has to resign.
In India, functionally, the Presidents or the Governors assent is required for all
legislations. (Articles 111,200 and Art 368). The President or the Governor has
power of making ordinances when both Houses of the legislature are not in session.
(Articles 123 and 212). This is legislative power, and an ordinance has the same
status as that of a law of the legislature. (AK Roy v Union of India AIR 1982 SC
710). The President or the Governor also have power to grant pardon (Articles 72
and 161). The legislature performs judicial function while committing for contempt
those who defy its orders or commit breach of privilege (Articles 105 (3) 194 (3).
Thus, the executive is dependent on the Legislature and while it performs some
legislative functions such as subordinate it, also performs some executive functions
such as those required for maintaining order in the house.
There is, however, considerable institutional separation between the judiciary and
the other organs of the government. (See Art 50)
The Judges of the Supreme Court are appointed by the President in consultation
with the Chief justice of India and such of the judges of the supreme Court and the
High Courts as he may deem necessary for the purpose. (Article 124 (2))
The Judges of the High Court are appointed by the President after consultation with
the Chief Justice of India, the Governor of the state, and, in the case of
appointment of a judge other than the Chief justice, the Chief Justice of the High
Court( Article 217 (1).)
It has now been held that in making such appointments, the opinion of the Chief
justice of India shall have primacy. (Supreme Court Advocates on Record
Association.)

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The judges of the high Court and the judges of the Supreme Court cannot be
removed except for misconduct or incapacity and unless an address supported by
two thirds of the members and absolute majority of the total membership of the
House is passed in each House of Parliament and presented to the President Article
124 (3). An impeachment motion was brought against Justice Ramaswami, a judge
of the Supreme court, but it failed to receive the support of the prescribed number
of members of Parliament.
The salaries payable to the judges are provided in the Constitution or can be laid
down by a law made by Parliament. Article 125 (1) and Art 221 (1).
Every judge shall be entitled to such privileges and allowances and to such rights in
respect of absence and pension, as may from time to time be determined by or
under any law made by Parliament and until so determined, to such privileges,
allowance and rights as are specified in the Second Schedule.
Neither the privileges nor the allowance nor his rights in respect of leave of
absence or pension shall be varied to his disadvantage after his appointment.
Appointments of persons to be, and the posting and promotion of, district judges in
any state shall be made by the Governor of the State in consultation with the High
Court exercising jurisdiction in relation to such state (Article 233)
The control over the subordinate courts is vested in the acts of the Legislature as
well as the executive.
The Supreme Court has power to make rules (Article 145) and exercises
administrative control over its staff.
The judiciary has power to enforce and interpret laws and if they are found in
violation of any provision of the Constitution, it can declare them un-constitutional
and therefore, void.
It can declare the executive action void if it is found against any provisions of the
Constitution.
Article 50 provides that the State shall take steps to separate the judiciary from the
executive.
CONCLUSION :
Thus, the three organs of the Government (i.e. the Executive, the Legislature and
the Judiciary) are not separate. Actually the complete demarcation of the functions
of these organs of the Government is not possible.
The Constitution of India does not recognize the doctrine of separation of power in
its absolute rigidity, but the functions of the three organs of the government have
been sufficiently differentiated. (Ram Jawaya v. State of Punjab, AIR 1955 SC 549)
None of the three of organs of the Government can take over the functions
assigned to the other organs.(Keshanand Bharti v. State of Kerala, AIR 1973 SC
1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899)

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In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court
has held that the judiciary must recognize the fundamental nature and importance
of the legislature process and must accord due regard and deference to it.
The Legislative and Executive are also expected to show due regard and deference
to the judiciary.
The Constitution of India recognizes and gives effect to the concept of equality
between the three organs of the Government. The concept of checks and balance is
inherent in the scheme.
Thus, we can conclude that the Montesque Doctrine of Separation of Powers is
never completely accepted and implemented in India.

Go To Module-1 QUESTIONS
Go To Contents

Explain the following in the light of principles of natural justice along with relevant
cases of the Supreme Court of India, (i) "No one should be condemned unheard", (ii)
No one shall be the judge in his own case. (Oct-2013)
Discuss : Natural Justice Principle as accepted in India, Judicial approach and
important cases.
Explain in detail : the principle of natural justice with necessary cases. (Nov-2012,
Dec-2015)
Explain in detail : principles of natural justice given in Administrative Law. (Nov-2011)
Discuss the principle of Audi alteram partem (hear the other side) with decided
cases. (Nov-2014)
Explain : Principle of Natural Justice. (Dec-2016)
ANSWER :
Intro :
The concept of natural justice is the backbone of law and justice. In the quest for
justice the principles of natural justice have been utilized since the dawn of
civilization. Principles of natural justice trace their ancestry to ancient civilization
and centuries long past. Initially natural justice was conceived as a concomitant of
universal natural law.
Most of the thinkers of fifteenth to eighteenth century considered natural law and
justice as consisting of universal rules based on reason and thus were immutable
and inviolable.
Greek thinkers laid the basis for natural law. The Greek philosophers traditionally
regarded law as closely to both justice and ethics.

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Similarly in the middle Ages, the Christian legal philosophy, considered natural law
founded on reasons and a reflection of eternal laws.
The concept of natural justice can be traced from Biblical Garden of Eden, as also
from Greek, Roman and other ancient cultures like Hindu.
Even before evolution of western civilization, the Vedic Indians too were familiar
with the natural theory of law.
Thus, the widespread recognition, in many civilizations and over centuries the
principle of natural justice belong rather to the common consciousness of the
mankind than to juridical science.
Though, the practice of confining the expression natural justice to the procedural
principles (that no one shall be judge in his own case and both sides must heard) is
of comparatively recent origin, it was always present in one way or the other form.
The expression was used in the past interchangeably with the expressions Natural
Law, Natural enquiry, the laws of God, Sampan jus and other similar expressions.
What does natural justice mean ?
Natural Justice is rooted in the natural sense of what is right and wrong. It
mandates the Adjudicator or the administrator, as the case may be, to observe
procedural fairness and propriety in conducting inquiry or investigation or
proceedings.
The object of Natural Justice is to secure Justice by ensuring procedural fairness.
To put it negatively, it is to prevent miscarriage of Justice.
It is concerned with procedure and it seeks to ensure that the procedure is just,
fair and reasonable.
It may be regarded as counterpart of the American Due Process.
Co-relationship between Law and Natural Justice :
(a) Law is the means, Justice is the end. Law may be substantive as well as
procedural.
(b) Natural Justice also aims at Justice. It, however, concerns itself only with the
procedure. It seeks to secure justice by ensuring procedural fairness. It creates
conditions for doing justice.
(c) Natural justice humanizes the Law and invests the Law with fairness.
(d) Natural Justice not only supplements the Law, but can, in few cases, also
supplant (replace) the Law.
(e) Natural Justice operates in areas not specifically covered by the enacted law. An
omission in statute, likely to deprive a procedure of fairness, may be supplied by
reading into the relevant provision the appropriate principle of Natural Justice.
Natural Justice in contemporary India :
The natural justice principles in India are transmigration of common law to the sub-

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continent during the British rule. Before the commencement of constitution the
courts in India insisted on fair hearing where punishments were awarded under the
statutory provisions and they demanded fair hearing, even in statutory
requirements.
Indian courts clung to the traditional distinction between (i) judicial, (ii) quasi-
judicial, and (iii) administrative functions. The application of natural justice was for
considerable time confined to (i) and (ii) ie judicial and quasi-judicial proceedings.
In state of Bina Panis case (AIR 1967 S.C. 1259) the Supreme Court has tried to
abandon the traditional view by holding that It is true that the order is
administrative in Character but even an administrative order must be made
consistently with the rules of natural justice.
The decision of Supreme Court in A.K. Kripaks case (AIR 1973 S.C. 150) is
landmark in the application of principles of natural justice. In the instant case court
held : the dividing line between an administrative power and a quasi-judicial
power is quite thin and is being gradually obliterated.
The observations of Hegde,J are remarkable. The learned judge after examining
various English and Indian cases has tried to remove all the clouds of doubt
relating to application of natural justice by stating, "the concept of rule of law
would loose its vitality if the instrumentalities of the state are not charged with
the duty of discharging their functions in a fair and just manner".
The controversy was put at rest Bhagwati,J. in Manekas case, he emphasized that,
"If the purpose of the rules of natural justice is to prevent miscarriage of justice
one fails to see why those rules should be made inapplicable to administrative
enquiries".
Fundamental Principles of Natural Justice :
1. Nemo Judex in Causa Sua or Rule against bias or None should be a Judge in his
own cause, and
2. Audi Alter am Partem or Hear the other side or Hear both sides or No person
should be condemned unheard.
Exceptions to the principle of Natural Justice :
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.
There are 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.
These rules do not apply in the same manner to situations which are not alike.

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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.
In the following cases, the principles of natural justice may be excluded :
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.
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.
Effect of breach of the principles of natural justice :
A complicated and somewhat difficult question is : What is the effect of breach or
contravention of the principles of natural justice?
Does the breach 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

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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'.
However, 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.
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 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.
1. Nemo Judex in Causa Sua or Rule against bias or None should be a Judge in his
own cause :
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 Caesars 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.

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A Judge must be of sterner stuff. His mental equipoise must always remain firm
and undeflected. He should not allow his personal prejudice to go into the
decision-making. The object is not merely that the scales be held even; it is also
that they may not appear to be inclined."
If the Judge is subject to bias in 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 can be of three types,
A. Pecuniary bias,
B. Personal bias,
C. Judicial obstinacy (Bias as to the Subject-matter)
A. Pecuniary Bias :
It is well-settled that a pecuniary interest, however slight, will disqualify any
person from acting as an adjudicator, 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 Vice-Chancellor and the appeals against those decrees were filed
in the Court of Lord Chancellor Cottenham. The appeals were dismissed by him
and decrees were confirmed in 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.
B. 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

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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.
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 the selection of N on the ground that the principles of natural justice
were violated.
C. Judicial Obstinacy (Bias as to the Subject-matter) :
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 :
Direct pecuniary interest, however small or slight it may be, will disqualify a
person from acting as a Judge.
However, in case of other interests, the test should be of reasonable likelihood
of bias. It must be based on reasonable apprehension of a reasonable man fully
apprised of all the facts.
It is no doubt desirable that all Judges, like Caesar's wife must be above
suspicion. But 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.
2. Audi Alter am Partem or Hear the other side or Hear both sides or No person
should be condemned unheard :
Introduction :

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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.
Elements of the maxim : Generally, this maxim includes two elements :
A. notice; and
B. hearing
A. 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 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 Kings 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

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a different place from the place of his residence and he is not able to attend the
inquiry due to non-payment 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.
B. Hearing :
The second requirement of audi alteram partem maxim is that the person
concerned must be given an opportunity of being heard before any adverse
action is taken against him.
In the historic case of Cooper v. Wandsworth Board of Works, the defendant
Board had power to demolish any building without giving any opportunity of
hearing if it was erected without prior permission. The Board demolished the
house of the plaintiff under this provision. The action of the Board was not in
violation of the statutory provision. The court held that the Board's power was
subject to the qualification that no man can be deprived of his property without
having an opportunity of being heard.
The extent of opportunity of hearing to be given is neither dependent upon the
quantum of loss to the aggrieved person nor referable to the fatness of the stake
but is essentially related to the demands of a given situation. Therefore, if a
show cause notice is issued and the explanation is considered before taking
action under the statutory provisions, the rules of natural justice cannot be said
to have been violated on the ground that more opportunity should have been
afforded as a huge amount was at stake.
Disclosure of Materials :
An adjudicating authority must disclose all evidence and material placed
before it in the course of proceedings and must afford an opportunity to the
person against whom it is sought to be utilized.
The object underlying such disclosure is to afford an opportunity to the person
to enable him to prepare his defence, rebut the evidence relied upon by the
complainant against him and put forward his case before the authority.
Cross-Examination :

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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 :
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 taking the impugned action, the said action cannot be set
aside only on the ground that personal hearing was not given.
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.

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Case-laws on Natural justice :


<work on this>
Conclusion : It is well-settled law that even if the exercise of power is purely
administrative in nature, if it adversely affects any person, the principles of natural
justice must be observed and (i) exercise should be un-biased, and (ii) the person
concerned must be heard. Violation of the principles of natural justice makes the
exercise of power ultra vires and void.

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Discuss : Classification of Administrative actions, Administrative functions, Judicial


Functions and Quasi-Judicial functions
Discuss in detail the concept of Administrative Action and Administrative
Functions. (Dec-2016)
Explain : Judicial functions and Quasi-judicial functions. (Dec-2016)
Discuss the administrative act. Differentiate between administrative act, judicial act
and quasi judicial act. (Dec-2015)
ANSWER :
page-21 to 38 / 135
page-32/271
Intro :
Administrative action is a comprehensive term and defies exact definition.
In modern times the administrative process is a by-product of intensive form of
government and cuts across the traditional classification of governmental powers
and combines into one all the powers, which were traditionally exercised by three
different organs of the State. Therefore, there is general agreement among the
writers on administrative law that any attempt of classifying administrative
functions or any conceptual basis is not only impossible but also futile.
Even then a student of administrative law is compelled to delve into field of
classification because the present-day law especially relating to judicial review
freely employs conceptual classification of administrative action.
Thus, speaking generally, an administrative action can be classified into following
categories :
(A) Pure Administrative function OR Rule-application action
(B) Judicial Functions
(C) Quasi-judicial action OR Rule-adjudicatory action

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(D) Quasi-legislative action OR Rule-making action


(A) Pure Administrative function OR Rule-application action :
Though the distinction between quasi-judicial and pure administrative function has
become blurred, yet it does not mean that there is no distinction between the two.
If two persons are wearing a similar coat, it does not mean that there is no
difference between them.
The difference between quasi-judicial and pure administrative function may not be
of much practical consequence today but it may still be relevant in determining the
measure of natural justice applicable in a given situation.
In A.K. Kraipak v. Union of India, the Court was of the view that in order to
determine whether the action of the administrative authority is quasi-judicial or
administrative, one has to see the nature of power conferred, to whom power is
given, the framework within which power is conferred and the consequences.
Therefore, pure administrative action,
is the residuary action which is neither legislative nor judicial
is concerned with the treatment of a particular situation and is devoid of
generality
has no procedural obligations of collecting evidence and weighing argument
is based on subjective satisfaction where decision is based on policy and
expediency
does not decide a right though it may affect a right.
However, it does not mean that the principles of natural justice can be ignored
completely when the authority is exercising pure administrative powers. Unless
the statute provides otherwise, a minimum of the principles of natural justice must
always be observed depending on the fact situation of each case.
Illustration : No exhaustive list of such pure-administrative actions may be drawn;
however, a few may be noted for the sake of clarity :
1) Making a reference to a tribunal for adjudication under the Industrial Disputes
Act.
2) Functions of a selection committee.
Administrative function may be statutory (having the force of law) or non statutory.
The bulk of the administrative action is statutory because a statute or the
Constitution gives it a legal force but in some cases it may be non-statutory, such
as issuing directions to subordinates not having the force of law, but its violation
may be visited with disciplinary action.
(B) Judicial Functions :
<work on this>
(C) Quasi-judicial action OR Rule-adjudicatory action :

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Today the bulk of the decisions which affect a private individual come not from
courts but from administrative agencies exercising adjudicatory powers. The reason
seems to be that since administrative decision-making is also a by-product of the
intensive form of government, the traditional judicial system cannot give to the
people that quantity of justice, which is required in a welfare State.
Administrative decision-making may be defined, as a power to perform acts
administrative in character, but requiring incidentally some characteristics of
judicial traditions.
On the basis of this definition, the following functions of the administration have
been held to be quasi-judicial functions :
1. Disciplinary proceedings against students.
2. Disciplinary proceedings against an employee for misconduct.
3. Confiscation of goods under the sea Customs Act, 1878.
4. Cancellation, suspension, revocation or refusal to renew license or permit by
licensing authority.
5. Determination of citizenship.
6. Determination of statutory disputes.
7. Power to continue the detention or seizure of goods beyond a particular
period.
8. Refusal to grant no objection certificate under the Bombay Cinemas
(Regulations) Act, 1953.
9. Forfeiture of pensions and gratuity.
10. Authority granting or refusing permission for retrenchment.
11. Grant of permit by Regional Transport Authority.
(D) Quasi-legislative action OR Rule-making action OR Delegated Legislation :
Legislature is the law-making organ of any state. In some written constitutions, like
the American and Australian Constitutions, the law making power is expressly
vested in the legislature.
In the Indian Constitution though this power is not so expressly vested in the
legislature, yet the combined effect of Articles 107-111 and 196-201 is that the law
making power can be exercised for the Union by Parliament and for the States by
the respective State legislatures. It is the intention of the Constitution-makers that
those bodies alone must exercise this law-making power in which this power is
vested.
However, in the twentieth Century today these legislative bodies cannot give that
quality and quantity of laws, which are required for the efficient functioning of a
modern intensive form of government. Therefore, the delegation of law-making
power to the administration is a compulsive necessity.

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When any administrative authority exercises the law-making power delegated to it


by the legislature, it is known as the rule-making power delegated to it by the
legislature, it is known as the rule-making OR Quasi-legislative action of the
administration and also commonly known as delegated legislation.
Rule-making action of the administration partakes all the characteristics, which a
normal legislative action possesses. Such characteristics may be generality,
prospectivity and a behaviour that bases action on policy consideration and gives a
right or a disability. These characteristics are not without exception.
Differentiate between administrative act, judicial act and quasi judicial act :
<work on this>
Difference between pure-administrative function and quasi-judicial function :
Though by and large all administrative action is discretionary and is based on
subjective satisfaction, however, the administrative authority must act fairly,
impartially and reasonable. Therefore, at this stage it becomes very important for
us to know what exactly is the difference between Administrative and quasi-judicial
Acts.
Broadly speaking,
pure-administrative acts are acts which are required to be done on the
subjective satisfaction of the administrative authority. Here decisions involve a
choice as there is no fixed standard to be applied. These are called subjective
decisions or pure administrative action or Rule-application action.
quasi-judicial acts are act which are required to be done on objective satisfaction
of the administrative authority. Here decisions are founded on pre-determined
standards. These are called objective decisions, ie quasi-judicial or adjudicatory
function.
In case of the pure-administrative function there is no legal obligation upon the
person charged with the duty of reaching the decision to consider and weigh,
submissions and arguments or to collate any evidence. The grounds upon which he
acts and the means, which he takes to inform himself before acting, are left
entirely to his discretion.
Conclusion :
The Supreme Court famously observed, It is well settled that the old distinction
between a judicial act and administrative act has withered away and we have been
liberated from the pestilent incantation of administrative action.

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Discuss : Droit administratif


ANSWER :
Meaning of Droit administratif : droit administratif' is a body of rules which
determines the organisation and duties of public administrations and which regulates
the relation of administration with the citizen of the states.
French administrative law is known as Droit Administratif which means a body of
rules which determine the organization, powers and duties of public administration
and regulate the relation of the administration with the citizen of the country.
Discussion :
Droit Administrative does not represent the rules and principles enacted by
Parliament. It contains the rules developed by administrative courts.
Napoleon Bonaparte was the founder of the Droit administrative. It was he who
established the Conseil dEtat. He passed an ordinance depriving the law courts of
their jurisdiction on administrative matters and another ordinance that such
matters could be determined only by the Conseil dEtat.
Waline, the French jurist, propounds three basic principles of Droit administrative :
1. the power of administration to act suo motu and impose directly on the
subject the duty to obey its decision;
2. the power of the administration to take decisions and to execute them suo
motu may be exercised only within the ambit of law which protects individual
liberties against administrative arbitrariness;
3. the existence of a specialized administrative jurisdiction.
One good result of this is that an independent body reviews every administrative
action. The Conseil dEtat is composed of eminent civil servants, deals with a
variety of matters like claim of damages for wrongful acts of Government servants,
income-tax, pensions, disputed elections, personal claims of civil servants against
the State for wrongful dismissal or suspension and so on. It has interfered with
administrative orders on the ground of error of law, lack of jurisdiction, irregularity
of procedure and detournement depouvior (misapplication of power). It has
exercised its jurisdiction liberally.
Main characteristic features of droit administratif : The following characteristic
features are of the Droit Administratif in France :-
Those matters concerning the State and administrative litigation falls within the
jurisdiction of administrative courts and cannot be decided by the land of the
ordinary courts.
Those deciding matters concerning the State and administrative litigation, rules
as developed by the administrative courts are applied.
If there is any conflict of jurisdiction between ordinary courts and administrative

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court, it is decided by the tribunal des conflicts.


Conseil dEtat is the highest administrative court.
Prof. Brown and Prof. J.P. Garner have attributed to a combination of following
factors as responsible for its success
The composition and functions of the Conseil dEtat itself;
The flexibility of its case-law;
The simplicity of the remedies available before administrative courts;
The special procedure evolved by those courts; and
The character of the substantive law, which they apply.
Despite the obvious merits of the French administrative law system, Prof. Dicey
was of the opinion that there was no rule of law in France nor was the system so
satisfactory as it was in England. He believed that the review of administrative
action is better administered in England than in France.
The system of Droit Administratif according to Dicey, is based on the following two
ordinary principles which are alien to English law
Firstly, that the government and every servant of the government possess, as
representative of the nation, a whole body of special rights, privileges or
prerogatives as against private citizens, and the extent of rights, privileges or
considerations which fix the legal rights and duties of one citizen towards
another. An individual in his dealings with the State does not, according to
French law; stand on the same footing as that on which he stands in dealing
with his neighbor.
Secondly, that the government and its officials should be independent of and
free from the jurisdiction of ordinary courts.
It was on the basis of these two principles that Dicey observed that Droit
Administratif is opposed to rule of law and, therefore, administrative law is alien to
English system. But this conclusion of Dicey was misconceived. Droit Administratif,
that is, administrative law was as much there in England as it was in France but
with a difference that the French Droit Administratif was based on a system, which
was unknown to English law. In his later days after examining the things closely,
Dicey seems to have perceptibly modified his stand.
Conclusion :
Despite its overall superiority, the French administrative law cannot be
characterized with perfection. Its glories have been marked by the persistent
slowness in the judicial reviews at the administrative courts and by the difficulties
of ensuring the execution of its last judgment.
Moreover, judicial control is the only one method of controlling administrative
action in French administrative law, whereas, in England, a vigilant public opinion,

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a watchful Parliament, a self-disciplined civil service and the jurisdiction of


administrative process serves as additional mode of control over administrative
action.
By contrast, it has to be conceded that the French system still excels its
counterpart in the common law countries of the world.

Go To Module-1 QUESTIONS
Go To Contents

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Module - 2) Delegated Legislation and Quasi-Judicial Functions:


2.1) Delegated Legislation : Definition, Reasons of its growth
2.2) Delegated Legislation in USA and in India
2.3) Functions which can be and cannot be delegated, Conditional Legislation,
Sub-delegation, General Principles for delegated legislations
2.4) Controls and Safeguards over Delegated Legislation : Purpose
2.5) Judicial, Legislative and other controls over Delegated Legislation <overlap
with module-3.2>
2.6) Quasi-judicial functions: Definition, distinction from Administrative
functions <overlap with module-1>

Go To Contents

Module-2 QUESTIONS :
Explain the meaning of delegated legislation and different kinds of control on it with
decided cases. (Nov-2011, Dec-2015)
Discuss : Judicial, Legislative and other Controls and Safeguards over Delegated
Legislation
Discuss : General Principles for delegated legislations.
What is delegated legislation? Explain the steps relating to control over delegated
legislation. (Nov-2012)
Explain in detail the Delegated Legislation and Control over it. (Oct-2013)
Explain in detail the judicial and legislative control over the delegated legislation.
(Nov-2014)
Discuss in detail the concept of Delegated Legislation. (Dec-2016)
Discuss : Delegated Legislation in USA and in India
Discuss : Functions which can be and cannot be delegated
Write notes : Conditional Legislation. (Oct-2013, Nov-2014, Dec-2015)
Write note : Act of sub-delegation. (Nov-2012, Nov-2014, Dec-2015)

Go To Contents

Module-2 ANSWERS :
Explain the meaning of delegated legislation and different kinds of control on it with
decided cases. (Nov-2011, Dec-2015)

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Discuss : Judicial, Legislative and other Controls and Safeguards over Delegated
Legislation
Discuss : General Principles for delegated legislations.
What is delegated legislation? Explain the steps relating to control over delegated
legislation. (Nov-2012)
Explain in detail the Delegated Legislation and Control over it. (Oct-2013)
Explain in detail the judicial and legislative control over the delegated legislation.
(Nov-2014)
ANSWER :
Refer :

Intro :
Delegated Legislation is one of the most significant developments (in
Administrative Law). The development of the legislative powers of the
administrative authorities in the form of the delegated legislation occupies very
important place in the study of the administrative law.
What is delegated legislation ? We know that there is no such general power
granted to the executive to make law. Executive can only supplements the law
under the authority of legislature. This type of activity namely, the power to
supplement legislation been described as delegated legislation or subordinate
legislation.
Reasons for growth of delegated legislation : The reasons as to why the Parliament
alone cannot perform the jobs of legislation in this changed context are not far to
seek. Apart from other considerations the inability of the Parliament to supply the
necessary quantity and quality legislation to the society may be attributed to the
following reasons :
i) Certain emergency situations may arise which necessitate special measures. In
such cases speedy and appropriate action is required. The Parliament cannot act
quickly because of the time required by the Parliament to enact the law.
ii) The bulk of the business of the Parliament has increased. Lot of the time of the
Parliament is devoted to political matters, matters of policy and foreign affairs.
iii) Certain matters covered by delegated legislation are of a technical nature which
require handling by experts. In such cases it is inevitable that powers to deal with
such matters is given to the appropriate administrative agencies to be exercised
according to the requirements of the subject matter.
iv) Parliament while deciding upon a certain course of action cannot foresee the
difficulties, which may be encountered in its execution. Accordingly various statutes
contain a 'removal of difficulty clause' empowering the administration to remove

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such difficulties by exercising the powers of making rules and regulations. These
clauses are always so worded that very wide powers are given to the
administration.
iv) The practice of delegated legislation introduces flexibility in the law. The rules
and regulations, if found to be defective, can be modified quickly. Experiments can
be made and experience can be profitability utilized.
Nature and Scope of delegated legislation :
Delegated legislation means legislation by authorities other than the Legislature,
the former acting on express delegated authority and power from the later.
Delegation is considered to be a sound basis for administrative efficiency and it
does not by itself amount to abdication of power if resorted to within proper limits.
The delegation should not, in any case, be unguided and uncontrolled. Parliament
and State Legislatures cannot abdicate the legislative power in its essential aspects
which is to be exercised by them. It is only a non-essential legislative function that
can be delegated and the moot point always lies in the line of demarcation between
the essential and nonessential legislative functions.
The essential legislative functions consist in making a law. It is to the legislature to
formulate the legislative policy and delegate, to executive, the formulation of
details in implementing that policy. Discretion as to the formulation of the
legislative policy is prerogative and function the legislature and it cannot be
delegated to the executive.
Discretion to make alterations in an Act and to effect amendments or repeals in the
existing laws is an essential legislative functions which cannot be delegated.
In order to avoid the dangers, the scope of delegation is strictly circumscribed by
the Legislature by providing for adequate safeguards, controls and appeals against
the executive orders and decisions.
The power delegated to the Executive to modify any provisions of an Act by an
order must be within the framework of the Act giving such power. The power to
make such a modification no doubt, implies certain amount of discretion but it is a
power to be exercised in aid of the legislative policy of the Act and cannot
i) travel beyond it, or
ii) run counter to it, or
iii) change the essential features, the identity, structure or the policy of the Act.
General Discussion :
Under the constitution of India, articles 245 and 246 provide that the legislative
powers shall be discharged by the Parliament and State legislature. However, the
delegation of limited legislative power to executive was conceived to be inevitable
and therefore it was not prohibited in the constitution. Further, Articles 13(3)(a) of

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the Constitution of India lays down that laws (including ordinances, order by-law,
rule regulation, notification, etc), which if found in violation of fundamental rights
would be void.
While commenting on indispensability of delegated legislation Justice Krishna Iyer
observed in the case of Arvinder Singh v. State of Punjab, AIR A1979 SC 321, that
the complexities of modern administration are so bafflingly intricate and bristle with
details, urgencies, difficulties and need for flexibility that our massive legislature
may not get off to a start if they must directly and comprehensively handle
legislative business in their plenitude. Delegation of some part of legislative power
becomes a compulsive necessity for viability.
General Principles for delegated legislations :
<work on this>
Modes of control over delegated legislation : The practice of conferring legislative
powers upon administrative authorities, though beneficial and necessary, is also
dangerous because of the possibility of abuse of powers and other attendant evils.
There is consensus of opinion that proper precautions must be taken for ensuring
proper exercise of such powers. Unbridled discretion is most likely to result in
arbitrariness. The exercise of delegated legislative powers must be properly
circumscribed and vigilantly scrutinized by Courts and Legislatures to ensure the
advantage of the practice or to avoid the danger of its misuse.
Control of delegated legislation may be one or more of the following types :-
(1) Procedural control;
(2) Parliamentary control; and
(3) Judicial control;
(1) Procedural Control Over Delegated Legislation :
(A) Prior consultation of interests likely to be affected by proposed delegated
Legislation : From the citizen's point of view the most beneficial safeguard against
the dangers of the misuse of delegated Legislation is the development of a
procedure to be followed by the delegates while formulating rules and regulations.
In England as in America the Legislature while delegating powers abstains from
laying down elaborate procedure to be followed by the delegates. But certain
acts do however provide for the consultation of interested bodies, and
sometimes of certain Advisory Committees which must be consulted before the
formulation and application of rules and regulations.
This method has largely been developed by the administration independent of
statute or requirements. The object is to ensure the participation of affected
interests so as to avoid various possible hardships. Consultation has the dual
merits of providing as opportunity to the affected interests to present their own
case and to enable the administration to have a first-hand idea of the problems

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and conditions of the field in which delegated legislation is being contemplated.


(B) Prior publicity of proposed rules and regulations : Another method is prior
publicity of statutory rules to inform those likely to be affected by the proposed
rules and regulations so as to enable them to make representation for
consideration of the rule-making authority.
The rules of Publication Act, 1893, S.I. provided for the use of this method. The
Act provided that notice of proposed 'statutory rules' is given and the
representations of suggestions by interested bodies be considered and acted
upon if proper. But the Statutory Instruments Act, 1946 omitted this practice in
spite of the omission, the Committee on Ministers Powers 1932, emphasized the
advantages of such a practice.
(C) Publication of Delegated Legislation : Adequate publicity of delegated legislation
is absolutely necessary to ensure that law may be ascertained with reasonable
certainty by the affected persons. Further the rules and regulations should not
come as a surprise and should not consequently bring hardships which would
naturally result from such practice.
If a law is not known, a person cannot regulate his affairs to avoid a conflict with
them and to avoid losses. The importance of these laws is realized in all
countries and legislative enactments provide for adequate publicity.
(2) Parliamentary control in India over delegation : In India, the question of control
on rule-making power engaged the attention of the Parliament. Under the Rule of
Procedure and Conduct of Business of the House of the People, provision has been
made for a Committee which is called 'Committee on Subordinate Legislation'. The
committee is usually presided over by a member of the Opposition.
The Committee :
i) scrutinizes the statutory rules, orders. Bye-laws, etc. made by any authority,
and
(ii) report to the House whether the delegated power is being properly exercised
within the limits of the delegated authority,
Functions of the Committee :
the Subordinate legislation is in accord with the general objects of the
Constitution or the Act pursuant to which it is made;
it contains matter which should more properly be dealt within an Act of
Parliament;
it contains imposition of any tax;
it, directly or indirectly, ousts the jurisdiction of the courts of law;
it gives retrospective effect to any of the provisions in respect of which the
Constitution or the Act does not expressly confer any such power;

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it is constitutional and valid;


it involves expenditure from the Consolidated Fund of India or the Public
Revenues;
its form or purpose requires any clarification for nay reason;
it appears to make some unusual or unexpected use of the powers conferred by
the Constitution or the Act pursuant to which it is made; and
there appears to have been unjustifiable delay in its publication on its laying
before the Parliament.
Parliamentary control of delegated legislation is thus exercised by,
i) taking the opportunity of examining the provisions providing for delegation in
a Bill, and
ii) getting them scrutinized by parliamentary committee of the Rules,
Regulations, Bye-laws and orders,
iii) And when the Bill is debated,---- by
the issue of necessity of delegation, and
the contents of the provisions providing for delegation, can be taken up.
After delegation is sanctioned in an Act, the exercise of this power by the authority
concerned should receive the attention of the House of the Parliament. Indeed, it is
this later stage of parliamentary scrutiny of the delegated authority and the rules
as framed in its exercise that is more important. In a formal sense, this is sought
to be provided by making it necessary that the rules, etc., shall be laid on the Table
of the House. The members are informed of such laying in the daily agenda of the
House.
The advantage of this procedure is that members of both the Houses have such
chances as parliamentary procedure
i) to modify or the repeal of the enactment under which obnoxious rules and
orders are made, or
ii) to revoke parent laws themselves.
Note that the provisions for laying the rule, etc., are being made now practically in
every Act which contains a rule making provision. Such provisions are enacted in
the following form :-
(1) The Government may by notification in the official Gazette, make rules for
carrying out all or any of the purposes of this Act.
(2) Every rule made under this section shall be laid, as soon as may be, after it
is made, before each House of Parliament while it is in session for a total period
of fourteen days which may be comprised in one session or in the successive
session immediately following, both Houses agree in making any modification in
the Rule or in the annulment of the rule. The rule thereafter have effect only in

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such modified form or shall stand annulled, as the case may be, so however that
any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule."
(3) Judicial Control : The chief instrument in the hands of the judiciary to control
delegated legislation is the "Doctrine of ultra vires". The doctrine of ultra vires may
apply with regard to :-
(A) Procedural defects in exercise of delegated power; and
(B) substantive defects in law/ rules being ultra vires the parent law
(C) Delegation of power being unconstitutional
(D) Excessive delegation by the legislature
(A) Procedural defects : The Acts of Parliament delegating legislative powers to
other bodies or authorities often provide certain procedural requirements to be
complied with by such authorities while making rules and regulations, etc. These
formalities may consist of consultation with interested bodies, publication of draft
rules and regulations, hearing of objections, considerations of representations etc.
If these formal requirements are mandatory in nature and are disregarded by the
said authorities then the rules etc. so made by these authorities would be
invalidated by the Judiciary. In short subordinate legislation in contravention of
mandatory procedural requirements would be invalidated by the court as being
ultra vires the parent statute.
The question of the effectiveness of the application of the doctrine of ultra vires,
so far as procedure is concerned, would largely depend upon the words used in
the particular statue. If the words are specific and clearly indicate the bodies to
be consulted, then it would be possible to show noncompliance.
(B) Substantive Defects : In case of delegated legislation, unlike and Act of the
Parliament, the court can inquire into whether it is within the limits laid down by
the parent statute. If a piece of delegated legislation were found to be beyond such
limits, court would declare it to be ultra vires and hence invalid. (R.V.Minister of
Health, (1943), 2 ALL ER591).
The administrative authorities exercising legislative power under the authority of
an Act of the Parliament must do so in accordance with the terms and objects of
such statute. To find out whether administrative authorities have properly
exercised the powers, the court have to construe the parent statute so as to find
out the intention of the legislature.
(C) Delegation of power being unconstitutional : The delegation can be challenged
in the courts of law as being unconstitutional, excessive or arbitrary.
The scope of permissible delegation is fairly wide. IF delegation is within the
wide limits, it is sustained. However, if delegation infringes on the provisions of
the Constitution it is not sustainable.

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The limitations imposed by the application of the rule of ultra vires are quite
clear. If the Act of the Legislature under which power is delegated, is ultra vires,
the power of the legislature in the delegation can never be good.
No delegated legislation can be inconsistent with the provisions of the
Fundamental Rights. If the Act violates any Fundamental Rights, then such rules,
regulations and bye-laws framed there under cannot be sustained.
Thus, even Where the parent Act is good, still the rules and regulations may
contravene any Fundamental Right and have to be struck down.
(D) Excessive delegation by the legislature as a ground for invalidity of a statute :
In dealing with the challenge, the vires of any State on the ground of Excessive
delegation it is necessary to enquire whether - The impugned delegation involves
the delegation of an essential legislative functions or power.
In Vasant lals case (A.I.R. 1961 S.C. 4), Subba Rao J. observed as follows, "The
constitution confers a power and imposes a duty on the legislature to make laws.
The essential legislative function is the determination of the legislative policy and
its formulation as a rule of conduct. Obviously it cannot abdicate its functions in
favour of another.
The self-discard of legislative power in favour of another agency/ executive
either in whole or in part is beyond the permissible limits of delegation. It is for a
Court to hold on a fair, generous and liberal construction of an impugned statute
whether the legislature exceeded such limits.

Go To Module-2 QUESTIONS
Go To Contents

Discuss : Delegated Legislation in USA and in India


ANSWER :
page-39 / 135
page-53/135
<work on this>

Go To Module-2 QUESTIONS
Go To Contents

Discuss : Functions which can be and cannot be delegated.


ANSWER :
Refer :

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<work on this>

Go To Module-2 QUESTIONS
Go To Contents

Write notes : Conditional Legislation. (Oct-2013, Nov-2014, Dec-2015)


ANSWER :
Refer :

<work on this>

Go To Module-2 QUESTIONS
Go To Contents

Write note : Act of sub-delegation. (Nov-2012, Nov-2014, Dec-2015)


ANSWER :
page-50/135
<work on this>

Go To Module-2 QUESTIONS
Go To Contents

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Module - 3) Judicial Review of Administrative Discretion and Remedies :


3.1) Administrative Discretion, Judicial Review Definition (overlap with module-
4.5)
3.2) Judicial Review of Administrative Discretion: <overlap with Module-2.5>
3.2.1) Failure to exercise discretion
3.2.2) Excess or abuse of discretion
3.3) Judicial and other remedies :
3.3.1) Writ remedies, Kinds of writs, jurisdiction, powers, against whom writ
to be issued, relevant constitutional provisions
3.3.2) Statutory remedies : Civil Suits, Appeals to Courts, Appeal to
tribunals, Appeal before the Supreme Court, SLP, Public Interest
Litigation
3.3.3) Other remedies like Council de Etat, Ombudsman, Lokpal & Lokayukt,
self- help etc.
3.4) Administrative Tribunals : Definition, Origin, Nature, Scope, reasons for its
growth,
3.5) Characteristics of Administrative Tribunals, Distinction from courts, Kinds
of Administrative Tribunals, relevant Constitutional provisions and
amendments - effects thereof, Important judicial pronouncements : Case
of Sampat Kumar, L. Chandrakumar

Go To Contents

Module-3 QUESTIONS :
Explain : Controls on the discretionary powers of the administrators. (Nov-2011)
Discuss in detail the meaning and importance of Judicial Review. (Dec-2016)
Write notes : Malafide : Grounds for Judicial Review of Administrative Discretion.
(Oct-2013)
Discuss : Judicial review of administrative discretion
State different type of Writs and significance thereof. Explain in detail When Writ of
Quo Warranto is useful. HOW it differs from other writs in procedure ? (Oct-2013, Dec-
2015)
Explain : Kinds of writs. (Nov-2011, Dec-2016)
What is writ of habeas corpus? Explain with illustration in which circumstances it can
be filed. (Nov-2012, Nov-2014)
Explain : writ of habeas corpus. (Dec-2015)

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Explain : difference between Art-226 and 227 of the constitution of India. (Nov-2011)
Write note : difference between powers under art-32 and 226. (Nov-2012, Dec-2015)
Write notes : Distinction between writ jurisdiction of High Courts and the Supreme
Court. (Oct-2013)
Explain the power of high courts to issue writs under Art-226 of the constitution of
India. How these powers differ from that of supreme court under Art-32? (Nov-2014)
Discuss : Statutory remedies against administrative discretion : Civil Suits.
Discuss : Statutory remedies against administrative discretion : Appeals to Courts.
Discuss : Statutory remedies against administrative discretion : Appeal to tribunals.
Discuss : Appellate jurisdiction of the supreme court. (Nov-2014)
Discuss : Statutory remedies against administrative discretion : Appeal before the
Supreme Court, SLP
Write note : Special leave to appeal before the supreme court. (Nov-2012)
Write notes : Special Leave Petition as judicial remedy. (Oct-2013)
Discuss : Statutory remedies against administrative discretion : Public Interest
Litigation (PIL).
Discuss : Other remedies against administrative discretion : Council de Etat.
Write notes : Ombudsman and its adequacy in India. (Oct-2013)
Write note : ombudsman. (Nov-2012, Nov-2014)
Write note : Lokpal and Lokayukta. (Nov-2012)
Explain : powers and jurisdiction of Lokpal and Lokayukta. (Nov-2011, Dec-2015)
Discuss : Other remedies against administrative discretion : self-help.
Discuss the characteristics and importance of administrative tribunal. Explain how
administrative tribunals differ from courts. (Nov-2012)
Discuss : Constitutional provisions (and amendments) for administrative
tribunals.
Discuss in detail the concept and kinds of Administrative Tribunals. (Dec-2016)
What do you mean by administrative tribunals. Discuss its nature and
characteristics. Explain the position of administrative tribunals after the decision of
L Chandrakumar -v- union of India. (Nov-2014)
Explain in detail : concept and jurisdiction of administrative tribunals. (Nov-2011)
Explain the constitutions, characteristics and functions of the Administrative tribunals.
Describe importance thereof. (Oct-2013)
Explain : administrative tribunals. (Dec-2015)
Discuss : Case of (i) Sampat Kumar, (ii) L. Chandrakumar

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Go To Contents

Module-3 ANSWERS :
Explain : Controls on the discretionary powers of the administrators. (Nov-2011)
Discuss in detail the meaning and importance of Judicial Review. (Dec-2016)
Write notes : Malafide : Grounds for Judicial Review of Administrative Discretion.
(Oct-2013)
Discuss : Judicial review of administrative discretion
ANSWER :
Refer :

What is Administrative discretion ?
'Discretion' in laymans language means choosing from amongst the various
available alternatives without reference to any predetermined criterion, no matter
how fanciful that choice may be.
But the same term Discretion when qualified by the word administrative has
altogether different overtones. Discretion in this sense means choosing from
amongst the various available alternatives, BUT with reference to the rules of
reason and justice, and NOT according to personal whims. Such exercise of
"administrative discretion" is not to be arbitrary, vague and fanciful, but legal and
regular.
Judicial Review/ control : A notable feature of the Constitution is that it accords a
dignified and crucial position to the judiciary. Well-ordered and well-regulated judicial
machinery had been introduced in the country with the Supreme Court at the apex.
The jurisdiction of the Supreme Court is very broadly worded. It is a general court of
appeal from the High Court, is the ultimate arbiter in all-constitutional matters and
enjoys an advisory jurisdiction. It can hear appears from any court or tribunal in the
country and can issue writ for enforcing the Fundamental Rights.
The judiciary in India has been assigned role to play. It has to dispense justice not
only between one person and another, but also between the state and the citizens.
It interprets the constitution and acts as its protector and guardian by keeping all
authorities legislative, executive, administrative, judicial and quasi-judicial-within
bounds. The judiciary is entitled to scrutinize any governmental action in order to
assess whether or to it conforms to the constitution and the valid laws made there
under.
Need for control/ review of "administrative discretion" :
The problem of administrative discretion is complex. It is true that in any intensive
form of government, the government cannot function without the exercise of some

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discretion by the officials. But it is equally true that absolute discretion is a ruthless
master.
Discretionary power by itself is not pure evil but gives much room for misuse.
Therefore, remedy lies in tightening the procedure and not in abolishing the power
itself.
There is no set pattern of conferring discretionary powers on an executive. Modern
drafting technique uses the words like, adequate, advisable, appropriate,
beneficial, reputable, safe, sufficient, wholesome, deem fit, prejudicial to
safety and security, satisfaction, belief, efficient, public purpose, etc for the
purpose.
It is true that with the exercise of discretion on a case-to-case basis, these vague
generalizations are reduced into more specific moulds, yet the margin of oscillation
is never eliminated. Therefore, the need for judicial correction of unreasonable
exercise of administrative discretion cannot be overemphasized.
Grounds for judicial review :
I) at the stage of delegation of discretion;
II) at the stage of the exercise of discretion.
(I) Control at stage of delegation of discretion : The court exercise control over
delegation of discretionary powers to the administration by adjudicating upon the
constitutionality of the law under which such powers are delegated with reference
to the fundamental rights enunciated in Part III of the Indian Constitution.
Ultra vires delegation : If the law confers vague and wide discretionary power on
any administrative authority, it may be declared ultra vires Article 14, Article 19
and other provisions of the Constitution.
Excessive delegation : In certain situations, the statute though it does not give
discretionary power to the administrative authority to take action, may give
discretionary power to frame rules and regulations affecting the rights of
citizens. The court can control the bestowal of such discretion on the ground of
excessive delegation.
(II) Control at the stage of the exercise of discretion : In India, unlike the USA,
there is no Administrative Procedure Act providing for judicial review on the
exercise of administrative discretion. Therefore, the power of judicial review arises
from the constitutional configuration of courts. Courts in India have always held the
view that judge-proof discretion is a negation of the rule of law. The broad
principles on which the exercise of discretionary powers can be controlled, have
now been judicially settled. These may be conveniently grouped into following
generalizations :
A) Ultra vires exercise of discretion, ie exercise being in excess of the
delegated authority,

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B) Failure to exercise Discretion.


C) Abuse of Discretion (malafide).
D) Doctrine of Legitimate expectation as ground of judicial review
A) Exercise of discretion being in excess of the authority, i.e., ultra vires : The
authority is required to exercise the power within the limits or the statute.
Consequently, if the authority exceeds this limit, its action will be held to be
ultra vires and, therefore, void. As regards the ultra vires exercise of
administrative discretion, the following incidents are pre-eminent :
1) where an authority to whom discretion is committed does not exercise that
discretion himself;
2) where the authority concerned acts under the dictation of another body
and disables itself from exercising a discretion in each individual case;
3) where the authority concerned in exercise of the discretion, does
something which it has been forbidden to do, or does an act which it has been
authorized to do;
4) where the condition precedent to the exercise of its discretion is non-
existent, in which case the authority lacks the jurisdiction to act as all.
B) Failure to exercise Discretion : Under this categorization, courts exercise
judicial control over administrative discretion if the authority has either
abdicated its power or the jurisdictional facts are either non-existent or have
been wrongly determined.
Non-application of mind :- Where an authority is given discretionary powers it
is required to exercise it by applying its mind to the facts and circumstances
of the case in hand. If he does not do so it will be deemed to have failed to
exercise its discretion and its action or decision will be bad.
Acting under Dictation :- Where the authority exercises its discretionary power
under the instructions or dictation from superior authority. It is taken, as non-
exercise of power by the authority and its decision or action is bad. For
example in Commissioner of Police v. Gordhandas the Police Commissioner
empowered to grant license for construction of cinema theatres granted the
license but later cancelled it on the discretion of the Government. The
cancellation order was declared bad as the Police Commissioner did not apply
his mind and acted under the dictation of the Government.
Purtabpore Company Ltd. V. Cane Commissioner of Bihar, (AIR 1970 SC
1896) is a notable case in point. In this case the Cane Commissioner who had
the power to reserve sugarcane areas for the respective sugar factories, at
the dictation of the Chief Minister excluded 99 villages from the area reserved
by him in favor of the appellant-company. The court quashed the exercise of
discretion by the Cane Commissioner on the ground that the abdicated his

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power by exercising it at the dictation of some other authority


C) Abuse of Discretion / acting in bad faith / Malafide : This is an all-embracing
formulation developed by courts in India to control the exercise of discretion by
the administrative authority. Improper exercise of discretion includes everything
that English courts include in unreasonable exercise of discretion and American
courts include in arbitrary and capricious exercise of discretion. There is a great
need of their control so that they may mot be misused. The discretionary power
is required to be used for the purpose for which it has been given. If the
discretionary power is exercised by the authority with bad faith or dishonest
intention, the action is quashed by the court. The discretionary power is required
to be exercised according to law. When the mode of exercising a valid power is
improper or unreasonable there is an abuse of power. In the following conditions
the abuse of the discretionary power is inferred :-
neglecting to take into consideration relevant factors, or taking irrelevant
considerations into account,
The administrative authority exercising the discretionary power is required
to take into account all the relevant facts. If it leaves out relevant
consideration, its action will be invalid.
The decision of the administrative authority is declared void if it is not
based on relevant and germane considerations. The considerations will be
irrelevant if there is no reasonable connection between the facts and the
grounds.
Mixed consideration :- Sometimes the discretionary power is exercised by
the authority on both relevant and irrelevant grounds. In such condition the
court will examine whether or not the exclusion of the irrelevant or non-
existent considerations would have affected the ultimate decision. If the
court is satisfied that the exclusion of the irrelevant considerations would
have affected the decision, the order passed by the authority in the
exercise of the discretionary power will be declared invalid. BUT if the court
is satisfied that the exclusion of the irrelevant considerations would not
have affected the decision, such an order shall be declared valid.
where the discretionary power has been exercised arbitrarily or capriciously or
in malafide manner;
acting unreasonable : The Discretionary power is required to be exercised by
the authority reasonably. Else it will be declared invalid by the court.
Imposing fetters (arbit rules) on the exercise of discretionary powers :- If the
authority imposes fetters (arbit rules) on its discretion by announcing rules of
policy to be applied by it rigidly to all cases coming before it for decision, its
action or decision will be bad. When superior authority/ legislature, in its
wisdom, mandated excercise of discretion, the authority entrusted with the

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discretionary power is required to exercise it after considering the individual


cases and if the authority imposes fetters on its discretion by adopting fixed
rule of policy to be applied rigidly to all cases coming before it, it will be taken
as failure to exercise discretion and its action or decision or order will be bad.
Colourable Exercise of Power :- Where the REAL purpose for grant of
discretionary power is different from the declared, then it is taken as
colourable exercise of the discretionary power and it is declared invalid.
Non-compliance with procedural requirements and principles of natural justice
:- If the procedural requirement laid down in the statute is mandatory and it
is not complied, the exercise of power will be bad.
D) Doctrine of Legitimate expectation as ground of judicial review : Another
basis of judicial review of administrative action is legitimate expectation, which is
developing sharply in recent times. The concept of legitimate expectation in
administrative law has now, undoubtedly, gained sufficient importance. It is
stated that the legitimate expectation is the latest recruit to a long list of
concepts fashioned by the courts for the review of administrative action and this
creation takes its place besides such principles as the rules of natural justice,
unreasonableness, the fiduciary duty of local authorities and in future, perhaps,
the unreasonableness, the proportionality.
Case-Law :
S.R. Venkataraman v. Union of India, (1979 2SCC 491) the appellant, a
Central Government officer, was prematurely retired from service in public
interest under Rule 56(j)(i) on attaining the age of 50 years. Her contention
was that the government did not apply its mind to her service record and that
in the facts and circumstances of the case the discretion vested under Rule
56(j)(I) was not exercised for furtherance of public interest and that the order
was based on extraneous circumstances. The government conceded that there
was nothing on record to justify the order. The Supreme Court, quashing the
order of the government, held that if a discretionary power has been
exercised for an unauthorized purpose, it is generally immaterial whether its
repository was acting in good faith or bad faith. An administrative order based
on a reason or facts that do not exist must be held to be infected with an
abuse of power.
R.D. Shetty v. International Airport Authority (1979 3SCC 459) : In this case
the issue was the awarding of a contract for running a second-class hotelier's
and it was clearly stipulated that the acceptance of the tender would rest with
the Airport Director who would not bind himself to accept any tender and
reserved to himself the right to reject all or any of the tenders received
without assigning any reason. A writ petition was filed by a person who was
himself neither a tenderer nor an hotelier was filed by a person who was

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himself neither a tenderer nor a hotelier. His grievance was that he was in the
same position as the successful tenderer because if an essential condition
could be ignored in the tenderers case why not in the petitioners? The
Supreme Court accepted the plea of locus stand in challenging the
administrative action. Justice P.N. Bhagwati, who delivered the judgment of
the Court, held :
(1) Exercise of discretion is an inseparable part of sound administration
and, therefore, the State which is itself a creature of the Constitution,
cannot shed its limitation at any time in any sphere of State activity.
(2) It is a well-settled rule of administrative law that an executive authority
must be rigorously held to the standards by which it professes its actions to
be judged and it must scrupulously observe those standards on pain of
invalidation of an act in violation of them.
(3) It is indeed unthinkable that in a democracy governed by the rule of law
the executive government or any of its officers should possess arbitrary
powers over the interests of an individual. Every action of the executive
government must be informed with reason and should be free from
arbitrariness. That is the very essence of the rule of law and its bare
minimal requirement.
(4) The government cannot be permitted to say that it will give jobs or
enter into contracts or issue quotas or licenses only in favor of those having
gray hair or belonging to a particular political party or professing a
particular religious faith. The government is still the government when it
acts in the matter of granting largesse and it cannot act arbitrarily. It does
not stand in the same position as a private individual.
(5) The exercise of discretion must not be arbitrary, fanciful and influenced
by extraneous considerations. In matters of discretion the choice must be
dictated by public interest and must not be unprincipled or unreasoned.
In Food Corporation of India v. M/s. Kamdhenu Cattle Seed Industries AIR
1993 SC 1601. The doctrine of legitimate expectation gets assimilated in the
rule of law and operates in our legal system. The Court observed : The mere
reasonable or legitimate expectation of a citizen, in such a situation, may not
by itself be a distinct enforceable right, but failure to consider and give due
weight to it may render the decision arbitrary, and this is how the
requirement of due consideration of a legitimate expectation forms part of the
principle of non-arbitrariness, a necessary concomitant of the rule of law.
Every legitimate expectation is a relevant factor requiring due consideration in
a fair decision-making process.
Conclusion : Thus within the area of administrative discretion the courts have tried to
fly high the flag of Rule of Law which aims at the progressive diminution of

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arbitrariness in the exercise of public power.

Go To Module-3 QUESTIONS
Go To Contents

State different type of Writs and significance thereof. Explain in detail When Writ of
Quo Warranto is useful. HOW it differs from other writs in procedure ? (Oct-2013, Dec-
2015)
Explain : Kinds of writs. (Nov-2011, Dec-2016)
What is writ of habeas corpus? Explain with illustration in which circumstances it can
be filed. (Nov-2012, Nov-2014)
Explain : writ of habeas corpus. (Dec-2015)
ANSWER :
WRIT OF HABEAS CORPUS page-100/135
Habeas Corpus literally means to have the body of. A writ of habeas corpus is
known as "the great and efficacious writ in all manner of illegal confinement", being
a remedy available to the meanest against the mightiest. It is a summons with the
force of a court order; it is addressed to the custodian (a prison official for
example) and demands that a prisoner be taken before the court, and that the
custodian present proof of authority, allowing the court to determine whether the
custodian has lawful authority to detain the prisoner. If the custodian is acting
beyond his or her authority, then the prisoner must be released.
Such a writ can be issued in following example cases :
When the person is detained and not produced before the magistrate within 24
hours
When the person is arrested without any violation of a law.
When a person is arrested under a law which is unconstitutional
When detention is done to harm the person or is malafide.
Habeas corpus writ is called bulwark of individual liberty against arbitrary
detention. The Indian judiciary has dispensed with the traditional doctrine of locus
standi, so that if a detained person is not in a position to file a petition, it can be
moved on his behalf by any other person. The scope of habeas relief has expanded
in recent times by actions of the Indian judiciary.
Habeas corpus writ is applicable to preventive detention also. This writ can be
issued against both public authorities as well as individuals. The Indian judiciary, in
a catena of cases, has effectively resorted to the writ of habeas corpus to secure
release of a person from illegal detention.

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Examples :
In October 2009, the Karnataka High Court heard a habeas corpus petition filed
by the parents of a girl who married a Muslim boy from Kannur district and was
allegedly confined in a madrasa in Malapuram town
The habeas writ was used in the Rajan case, a student victim of torture in local
police custody during the nationwide Emergency in India in 1976.
On 12 March 2014, Subrata Roy's counsel approached the Chief Justice moving a
habeas corpus petition. It was also filed by the Panthers Party to protest the
imprisonment of Anna Hazare, a social activist.
Habeas corpus has certain limitations. Though a writ of right, it is not a writ of
course.[Note 2] It is technically only a procedural remedy; it is a guarantee against
any detention that is forbidden by law, but it does not necessarily protect other
rights, such as the entitlement to a fair trial.
WRIT OF MANDAMUS page-101/135
Intro :
The Latin word mandamus means "we order". Writ of Mandamus is a command
(in the form of an Order) directed to the inferior court, tribunal, board,
corporation or any administrative authority or a person requiring the
performance of a specific duty fixed by law or associated with the office occupied
by the person. It is a type of extra-ordinary remedy available to the appellants
to compel the authority to perform a duty cast upon them.
The direction can be given by the Supreme Court or the High Court of a state.
The court can direct to do or not to do a specific act.
Writ of mandamus can NOT be issued in following cases :
Writ cannot be issued against a private individual
It cannot be issued in matters where the authority is using his discretionary
powers of the public authority.
eg Writ cannot be issued to the Government for the enhancement of dearness
allowance as it is a discretionary power of the Government.
Writ should not lie in a civil liability, which should be solved in civil courts by way
of civil suits.
Writ cannot be issued to a private medical college
Writ cannot be issued to any legislative body to enact a particular Act.
Writ cannot be issued against the President or Governor or a state
Writ cannot be issued when alternative remedies are available.
The sine qua non for mandamus is the existence of a statutory public duty
incumbent upon the person or body against whom the mandamus is sought. There

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must equally co-exist a corresponding right in the petitioner entitling him to claim
the enforcement of such public duty. These two preconditions form the foundation
for the issue of mandamus.
Grounds for Writ of Mandamus : The Writ can granted against a public authority if :
Acted against the law
Exceeded his limits of power
Acted with mala fides
Did not apply his mind
Abused his discretionary powers
Did not take into account relevant consideration
Has taken into account irrelevant consideration
Limitations :
The primary scope and function of mandamus is to "command" and "execute"
rather than to "enquire" and "adjudicate". It cannot be issued to change the
decision of a body so as to suit the petitioner. Obligations which are not of
statutory nature cannot be enforced by mandamus.
The writ petition is not maintainable when a remedy provided for under the Code
of Civil Procedure is available. For example, the High Court cannot entertain writ
petitions for mandamus to the Government who fails to deposit and pay in the
requisite time an enhanced compensation account as ordered by a lower Court.
The petitioners in this case would be directed to approach the executing Court
for appropriate relief.
WRIT OF PROHIBITION page-104/135
A writ of prohibition may be directed by any court of record (i.e., higher than a
misdemeanor court) toward any official body, whether a court or central/ state/
local Government, that is within the court's jurisdiction.
It is issued primarily to prevent such inferior court/ bodies from exceeding their
jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain
a Judge from hearing a case in which he is personally interested. Inferior courts
include tribunals, commissions, magistrates and officers who exercise judicial
powers, affecting the property or rights of the citizen and acting in a summary way
or in a new course different from the common law.
These Writs may be issued as alternative or peremptory.
An alternative Writ directs the recipient to immediately act, or desist, and Show
Cause why the directive should not be made permanent.
A peremptory Writ directs the recipient to immediately act, or desist, and
return the Writ, with certification of its compliance, within a certain time.
The difference between writs of prohibition and certiorari, was explained by Justice

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Venkatarama Ayyar of the Supreme Court in the following terms :


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
superior 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 superior court for a writ of certiorari
and on that an order will be made quashing the decision on the ground of want
of jurisdiction.
The writ is issued in both cases where there is excess of jurisdiction and where
there is absence of jurisdiction (S. Govind Menon vs. union of India, AIR 1967 SC
1274).
There may be a case where proceeding of an inferior court is partly within and
partly without jurisdiction. In those cases writ of prohibition will lie only against
acts which are in excess/ without jurisdiction.
The writ can be issued only when the proceedings are pending in a court. If the
proceeding has matured into decision, writ will not lie.
It is well established that the writ of prohibition lies only against ANY body
exercising public functions of a judicial or quasi- judicial character and cannot in
the nature of things be utilized to restrain legislative powers.
WRIT OF CERTIORARI page-106/135, 109/135
Certiorari is the present passive infinitive of the Latin verb certioro, certiorare ("to
inform, apprise, show"). Thus, certiorari translates 'to be informed, apprised or
shown'.
Certiorari, often abbreviated as cert, is a writ (order) of a higher court to a lower
court to send all the documents in a case to it so the higher court can review the
lower courts decision. Appellate review of a case that is granted by the issuance of
certiorari is sometimes called an appeal, although such review is at the discretion
of the appellate court. A party, the petitioner, files a petition for certiorari with the
appellate court after a judgment has been rendered against him in the inferior
court.
However, unlike a writ of prohibition, superior courts issue writs of certiorari to
review decisions which inferior courts have already made. The writ of prohibition is
the counterpart of the writ to certiorari which too is issued against the action of an
inferior court. The difference between the two was explained by Justice
Venkatarama Ayyar of the Supreme Court in the following terms :
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
superior court for a writ of prohibition and on that an order will issue forbidding

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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 superior court for a writ of certiorari
and on that an order will be made quashing the decision on the ground of want
of jurisdiction.
Grounds for issuance of Certiorari : Writ of certiorari can be issued on any of the
following grounds :
(a) Want or excess of jurisdiction
(b) Violation of procedure required to be followed.
(c) Violation of principle of natural justice.
(d) Error of law apparent on the face of the record.
Conclusion : Certiorari is a supervisory writ, serving to keep "all inferior
jurisdictions within the bounds of their authority, thereby protecting the liberty of
subjects, by speedy and summary interposition"
WRIT OF QUO-WARRANTO page-112/135
The meaning of the term Quo Warranto is by what authority. The writ of quo
warranto may be issued against a person holding a public office or governmental
privilege. The issue of summon is followed by legal proceedings, during which an
individuals right to hold an office or governmental privilege is challenged.
The writ requires the concerned person to explain to the Court by what authority
he holds the office. If a person has usurped a public office, the Court may direct
him not to carry out any activities in the office or may announce the office to be
vacant. The writ is issued by the Court after reviewing the circumstances of the
case.
There are a few conditions which must be fulfilled for the grant of the writ of quo
warranto in India :
The concerned office must be a government unit or public office which performs
public duties. Examples of such office members are advocate general, university
officials, members of a municipal board.
The public office must have a real existence. It should be permanent and cannot
be terminated.
A person against whom the writ of quo warranto is issued must have the real
possession of the public office.
The writ shall be issued only when the public office is held by a particular person
in an illegal manner
The person initiating proceedings of writ of qua warranto need not necessarily have
a direct or personal interest as distinct from the interest which he may have in
common with the public. It is open to a private individual to bring it to the notice of

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the Court that a person who is disqualified to hold an office is still holding it. This
includes a voter or a member of any of the local bodies. A member of the
Legislative Assembly of a State can apply for a writ of quo warranto against the
Speaker. He has a right to know by what authority the Speaker of the body
functions as such.
In this connection the following observations of the Nagpur High Court in C.D.
Karake v. T.L. Shevde may also be noted :
In proceedings for a writ of quo warranto, the applicant does not seek to enforce
any right of his as such, nor does he complain of any non-performance of duty to
him. What is in question is the right of the non-applicant to hold the office and
order that is passed is an order outing him from that office.

Go To Module-3 QUESTIONS
Go To Contents

Explain : difference between Art-226 and 227 of the constitution of India. (Nov-2011)
ANSWER :
page-105-120 / 271
CONSTITUTIONAL MODES OF JUDICIAL REVIEW :
Both Art-226 and Art-227 are constitutional modes of judicial review. The judicial
review available under Articles 32, 136, 226, 227 can NOT be excluded by the
finality clause contained in the statute and expressed in any languages.
Any statute or ordinary laws cannot take away the jurisdiction of writ Courts under
article 32, 136, 226 and 227 as the Constitution of India provides them.
Any ordinary law cannot bar the jurisdiction of the Supreme Court under Article 32
and 136 and of the High Court under Articles 226 and 227.
In Indra Nehru Gandhi v. Raj Narain, the validity of Clause (4) of Article 329 A
inserted by the Constitution (39 the Amendment ) Act, 1975 was challenged on the
ground that it destroyed the basic structure of the Constitution.
Issue : The said Clause (4) provided that notwithstanding any Court order
declaring the election of the Prime Minister or the Speaker of Parliament to be
void, it would continue to be void in all respects and any such order and any
finding on which such order was based would be deemed always to have been
void and of no effect. This clause empowered Parliament to establish by law
some authority or body for deciding the dispute relating to the election of the
Prime Minister or Speaker. It provided that the decision of such authority or
body could not be challenged before the Court.
Held : This clause was declared unconstitutional and void as being violation of

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free and fair election, democracy and rule of law, which are parts of the basic
structure of the Constitution.
In this case judicial review, democracy, free and fair election and rule of law
were included in the list of the basic features of the Constitution. Consequently
any Constitutional amendment, which takes away, any of them will be
unconstitutional and therefore void.
Art-226 :
The constitution gives wide powers to all High Courts to ensure that injustice is not
tolerated in any sphere.
Definition Art 226 :
1. Notwithstanding anything in article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue
to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.
Discussion :
The judicial control of administrative action provides a fundamental safeguard
against the abuse of power. Since our Constitution was built upon the deep
foundations of rule of law, the framers of the Constitution made sincere efforts
to incorporate certain Articles in the Constitution to enable the courts to exercise
effective control over administrative action.
Under article 226 concurrent powers have been conferred on the respective High
Courts for the enforcement of fundamental rights or any other legal rights. It
empowers every High Court to issue to any person or authority including any
Government, in relation to which it exercises jurisdictions, directions, orders or
writs including writs of habeas corpus, mandamus, prohibition, quo warranto and
certiorari. In a writ petition, High Court cannot go into the merits of the
controversy. For example, in matters of retaining or pulling down a building the
decision is not to be taken by the court as to whether or not it requires to be
pulled down and a new building erected in its place.
It is important to note that the power is not only to enforce fundamental rights
but also for any other purpose. This makes its powers even wider than Supreme
Court. Here, any other purpose means any legal right of legal duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held
that the power of judiciary over legislative action vested in a High Court is a
basic feature of the constitution and cannot be removed through constitutional
amendment.

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Types of Writs : Under Article 226, High Courts in India are empowered to issue 6
specific types of writs, viz. the writ of Certiorari, Prohibition, Mandamus, Habeas
Corpus and Quo Warranto.
Locus Standi : Who can apply :
In general, the person whose constitutional right or legal right has been
infringed has the right to apply. However, due to judicial activism, the
"doctrine of sufficient interest" has originated. According to this, any person
who is even remotely affected can petition the High Court. It also allows
public spirited persons to file a writ petition for any person or class if that
person or class is not able to do so himself due to poverty or any other
reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an
unregistered trade union has right to file a petition for redressal of a
common grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC
held that an advocate of Cal. High Court has sufficient interest in making a
public place like a railway station a safe place and so she has right to
demand compensation for the bangladeshi woman gang raped by railway
employees.
Scope of the High courts Jurisdiction under Article 226 :
The jurisdiction of the High Court under Art 226 is very vast and almost without
any substantive limits barring those such as territorial limitations.
Although the jurisdiction of the High Court is so vast and limitless, the courts
have imposed certain limits in their jurisdiction in order to be able to cope with
the volume of litigation and also to avoid dealing with questions, which are not
capable of being answered judicially. There are three types of limitations:
Those arising from judicial policy;
Those which are procedural and
Those because of the petitioners conduct.
The Supreme Court has held that the extra ordinary jurisdiction should be
exercised only in exceptional circumstances.
It was held that the High Court was not justified in going into question of
contractual obligations in a writ petition. It was held that the jurisdiction under
Art 226 should be used most sparingly for quashing criminal proceedings. The
High Court should interfere only in extreme cases where charges ex facie do not
constitute offence under the Terrorist and Destructive Activities Act (TADA) It
should not quash the proceedings where the application of the Act is a debatable
issue.
Case-law :

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In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226
confers wide powers to remedy injustice where ever it is found. Art 226 says,
"...or any of them...", which means that it is not limited only the mentioned
types of writs. It can issue orders orders of any kind that the situation may
require. Thus, it makes the scope of Art 226 a lot wider than art 32.
1. In the exercise of their discretionary jurisdiction, the High Court does not, as
a Court of appeal or of revision, correct mere errors of law or of facts.
2. The resort to the said jurisdiction is not permitted if an alternative remedy for
relief which may be obtained by suit or other mode is prescribed by statute.
Where it is open to the aggrieved person to move another tribunal or even itself
in another jurisdiction for obtaining redress in the manner provided in the
statute, the Court does not, by exercising the writ jurisdiction permit the
machinery created by the statute to be bypassed.
However, the existence of an adequate alternative legal remedy is not a bar
to the invocation of the High Courts jurisdiction under Article 226 when relief
is sought in case of an infringement of a fundamental right or a tribunal acting
ultra-vires to its jurisdiction or when the principles of natural justice have not
been followed.
3. It does not generally enter upon the determination of questions which
demand an elaborate examination of evidence to establish the right to enforce
which the writ is claimed.
4. It does not interfere on the merits with the determination of the issues made
by the authority invested with statutory power, particularly when they relate to
matters calling for judicial intervention, such as, where the determination is
malafide or is prompted by extraneous considerations or is made in
contravention of the principles of natural justice or any constitutional provision.
5. The Court may also intervene where :
a. the authority acting under the concerned law does not have the requisite
authority or the order which is purported to have been passed under the law
is not warranted or is in breach of the provisions of the concerned law or the
person against whom the action is taken is not the person against whom the
order is directed;
b. where the authority has exceeded its powers or jurisdiction or has failed or
refused to exercise jurisdiction vested in it;
c. where the authority has not applied its mind at all or has exercised its
power dishonestly or for an improper purpose;
6. Where the Court cannot grant a final relief, the Court does not entertain a
petition only for giving interim relief. If the Court is of the opinion that there is
no other convenient or efficacious remedy open to the petitioner, it will proceed

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to investigate the case on its merits and if the Court finds that there is an
infringement of the petitioners legal rights, it will grant final relief but will not
dispose off the petition only by granting interim relief.
7. Where the satisfaction of the authority is subjective, the Court intervenes
when the authority has acted under the dictates of another body or when the
conclusion is arrived at by the application of a wrong test or misconstruction of a
statute or it is not based on material which is of rationally probative value and
relevant to the subject matter in respect of which the authority is to satisfy
itself. If again the satisfaction is arrived at by taking into consideration material
which the authority properly could not, or by omitting to consider matter which it
ought to have, the Court interferes with the resultant order.
8. In proper cases the Court also intervenes when some legal or fundamental
right of the individual is seriously threatened, though not actually invaded.
9. High Courts ordinarily do not decide questions of fact and is left upon the
statutory mechanism to adjudicate such matters. It is adjudicated in the rarest
of rare cases.
Court Martial and art 226 :
In a significant case, Delhi High Court held that section 18 of India Army Act
is not beyond the scope of High Court. While High Court may not interfere in
the sentence awarded in a court martial, such an order cannot be arbitrary
and mala fide. Thus, it is open to judicial review.
Dispute between private parties - No Jurisdiction :
In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the
extraordinary jurisdiction of High Court cannot be exercised in the private
party disputes relating to property rights unless there is a violation of
statutory rights by statutory authorities.
Natural Justice :
Natural Justice is not exclusively the principle of administrative law. The
courts are also bound by the same principle. Every administrative action must
be supported by reasons. The reasons must be recorded to ensure that there
is no arbitrariness.
Territorial extent of writ jurisdiction under Art-226 :
Art 226 imposes two limits on HC's writ. First, it can run only in the territorial
jurisdiction of the High Court and secondly the person or authority must lie in
that jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held
that Madras High Court cannot issue a writ to ECI because it is based in New
Delhi and so is out of its jurisdiction. The law commission recommended that
these are serious limitations and they defeat the very purpose of this article.

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So it was amended by 15th amendment in 1963. High Court can now issue a
writ even to a central authority if the cause of action in whole or part arises in
its jurisdiction.
Art-226 is a discretionary Remedy - Not to be exercised if alternate remedy is
available :
The remedy available in 226 is a discretionary remedy and the High Court has
the discretion to accept or refuse a petition. In general, if a remedy is
available elsewhere, writs under 226 are discouraged. However, this does not
mean that any remedy available can be a ground for not entertaining the
petition under 226. The remedy must be effective and sufficient.
In the case of Vellaswamy v IG Police, Madras 1982, SC held that the
remedy under Police Rules of TN was not sufficient and so High Court was
wrong in dismissing the petition.
Effect of delay : Remedy under 226 should be sought within a reasonable time.
However, High Court may accept a petition is there is a reasonable cause for delay
in seeking justice. Poverty has been held to be reasonable ground.
CONCLUSION :
The prerogative powers of writ jurisdiction conferred by the constitution for
judicial review of administrative action is undoubtedly discretionary and yet
unbounded in its limits. The discretion however should be exercised on sound
legal principles. In this respect it is important to emphasise that the absence
of arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based.
Compare Art-136 and Art-226 :
As regard the points of difference between the writ jurisdiction of the High Courts
under Article 226 any appellate jurisdiction of the Supreme Court under Article 136,
it can be said that a high court can issue a writ to any authority whether quasi-
jurisdiction or administrative; whereas the supreme Court under Article 136 can
hear appeal only from a court or tribunal. In this respect writ jurisdiction of a High
Court is broader than the appellate scope of the Supreme Court under Article 136.
But from another point of view the scope of Article 226 is narrower than Article
136. The Supreme Court can interfere with a decision of a tribunal on wider form
than the High Court in its writ jurisdiction, HC jurisdiction is not so flexible, it does
not enter into questions of facts while there is no restriction on the powers of the
Supreme Court under Art-136.
Jurisdiction under Art 227 :
The jurisdiction under Art 227 is narrower than that under Art 226 because while
under art 226, the High Court can quash any administrative action, under Art 227,
it can act only in respect of judicial or at the most quasi-judicial actions.

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By giving wider meaning to the word tribunal in this Article as well as in Art 136,
the courts have included various administrative authorities within the power of
superintendence.
Exclusion of Court Martial Proceedings : Clause (4) of art 227, however, excludes
the tribunals constituted by or under any law relating to the armed forces from the
supervisory jurisdictions of the High Courts. ie The court martial proceedings under
the Military law are not within the power of superintendence of the High Court,
though they are subject to judicial review under Art 226.
A petition under Art 227 is not maintainable if there is an adequate alternative
remedy. eg A petition under Art 227 to the High Court filed under the Consumers
protection act dismissing a petition for non-appearance would not lie since the
statutory remedy of appealing under sec. 15 or applying for revision under sec. 17
to the State Commission under that Act was available.
Distinction between provisions under Art-226 and Art-227 :
Remedy against the administrative tribunal :
According to Article 227 (1) as it existed before the 42nd amendment of the
Constitution every High Court had the power of superintendence over all Courts
and tribunals within its territorial jurisdiction except those which are constituted
under a law relating to armed forces. These powers were withdrawn by 42nd
Amendment.
However, under Forty-forth Amendment act of the Constitution the jurisdiction of
the High Court over administrative tribunals has been restored and accordingly
the power of superintendence and supervision of the High Courts over them
exists as before.
The high Courts were thus empowered to exercise broad powers of
superintendence over Courts and tribunals. The power extended not only to
administrative but also even to judicial superintendence over judicial or quasi-
judicial bodies.
The power of the High Court under Article 226 differed from power of
superintendence exercised by it under Article 227
Firstly, where it could quash orders of inferior court or tribunal, but the court
under Article 226 may quash the order as well as issue further directions in the
matter.
Secondly, Under Article 227 the power of interference was limited to seeing that
the tribunal function within the limits of its authority .
Thirdly, the power under Article 227 will only be exercised where the party
affected moves the court, while the superintending power under Article 227
could be exercised at the instance of High Court itself.
In exercising the supervisory power under Article 227, the High Court does not act

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as an appellate tribunal. It did not use to review to reweigh the evidence upon
which the determination of the inferior tribunal purported to be based.

Go To Module-3 QUESTIONS
Go To Contents

Write note : difference between powers under Art-32 and 226. (Nov-2012, Dec-2015)
Write notes : Distinction between writ jurisdiction of High Courts and the Supreme
Court. (Oct-2013)
Explain the power of high courts to issue writs under Art-226 of the constitution of
India. How these powers differ from that of supreme court under Art-32? (Nov-2014)
ANSWER :
Refer :
page-96 / 135
page-105-120 / 271
CONSTITUTIONAL MODES OF JUDICIAL REVIEW :
The judicial review available under article 32, 136 226 and 227 is taken as
Constitutional mode of judicial review, which can NOT be excluded by the finality
clause contained in the statute and expressed in any languages.
Any statute or ordinary laws cannot take away the jurisdiction of writ Courts under
article 32, 136, 226 and 227 as the Constitution of India provides them.
Any ordinary law cannot bar the jurisdiction of the Supreme Court under Article 32
and 136 and of the High Court under Articles 226 and 227.
Case-law :
In Keshava Nanda Bharti v. State of Kerala, ( A.I.R. 1973 S.C. 1461 ) the
Supreme Court has held that the Parliament has power to amend the
Constitution but it cannot destroy or abrogate the basic structure or framework
of the Constitution. Article 368 does not enable Parliament of abrogate or take
away Fundamental right or to completely alter the fundamental features of the
Constitution so as to destroy its identity.
In Indra Nehru Gandhi v. Raj Narain, the validity of Clause (4) of Article 329 A
inserted by the Constitution (39 the Amendment ) Act, 1975 was challenged on
the ground that it destroyed the basic structure of the Constitution.
Issue : The said Clause (4) provided that notwithstanding any Court order
declaring the election of the Prime Minister or the Speaker of Parliament to be
void, it would continue to be void in all respects and any such order and any
finding on which such order was based would be deemed always to have been

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void and of no effect. This clause empowered Parliament to establish by law


some authority or body for deciding the dispute relating to the election of the
Prime Minister or Speaker. It provided that the decision of such authority or
body could not be challenged before the Court.
Held : This clause was declared unconstitutional and void as being violation of
free and fair election, democracy and rule of law, which are parts of the basic
structure of the Constitution.
In this case judicial review, democracy, free and fair election and rule of law
were included in the list of the basic features of the Constitution.
Consequently any Constitutional amendment, which takes away, any of them
will be unconstitutional and therefore void.
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION :
The judicial control of administrative action provides a fundamental safeguard
against the abuse of power. Since our Constitution was built upon the deep
foundations of rule of law, the framers of the Constitution made sincere efforts to
incorporate certain Articles in the Constitution to enable the courts to exercise
effective control over administrative action.
Judicial control of administrative action is due to following articles in the
Constitution of India :
Art-32 : Under article 32, the Supreme Court has been empowered to enforce
fundamental rights guaranteed under Chapter III of the Constitution. Article 32
of the Constitution provides remedies by way of writs in this country. The
Supreme Court has, under Article 32(2) power to issue appropriate directions, or
orders or writs, including writs in the nature of habeas corpus, certiorari,
mandamus, prohibition and quo- warranto. The court can issue not only a writ
but can also make any order or give any direction, which it may consider
appropriate in the circumstances. It cannot turn down the petition simply on the
ground that the proper writ or direction has not been prayed for.
Art-226 : Under article 226 concurrent powers have been conferred on the
respective High Courts for the enforcement of fundamental rights or any other
legal rights. It empowers every High Court to issue to any person or authority
including any Government, in relation to which it exercises jurisdictions,
directions, orders or writs including writs of habeas corpus, mandamus,
prohibition, quo warranto and certiorari. In a writ petition, High Court cannot go
into the merits of the controversy. For example, in matters of retaining or pulling
down a building the decision is not to be taken by the court as to whether or not
it requires to be pulled down and a new building erected in its place.
Discussion on Art-32 :
Fundamental nature of right to move SC :

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The right to move the Supreme Court in itself is a guaranteed right, and
Gajendragadkar, J., has assessed the significance of this in the following manner
:
The fundamental right to move this Court can therefore be appropriately
described as the cornerstone of the democratic edifice raised by the
Constitution. That is why it is natural that this Court should in the words of
Patanjali Sastri, J., regard itself as the protector and guarantor of
fundamental rights and should declare that it cannot consistently with the
responsibility laid upon it, refuse to entertain applications seeking protection
against infringement of such rights.
Since Article 32 is itself fundamental right, it cannot be whittled down by a
legislation. It can be invoked even where an administrative action has been
declared as final by the statute.
WHO can complain ? Under Article 32 of the Constitution the following person may
complain of the infraction of any of the fundamental rights :
Any person including corporate bodies who complains of the infraction of any of
the fundamental rights guaranteed by the Constitution is at liberty to move the
Supreme Court except where the languages of the provision or the nature of the
right implies the inference that they are applicable only to natural person.
The right that could be enforced under article 32 must ordinarily be the rights of
the petitioner himself who complains of the infraction of such rights and
approaches the Court for relief. An exception is as held in the Calcutta Gas Case,
(AIR 1962 SC 1044) that in case of habeas corpus not only the man who is or
detained in confinement but any person provided he is not an absolute stranger,
can institute proceeding to obtain a writ of habeas corpus for the purpose of
liberation.
The Constitution of India assigns to the Supreme Court and the High Courts the
role of the custodian and guarantor of fundamental rights. Therefore, where a
fundamental right is involved, the courts consider it to be their duty to provide
relief and remedy to the aggrieved person. However, in matters other than the
fundamental rights, generally the jurisdiction of the courts to grant relief is
considered to be discretionary. The discretion is, however, governed by the
broad and fundamental principles, which apply to the writs in England.
Case-laws :
A petition under Art 32 may be rejected on the ground of inordinate delay.
However, a writ petition made after 12 years by a person belonging to lower
echelons of service against the Department which had not counted his service
in the officiating capacity, was entertained because the Department had not
given reply to his representations.
It was held in one of the decided case (A.I.R 1964 S.C. 1013; Supreme Court

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Employees that a petition under Art 32 would be barred by res judicata if a


petition on the same cause of action filed before the High Court was earlier
rejected.
In Welfare Association verses union of India A.I.R 1990 334 The Court went
further and said that the principle of res judicata did not apply to successive
writ petitions in the Supreme Court and the High Court under Arts 32 and 226
respectively.
However, the Court also observed that a petition based on fresh or
additional grounds would not be barred by res judicata.
A petition under Artic 32 will not lie against the final order of the Supreme
Court under art 32 of the constitution. It was held that a petition would not lie
under Art 32 challenging the correctness of an order of the Supreme Court
passed on a special leave petition under Art 136 of the Constitution setting
aside the award of enhanced solarium and interest under the land acquisition
Act, 1894.
Existence of alternative remedies :
When statutory remedies are available for determining the disputed questions of
fact or law, such questions cannot be raised through a petition under Art 32.
The Supreme Court would not undertake a fact-finding enquiry in the
proceedings under Art 32. If the facts are disputed, they must be sorted out at
the appropriate forum.
In Ujjam Bai v. State of UP ( AIR 1962 SC 1621) the Supreme Court held that a
petition under Art 32 could not impugned error of law or fact committed in the
exercise of the jurisdiction conferred on an authority by law.
The Court here made a distinction between acts, which were ultra vires, or in
violation of the principles of natural justice and those, which were erroneous
though within jurisdiction. While the former could be impugned, the latter
could not be impugned in a writ petition under art 32.
This dictum was, however, narrowed down by subsequent decisions. It was
held that where an error of law or fact committed by a tribunal resulted in
violation of a fundamental right; a petition under Art 32 would be
maintainable.
The fact that the right to move the Supreme Court for the enforcement of
fundamental rights under Art 32 is a fundamental right should not bind us to the
reality that such a right in order to be meaningful must be used economically for
the protection of the fundamental rights.
However, in recent years, with the expansion of the scope of art 21 of the
Constitution and the growth of public interest litigation, the threshold enquiry
regarding the violation of fundamental rights has become rare. Article 32 has

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almost become a site for public interest litigation where fundamental rights of
the people are agitated. It is under this jurisdiction that the human rights
jurisprudence and environmental jurisprudence have developed.
The Court has given such expansive interpretation of art 21 of the
Constitution that the question, which seemed to be alien (few decades ago) to
Art 32, became integral part of it. The right to life and personal liberty came
to comprehend such diverse aspects of human freedom such as the right to
environment, or the right to gender justice or the right to good governance,
etc became matters involving fundamental rights. Since the rights to live
guaranteed by Art 21 included the right to live with dignity the right to
unpolluted environmental jurisprudence has emerged.
With the growth of the public interest litigation Art 32 has become an important
site for the vindication of various group human rights. The Court has even
incorporated some of the directive principles of state policy within the compass
of the fundamental rights. For example, it declared that the right to primary
education was a fundamental right.
Compare Art-32 and Art-136 :
The ambit of Supreme Courts jurisdiction under Article 136 is in some respects
broader than that under Article 32. Article 32 is confined to the enforcement of
fundamental rights only whereas Article 136 is not so. The appellate jurisdiction
of the court gives more scope to the Court to intervene with adjudicatory bodies
and provides grounds of judicial control.
But from another point of view the jurisdiction of the Court under Article 136 is
narrower than that under Article 32. Article 136 is available only in cases of
tribunals while Article 32 can be invoked when any authority whatsoever
infringes a fundamental right.
It has been found that the Court has been extremely reluctant to intervene with
quasi-judicial bodies.
Art-226 :
<read from elsewhere in this doc>
Compare Art-32 and Art-226 :
Similarities : Power of issuing writs comes under original jurisdiction (to hear the
matter at first instance) of both Supreme Court and High Courts. An aggrieved
person has option to move any of them.
The jurisdictions under Art 32 and 226 are concurrent and independent of each
other so far as the fundamental rights are concerned. A person has a choice of
remedies. He may move either the Supreme Court under Art 32 or an
appropriate High Court under Art 226.
Differences :

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While Supreme Court has power to issue writs via article 32, High Courts have
this power via article 226.
While Supreme Court has power to issue writs for enforcement of ONLY
Fundamental rights, High Courts can issue writs for enforcement of fundamental
rights as well as any other matter also.
Article 226 empowers the High Courts to issue writs for the enforcement of
any of the fundamental rights or for any other purpose. It has been held that
the words for any other purpose mean for the enforcement of any statutory
or common law rights.
Thus, the jurisdiction of the High Courts under Art 226 is wider than that of
the Supreme Court under Art 32.
During emergency, SC can not grant relief on suspension of FR. However, HCs
will continue to grant relief.
Supreme Court cannot refuse to exercise its writ jurisdiction mainly because
article 32 itself is a fundamental right and supreme court is guarantor or
defender of fundamental rights.
However, for high courts, exercising the power to issue writs is discretionary.
Supreme Court can issue a writ against any person or authority within the
territory of India while high court can issue such writ under its own territorial
jurisdiction.
Thus, High courts writ jurisdiction is narrower in terms of territorial extent.

ARTICLE 32 ARTICLE 226

Fundamental Right Constitutional Right

Can Be Suspended During Cannot Be Suspended


Emergency

Limited Scope (fundamental Wider Scope (FR + Other Rights)


Rights Only)

Wider Jurisdiction (All Over India) Limited Jurisdiction (Concerned


State Only)

If petitioners grievance is that a right other than a fundamental right is violated,


he will have to move the High Court having jurisdiction. And thereafter, he may
choose to appeal to the Supreme Court against the decision of the High Court.
After being unsuccessful in the High Court, he cannot approach the Supreme
Court under Art 32 for the same cause of action because as said earlier, such a
petition would be barred by res judicata.
Note that, having failed in the Supreme Court in a petition filed under Art 32, the

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petitioner cannot take another chance by filing a petition under Art 226 in the
High Court having jurisdiction over his matter because such a petition would also
be barred by res judicata.
The High Courts jurisdiction in respect of other purposes is discretionary. The
courts have laid down rules in accordance with which such discretion is to be
exercised. The jurisdiction of the High Court under Art 226 cannot be invoked if :
The petition is barred by res jusicata;
If there is an alternative and equally efficacious remedy available and which
has not been exhausted;
If the petition raised questions of facts which are disputed; and
If the petition has been made after an inordinate delay.

Go To Module-3 QUESTIONS
Go To Contents

Discuss : Statutory remedies against administrative discretion : Civil Suits.


ANSWER :

Go To Module-3 QUESTIONS
Go To Contents

Discuss : Statutory remedies against administrative discretion : Appeals to Courts.


ANSWER :

Go To Module-3 QUESTIONS
Go To Contents

Discuss : Statutory remedies against administrative discretion : Appeal to tribunals.


ANSWER :

Go To Module-3 QUESTIONS
Go To Contents

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Discuss : Appellate jurisdiction of the supreme court. (Nov-2014)


Discuss : Statutory remedies against administrative discretion : Appeal before the
Supreme Court, SLP
Write note : Special leave to appeal before the supreme court. (Nov-2012)
Write notes : Special Leave Petition as judicial remedy. (Oct-2013)
ANSWER :
page- 115/135
page-114/271
CONSTITUTIONAL MODES OF JUDICIAL REVIEW :
The judicial review available under article 32, 136 226 and 227 is taken as
Constitutional mode of judicial review, i.e. the judicial review available under
Articles 32, 136, 226, 227 can NOT be excluded by the finality clause contained in
the statute and expressed in any languages.
Any statute or ordinary laws cannot take away the jurisdiction of writ Courts under
article 32, 136, 226 and 227 as the Constitution of India provides them.
Any ordinary law cannot bar the jurisdiction of the Supreme Court under Article 32
and 136 and of the High Court under Articles 226 and 227.
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION :
The judicial control of administrative action provides a fundamental safeguard
against the abuse of power. Since our Constitution was built upon the deep
foundations of rule of law, the framers of the Constitution made sincere efforts to
incorporate certain Articles in the Constitution to enable the courts to exercise
effective control over administrative action.
Under Article 136 the Supreme Court has been further empowered, in its
discretion, to grant special leave to appeal from any judgment, decree,
determination, sentence or order by any Court or tribunal in India. Article 136
conferred extraordinary powers on the Supreme Court to review all such
administrative decisions, which are taken by the administrative authority in quasi-
judicial capacity.
Outline of SC jurisdiction :
(1) Original Jurisdiction (Art-32, 131, 143)
(A) Art-32 writ jurisdiction fundamental rights
(B) Art-131 disputes between center-state
(C) Art-143 - Advisory Jurisdiction - reference from President
(2) Appellate Jurisdiction (Art-132-137)
(A) Art-132 - Appellate Jurisdiction Constitutional

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(B) Art-133 - Appellate Jurisdiction - Civil


(C) Art-134 - Appellate Jurisdiction - Criminal
(D) Art-136 - Special Leave to appeal by SC
(E) Art-137 - Power to review its judgement
Detailed discussion on Appellate Jurisdiction (Art-132-137) :-
(A) Art 132 Appellate Jurisdiction - Constitutional :
The SC is the highest court of appeal in the country. The writs and the decrees
of the SC run throughout the country. A person can appeal to the SC under its
appellate jurisdiction if he is not satisfied with the decision of the lower courts.
Art 132(1) allows an appeal to be filed in the SC if three conditions are satisfied:
1. The order appealed must be against the judgement of a high court in civil,
criminal, or other proceedings.
2. The case involves a question of law as to the interpretation of the
constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.
Krishnaswamy vs Governer General in Council 1947 - If there is a difference of
opinion among High Courts and if there is no direct decision by SC on that point,
it is a substantial question of law that can permit appeal in SC.
(B) Art 133 Appellate Jurisdiction - Civil :
An appeal shall lie to SC from any judgement, decree, or a final order in civil
proceedings of a High Court only if the High Court certifies under 134A that
1. the case involves an substantial question of law of general importance.
2. in the opinion of the High Court, the said question needs to be decided by
the SC.
Madan Gopal vs State of Orrisa 1956 - The pecuniary value of a dispute is
immaterial. There may be matters which cannot be measured in money but the
decision could have a far reaching effect and such cases can be permitted to be
appealed in SC.
(C) Art 134 Appellate Jurisdiction - Criminal :
An appeal shall lie to SC from any judgement, decree, or a final order in criminal
proceedings of a High Court in two ways - with or without a certificate from High
Court.
1. Without Certificate
a) If the High Court, on appeal, has reversed an order of acquittal of an
accused and sentenced him to death
b) if the High Court has withdrawn a case before itself from any
subordinate court and in such a case has convicted the accused and

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sentenced him to death.


2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.
Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued guidelines for
issuing certificated under 134A. A mere question of fact is not enough but it
must also involve a substantial question of law.
(D) Art-136 : Special Leave to appeal :
Under this article, the SC is authorized to grant, on its discretion, special leave
to appeal from any judgment, decree, determination, sentence, or order, in any
case or matter, passed or made by any court or tribunal in the territory of India.
Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal against the
acquittal even if the state govt. hasn't. SC cannot refrain from doing its duty
just because a private party and not the state has appealed against the order.
Article 136 deals with a very special appellate jurisdiction conferred on the
Supreme Court. Articles 132 to 135 of the Constitution deal with ordinary
appeals to the Supreme Court in constitutional, civil and criminal matters.
Under Art-136 the Supreme Court has power to grant, in the discretion, special
leave to appeal from
Any judgment, decree, determination or order;
In any cause or matter;
An order passed or made by any court or tribunal in the territory of India.
Scope of Art-136 :
The scope of the Article 136 is very extensive and it invests the Court with a
plenary jurisdiction to hear appeals. Since the Court has been empowered to
hear appeals from the determination or orders passed by the tribunal
including all such administrative tribunals and bodies which are not Courts in
the strict sense, this has become most interesting aspect of this provision
from the point of administrative law.
Under the provision, the Court may hear appeals from any tribunal even
where the legislature declares the decision of a tribunal final.
A large number of ad judicatory bodies outside the regular judicial hierarchy
have sprung up in modern times and it was deemed highly desirable that the
Supreme Court should be able to keep some control over such bodies through
the technique of hearing appeal there from. Prof. Jain and Jain have rightly
observed it in this connection :
It is extremely desirable that there should be some forum to correct
misuse of power by such bodies. To leave these bodies outside the place of
any judicial control would be to create innumerable tiny despots, which

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could negative the rule of law.


General principles relating to the grant of special leave to appeal : The following
principles have been evolved on the basis of cases decided by the Court, in
connection with the grant of special leave to appeal (Art-136) :
(1) The Court has imposed certain limitations upon its own powers under
Article 136, e.g., it has laid down that the power is to be exercised sparingly
and in exceptional cases only. The power shall be exercised only where special
circumstances are shown to exist.
(2) Ordinarily, the Supreme Court would refuse to entertain appeal under
Article 136 from the order of an inferior tribunal where the litigant has not
availed himself of the ordinary remedies available to him by law, e.g., a
statutory right of appeal or revision.
(3) The reserve power of the court cannot under Article 136 be exhaustively
defined but it is true that the Court has acted arbitrarily or has not given a fair
deal to the litigant, will not be handicapped in the exercise of its findings of
facts or otherwise.
(4) It is quite plain that the Supreme Court reaches the conclusion that the
tribunal or the Court has acted arbitrarily or has not given a fair deal to the
litigant, will not be handicapped in the exercise of its findings of facts or
otherwise.
(5) The Supreme Court would not permit a question to be raised before it for
the first time, if the same has not been raised before the tribunal. But where
the question raised for the first time involves a question of law and it arose on
admitted facts, then the court may allow the same to be argued before it.
(6) In an appeal under this provision, the Supreme Court will not interfere
with the award of a Tribunal unless some erroneous principle has been
invoked or some important piece of evidence has been overlooked or
misapplied.
Compare Art-32 and Art-136 :
The ambit of Supreme Courts jurisdiction under Article 136 is in some
respects broader than that under Article 32. Article 32 is confined to the
enforcement of fundamental rights only whereas Article 136 is not so. The
appellate jurisdiction of the court gives more scope to the Court to intervene
with adjudicatory bodies and provides grounds of judicial control.
But from another point of view the jurisdiction of the Court under Article 136
is narrower than that under Article 32. Article 136 is available only in cases of
tribunals while Article 32 can be invoked when any authority whatsoever
infringes a fundamental right.
It has been found that the Court has been extremely reluctant to intervene

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with quasi-judicial bodies.


Compare Art-226 and Art-136 :
As regard the points of difference between the writ jurisdiction of the High
Courts under Article 226 any appellate jurisdiction of the Supreme Court
under Article 136, it can be said that a high court can issue a writ to any
authority whether quasi-jurisdiction or administrative; whereas the supreme
Court under Article 136 can hear appeal only from a court or tribunal. In this
respect writ jurisdiction of a High Court is broader than the appellate scope of
the Supreme Court under Article 136.
But from another point of view the scope of Article 226 is narrower than
Article 136. The Supreme Court can interfere with a decision of a tribunal on
wider form than the High Court in its writ jurisdiction, HC jurisdiction is not so
flexible, it does not enter into questions of facts while there is no restriction
on the powers of the Supreme Court under Art-136.
(E) Art 137 Power to review its judgement. :
Under exceptional circumstance, the SC may review its judgement.

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Discuss : Statutory remedies against administrative discretion : Public Interest


Litigation (PIL).
ANSWER :

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Discuss : Other remedies against administrative discretion : Council de Etat.


ANSWER :
Refer
https://en.wikipedia.org/wiki/Conseil_d%27%C3%89tat_(France )

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Write notes : Ombudsman and its adequacy in India. (Oct-2013)


Write note : ombudsman. (Nov-2012, Nov-2014)
ANSWER :
Refer :
page-117/135
page-140-162/271
Introduction:
Ombudsman means a delegate, agent, officer or commissioner.
A precise definition of Ombudsman is not possible, but Garner rightly describes
him as an officer of Parliament, having as his primary function, the duty of acting
as an agent for Parliament, for the purpose of safeguarding citizens against abuse
or misuse of administrative power by the executive.
Importance :
In Justice Report, it is observed: He is not a super-administrator to whom an
individual can appeal when he is dissatisfied with the discretionary decision of a
public official in the hope that he may obtain a more favourable decision. His
primary function ... is to investigate allegations of maladministration.
Powers and Duties :
The Ombudsman inquires and investigates into complaints made by citizens against
abuse of discretionary power, maladministration or administrative inefficiency and
takes appropriate actions. For that purpose, very wide powers are conferred on
him.
He has access to departmental files.
The complainant is not required to lead any evidence before the Ombudsman to
prove his case.
It is the function and duty of the Ombudsman to satisfy himself whether or not the
complaint was justified. He can even act suo motu.
He can grant relief to the aggrieved person as unlike the powers of a civil court, his
powers are not limited.
Status :
Generally, the Ombudsman is a judge or a lawyer or a high officer and his
character, reputation and integrity are above board.
He is appointed by Parliament and thus, he is not an officer in the administrative
hierarchy.
He is above party politics and is in a position to think and decide objectively.
There is no interference even by Parliament in the discharge of his duties.
He makes a report to Parliament and sets out reactions of citizens against the

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administration.
He also makes his own recommendations to eliminate the causes of complaints.
Very wide publicity is given to those reports.
All his reports are also published in the national newspapers. Thus, in short, he is
the 'watchdog' or 'public safety valve' against maladministration, and the "protector
of the little man".
Defects : Of course, there are some arguments against setting up of the office of the
Ombudsman.
1. It is argued that this institution may prove successful in those countries which
have a comparatively small population, but it may not prove very useful in
populous countries, like U.S.A. or India, as the number of complaints may be too
large for a single man to dispose of.
2. It is also said that the success of the institution of Ombudsman in Denmark
owes a great deal to the personality of its first Ombudsman Professor Hurwitz. He
took a keen interest in the complaints made to him and investigated them
personally. Prestige and personal contact would be lost if there are a number of
such officers, or if there is a single officer who has always to depend upon a large
staff and subordinate officers.
3. According to Mukherjea, J., in India this institution is not suitable. He describes
it as "an accusatorial and inquisitorial institution-a combination unprecedented in
democracy with traditions of independent judiciary". It is an 'impracticable and
disastrous experiment' which will not fit into the Indian Constitution.
Conclusion:
In a democratic Government, it is expected that the subjects have adequate means
for the redress of their grievances. Since the present judicial system is not
sufficient to deal with all cases of injustices, an institution like Ombudsman may
help in doing full and complete justice to aggrieved persons.
But Ombudsman is not a "panacea for all the evils of bureaucracy." His success
depends upon the existence of a reasonably well-administered State. He cannot
cope with the situation where administration is riddled with patronage and
corruption.
Indian Parliament so far has not enacted any Act though a proposal to constitute
an institution of Ombudsman (Lokpal) was made by the Administrative Reforms
Commission as early as in 1967.
Some States, however, have enacted statutes and appointed Lokayukta.

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Write note : Lokpal and Lokayukta. (Nov-2012)


Explain : powers and jurisdiction of Lokpal and Lokayukta. (Nov-2011, Dec-2015)
ANSWER :
Refer :
page-140-162/271
Intro :
After independence setting up of a democratic system of Government raised
tremendous hopes and high expectations among people. From a purely regulatory
and police administration, the government came to be entrusted with the
responsibility of economic and social transformation and that too in a hurry. The
state entered economic field in a big way and a number of regulations were
brought into play to promote socialistic pattern of the society and to ensure
distributive justice.
The committee on Prevention of Corruption (popularly known as the Santhanam
Committee) in its report gave special attention to create machinery in the
government, which should provide quick and satisfactory redress of public
grievances. Accordingly, for dealing with grievances involving corruption and lack
of integrity on the part of government servants; special machinery was brought
into existence in the form of the Central Vigilance Commission.
Need for Lokpal/ Lokayukta : Let us first broadly list out reasons due to which
grievances normally arise. These can be one or more of the following :
1. Delay in disposal of various matters;
2. Dilatory procedures which do not discriminate between routine and urgent;
3. Observance of rules for the sake of their observance without appreciating their
effect on the end results;
4. Administrative orders in exercise of discretion by executive which may be open
to question either on the ground of misuse or abuse of power resulting in injustice
5. Prevalence of corruption and outside influence;
6. Arbitrariness in executor of authority; and
7. Misconduct and misbehavior.
Though no empirical data and evidence is available yet the perception of the
general public of administrative machinery is not at all a happy one.
History :
The Administrative Reform commission recommended for the establishment of
Ombudsman type of institution in India. A Draft Bill was appended to the Interim
Report of the administrative Law Commission.

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1968 : In 1968 a Bill called the Lokpal and Lokayuktas Bill was introduced in the
Lok Sabha but before it could be passed, the Lok Sabha was dissolved and
therefore the Bill lapsed.
1971 : In 1971 and another Bill was introduced in the Lok Sabha but again the Bill
lapsed on account of the dissolution of the Lok Sabha.
1977 : In 1977 a new Bill called Lokpal Bill, 1977 was introduced in the Lok Sabha.
The Bill was referred to the Joint Select Committee of the two House of Parliament
but the Bill again lapsed on account of the dissolution of the Lok Sabha.
1985 : Again Lok Pal Bill, 1985 was introduced in the Lok Sabha and it also lapsed
because before its passage the term of the Lok Sabha ended.
1989 : 1989, Once again Lokpal Bill, 1989 by introduced.
1998 :
In August 1998 the Prime Minister Atal Bihari Bajpae presented the Lokpal Bill in
the Lok Sabha. The Prime Minister was also been brought within the jurisdiction
or power of Lokpal.
Under the Bill the Lokpal was empowered to make enquiries in the charges of
completion brought before, it against any Minister or Prime Minister or Member
or either House of Parliament.
However, he was not empowered to make enquires in the charges of corruption
against the President, Vice-President, Speaker of Lok Sabha, Comptroller and
Auditor general, Chief Election Commissioner and other Election Commissioner,
Judges of the Supreme Court and Members of the Union Public Service
Commission.
Under this Bill the institution of Lokpal was to consisted of three members
including its Chairman. Only the sitting or retired Chief Justice of India or any
Judge of the Supreme Court could be appointed its Chairman while any sitting or
retired Judge of the Supreme Court of Chief Justice of any High Court could be
appointed its members.
The appointment was to be made by President on the recommendation of the
selection committee consisting of seven members. The Vice-President would be
the Chairman of this selection committee.
The Bill could not been enacted into Act.
Desirable features of Lokpal/ Lokayukta :
Establish institutions of Lokpal/ Lokayukta. These institutions shall consist of a
Chairman and two members who may be either sitting or retired Judges of the
Supreme Court / High Court.
Where all or any of the allegation have been substantiated against a Minister,
the Prime/ Chief Minister will decide the action to be taken on the

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recommendation of the Lokpal/ Lokayukta and in the case of Prime/ Chief


Minister the Legislatures will decide the action to be taken thereon.
In case the allegation is not substantiated wholly or partly, the Lokpal/
Lokayukta will close the case.
The Lokpal/ Lokayukta shall not been given jurisdiction to enquire into the
allegation against the President, the Vice President, Governors and Speakers of
legislatures, the Chief Justices or any Judge of the Supreme/ High Court, the
Comptroller and auditor General, the Chief Election Commissioner or Election
Commissioner, the Chairman or any Member of the Union Public Service
Commission.
The Lokpal/ Lokayukta cannot enquire into any matter concerning any person if
the Lokpal/ Lokayukta or any member thereof has any bias in respect of the
person or matter.
Lokpal/ Lokayukta cannot enquire into any matter referred for enquiry under the
Commission of Enquiries Act. Besides, Lokpal/ Lokayukta cannot enquire into
any complaint made five years after the date of offence stated in the complaint.
Salary, service conditions and removal from the office :
The salary, service conditions and removal from the office in the case of the
Chairman shall be the same as those of the Chief Justice of India and in the case of
other member will be as those of the Judges of the Supreme Court.
These will ensure the independence of the institution of Lokpal/ Lokayukta as
Ombudsman.
The Bill shall also provide that a member of the Lokpal/ Lokayukta cannot be a
Member of Parliament or State legislature or a political party.
It shall also provide that a member thereof should not hold any office of trust or
profit or he should not carry on any business or practice any profession.
The Bill shall also make provision for the appointment of staff to assist the Lokpal/
Lokayukta.
Desirable Functions of Lokpal/ Lokayukta :
The Lokpal/ Lokayukta can entertain a complaint from any citizen.
The Bill shall empower the Lokpal/ Lokayukta to require a public servant or any
other person to give such information as may be desired or to produce such
documents, which are relevant for the purposes of investigation.
Lokpal/ Lokayukta shall have the powers of a Civil Court under the Civil Procedure
Code, 1908 with respect :
to summon a person and examine him on oath;
to require a person to disclose and produce a document;
to take evidence on oath;

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to require any public document or recorded to be placed before him;


to issue commission for the examination of evidence and documents;
any other matters as may be provided.
Conclusion :
The establishment of Lokpal/ Lokayukta in India is the demand of time. The
consciousness of the existence of such neutral authorities as public spirited
ombudsman will make the administration more sensitive to the public opinion and
to the demands of fairness.
It is also better to give Constitutional status to the institution of Lokpal/ Lokayukta.
The functioning of the proposed institution of Lokpal/ Lokayukta may be greatly
improved by securing for them a constitutional position like the Election
Commission under Article 324.
It must be noted that though the Lokpal/ Lokayukta may take pressure off the
courts and prevent legal principles being strained, yet they are not a panacea for
all the evils of bureaucracy.
Success of Lokpal/ Lokayukta depends on the existence of a reasonably well
administered Nation/ State.
Though the birth of a Lokpal at the Centre is still doubtful, but for some of the the
States it has become a cherished institution in the name of Lokayukta. The
institution of Lokayukta is functioning in 13 States. These States are :
Andhra Pradesh, Assam, Bihar, Gujarat, Himachal Pradesh, Karnataka, Madhya
Pradesh, Maharashtra, Rajasthan, Uttar Pradesh, Orissa, Punjab and Haryana.

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Discuss : Other remedies against administrative discretion : self-help.


ANSWER :
Refer

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Discuss the characteristics and importance of administrative tribunal. Explain how


administrative tribunals differ from courts. (Nov-2012)

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Discuss : Constitutional provisions (and amendments) for administrative


tribunals.
Discuss in detail the concept and kinds of Administrative Tribunals. (Dec-2016)
What do you mean by administrative tribunals. Discuss its nature and
characteristics. Explain the position of administrative tribunals after the decision of
L Chandrakumar -v- union of India. (Nov-2014)
Explain in detail : concept and jurisdiction of administrative tribunals. (Nov-2011)
Explain the constitutions, characteristics and functions of the Administrative tribunals.
Describe importance thereof. (Oct-2013)
Explain : administrative tribunals. (Dec-2015)
ANSWER :
Intro :
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.
Though according to the traditional theory, the function of adjudication of disputes
is within the jurisdiction of the 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.
There are a large number of laws which charge the Executive with adjudicatory
functions, and the authorities so charged are, in the strict scene, administrative
tribunals.
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.
Administrative tribunals are agencies created by specific enactments, eg
Administrative Tribunals Act 1985.

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Evolution Of Administrative Tribunals :


The growth of Administrative Tribunals both in developed and developing countries
has been a significant phenomenon of the twentieth century.
In India also, the question of establishment of Administrative Tribunals to provide
speedy and inexpensive relief to the government employees relating to grievances
on recruitment and other conditions of service had been under the consideration of
Government of India for a long time. Due to their heavy preoccupation, long
pending and backlog of cases, costs involved and time factors, Judicial Courts could
not offer the much- needed remedy to the government servants, in their disputes
with the government.
The dissatisfaction among the employees, irrespective of the class, category or
group to which they belong, is the direct result of delay in their long pending cases
or cases not attended properly. Hence, a need arose to set up an institution, which
would, help in dispensing prompt relief to harassed employees who perceive a
sense of injustice and lack of fair play in dealing with their service grievances. This
would motivate the employees better and raise their morale, which in turn would
increase their productivity.
The Administrative Reforms Commission (1966-70) recommended the setting up of
Civil Service Tribunals to function as the final appellate authority, in respect of
government orders inflicting major penalties of dismissal, removal from service and
reduction in rank.
As early as 1969, a Committee under the chairmanship of J.C. Shah had
recommended that having regard to the very number of pending writ petitions of
the employees in regard to the service matters, an independent Tribunal should be
set up to exclusively deal with the service matters.
The Supreme Court in 1980, while disposing of a batch of writ petitions observed
that the public servants ought not to be driven to or forced to dissipate their time
and energy in the courtroom battles. The Civil Service Tribunals should be
constituted which should be the final arbiter in resolving the controversies relating
to conditions of service.
The government also suggested that public servants might approach fact-finding
Administrative Tribunals in the first instance in the interest of successful
administration.
The matter came up for discussion in other forums also and a consensus emerged
that setting up of Civil Service Tribunals would be desirable and necessary, in
public interest, to adjudicate the complaints and grievances of the government
employees.
Constitutional provision :
The Constitution (through 42nd amendment Article 323-A) empowered the

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Parliament to provide for adjudication or trial by Administrative Tribunals of


disputes and complaints with respect to recruitment and constitutions of service of
persons appointed to public service and posts in connection with the affairs of the
union or of any state or local or other authority within the territory of India or
under the control of the government or any corporation owned or controlled by the
government.
In pursuance of the provisions of Article 323-A of the Constitution, the
Administrative Tribunals Bill was introduced in Lok Sabha on 29th January 1985
and received the assent of the President of India on 27 th February 1985.
Establishment of Administrative Tribunals : Sec-4 of Administrative Tribunals Act,
1985 :
(1) Central Administrative Tribunals : The Central Government shall, by
notification, establish an Administrative Tribunal, to be known as the Central
Administrative Tribunal, to exercise the jurisdiction, powers and authority conferred
on the Central Administrative Tribunal by or under this Act.
(2) State Administrative Tribunals : The Central Government may, on receipt of a
request in this behalf from any State Government, establish, by notification, an
Administrative Tribunal for the State to be known as the.......(name of the State)
Administrative Tribunal to exercise the jurisdiction, powers and authority conferred
on the Administrative Tribunal for the State by or under this Act.
(3) Joint Administrative Tribunals : Two or more States may, enter into an
agreement that the same Administrative Tribunal shall be the Administrative
Tribunal for each of the States participating in the agreement, and the Central
Government may, by notification, establish a Joint Administrative Tribunal to
exercise the jurisdiction, powers and authority conferred on the Administrative
Tribunals for those States by or under this Act.
An agreement under sub-section (3) shall contain provisions as to the name of
the Joint Administrative Tribunal, the manner in which the participating States
may be associated in the selection of the Chairman, and other Members of the
Joint Administrative Tribunal, the places at which the Bench or Benches of the
Tribunal shall sit, and may also contain such other supplemental, incidental and
consequential provisions not inconsistent with this Act.
(5) The Central Government may,-- with the concurrence of any State
Government, (a) designate, by notification, any of the Members of the State
Administrative Tribunal as Members of the Central Administrative Tribunal, (b)
designate, by notification, the Members of the Central Administrative Tribunal as
the Members of the State Administrative Tribunal.
And upon such designation, the Bench or Benches of the State Administrative
Tribunal or, as the case may be, the Bench or Benches of the Central
Administrative Tribunal shall be deemed, in all respects, to be the Central

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Administrative Tribunal, or the State Administrative Tribunal for that State


established under the provisions of article 323A of the Constitution and this Act.
Characteristics of Administrative Tribunals :
Administrative Tribunals is the creation of a statute.
An Administrative Tribunals is vested in the judicial power of the State and thereby
performance quasi-judicial functions as distinguished form pure administrative
functions.
Administrative Tribunals is bound to act judicially and follow the principles of
natural justice.
It has some of the trapping of a court and are required to act openly, fairly and
impartially.
An administrative Tribunal is not bound by the strict rules of procedure and
evidence prescribed by the civil procedure court.
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.
Income Tax Tribunal always decides disputes between the Government and the
assessees.
Administrative tribunals are independent and they are not subject to any
administrative interference in the discharge of their judicial or quasi-judicial
functions.
Advantages of Administrative Tribunals :
1. The traditional judicial system is slow, costly, inexpert, complex and formalistic
and already overburdened. Traditional courts failed to speedily dispose very
important matters, e.g disputes between employers and employees, lockout,
strikes, problems relating to atomic energy, gas, electricity, etc. These burning
problems cannot be solved merely by literally interpreting the provisions of any
statute, but require the consideration of various other factors.
Therefore, industrial tribunals and 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. On the other hand the traditional
judiciary is conservative, rigid and technical. On the other hand, administrative
tribunals can take a practical view of the matter to decide the complex problems.
3. 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

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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. 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.
Limitations of the Tribunals :
The tribunal consists of members and heads that may not possess any background
of law.
Tribunals do not rely on uniform precedence and hence may lead to arbitrary and
inconsistent decision.
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.

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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.
Note : 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. While a court of law is bound by precedents, principles of res judicata and
estoppel,
an administrative tribunal is not strictly bound by them.
9. A court of law can decide the 'vires' of a legislation,
while an administrative tribunal cannot do so.
JURISDICTION, POWERS AND AUTHORITY :
Chapter III of the Administrative Tribunal Act deals with the jurisdiction, powers

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and authority of the tribunals. Section 14(1) of the Act vests the Central
Administrative Tribunal to exercise all the jurisdiction, powers and authority
exercisable by all the courts except the Supreme Court of India under Article 136 of
the Constitution.
One of the main features of the Indian Constitution is judicial review. There is a
hierarchy of courts for the enforcement of legal and constitutional rights. One can
appeal against the decision of one court to another, like from District Court to the
High Court and then finally to the Supreme Court, But there is no such hierarchy of
Administrative Tribunals and regarding adjudication of service matters, one would
have a remedy only before one of the Tribunals.
Though Supreme Court under Article 136, has jurisdiction over the decisions of the
Tribunals, as a matter of right, no person can appeal to the Supreme Court. It is
discretionary with the Supreme Court to grant or not to grant special leave to
appeal.
The Administrative Tribunals have the authority to issue writs.
On the other hand, the prerogative writs of certiorari and prohibition are
available against the decisions of administrative tribunals.
In disposing of the cases, the Tribunal observes the canons, principles and norms
of natural justice.
The Act provides that a Tribunal shall not be bound by the procedure laid down in
the Code of Civil Procedure 1908, but shall be guided by the principles of natural
justice.
The Tribunal shall have power to regulate its own procedure including the fixing of
the place and times of its enquiry and deciding whether to sit in public of private.
A Tribunal has the same jurisdiction, powers and authority, as those exercised by
the High Court, in respect of Contempt of itself that is, punish for contempt, and
for the purpose, the provisions of the contempt of Courts Act 1971 have been
made applicable. This helps the Tribunals in ensuring that they are taken seriously
and their orders are not ignored.

Go To Module-3 QUESTIONS
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Discuss : Case of (i) Sampat Kumar, (ii) L. Chandrakumar.


ANSWER :
Case-law : Sampat Kumar :
https://indiankanoon.org/doc/1714057/
https://indiankanoon.org/doc/359668/

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Case-law : L. Chandrakumar :
https://indiankanoon.org/doc/176831494/
https://indiankanoon.org/doc/145084454/

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Module - 4) Miscellaneous :
4.1) Liability of the Government
4.1.1) Contractual Liability
4.1.2) Tortuous liability, Doctrine of Estoppel, Crown Privilege
4.2) Public Corporations: Definition, characteristics, classification and working
4.3) Rights and liabilities of Public Corporations, Control over Public
Corporations
4.4) Vigilance Commission,
4.5) Doctrine of Legitimate Expectation (overlap with module-3.1), Doctrine of
unjust enrichment

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Module-4 QUESTIONS :
Explain the contractual liabilities and tortious liabilities of state with decided
cases. (Dec-2015)
Explain the contractual liabilities of the state with decided cases. (Nov-2011)
Explain in detail the tortuous liabilities of the State taking into consideration the
Judicial Approach. (Oct-2013)
Explain the tortuous liabilities of the state with decided cases. (Nov-2011, Nov-2012,
Nov-2014)
Discuss : Crown Privilege
Privileges and Immunities of the Administration in Suits
Limited immunity of state from Doctrine of Promissory Estoppel.
Define the term public corporation and explain its statutory and constitutional
position. (Dec-2015)
Explain : concept and importance of the public corporation. (Nov-2011, Oct-2013,
Nov-2014)
Discuss : Classification of public corporation
Discuss : Rights and liabilities of public corporation
Write note : Parliamentary control on public corporation. (Nov-2012)
Write note : vigilance commission. (Nov-2012, Oct-2013, Dec-2015)
Explain in detail the powers and functions of Vigilance Commission with case laws.
(Dec-2016)
Write note : Doctrine of legitimate expectation. (Nov-2012)

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Discuss : Doctrine of unjust enrichment

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Module-4 ANSWERS :
Explain the contractual liabilities and tortious liabilities of state with decided
cases. (Dec-2015)
Explain the contractual liabilities of the state with decided cases. (Nov-2011)
Explain in detail the tortuous liabilities of the State taking into consideration the
Judicial Approach. (Oct-2013)
Explain the tortuous liabilities of the state with decided cases. (Nov-2011, Nov-2012,
Nov-2014)
ANSWER :
Intro :
It is fundamental to the rule of law that the Crown, like other public authorities,
should bear its fair share of legal liability and be answerable for wrongs done to its
subjects. The immense expansion of governmental activity from the latter part of
the nineteenth century onwards made it intolerable for the Government, in the
name of the Crown, to enjoy exemption from the ordinary law.
English law has always clung to the theory that the King is subject to law and,
accordingly, can commit breach thereof. As far as 700 years ago, Bracton had
observed: The King is not under man, but under God and under the law, because
it is the law that makes the King.
In India, history has traced different path. The maxim the King can do no wrong
has never been accepted in India. The Union and the States are legal persons and
they can be held liable for breach of contract and in tort. They can file suits and
suits can be filed against them.
The liabilities of state may be divided in to following categories :
contractual liabilities, and
tortious liabilities
CONTRACTUAL LIABILITIES OF STATE : Contractual liability of the Union of India and
States is recognized in the Constitution itself.
Article 298 expressly provides that the executive power of the Union and of each
State shall extend to the carrying on of any trade or business and the acquisition,
holding and disposal of property and the making of contracts for any purpose.
Article 299(1) prescribes the mode or manner of execution of such contracts. It
reads : All contracts made in the exercise of the executive power of the Union or of

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a State shall be expressed to be made by the President, or by the Governor of the


State, as the case may be, and all such contracts and all assurances of property
made in the exercise of that power shall be executed on behalf of the President or
the Governor by such persons and in such manner as he may direct or authorize.
ESSENTIAL Requirements : Reading the aforesaid provision, it becomes clear that
Article 299 lays down the following conditions and requirements which must be
fulfilled in contracts made by or with the Union or a State :
1. Every contract must be expressed to be made by the President or the
Governor (as the case may be);
2. Every contract must be executed by a person authorized by the President
or the Governor (as the case may be); and
3. Every contract must be expressed in the name of President or the Governor
(as the case may be).
1. Written Contract : A contract to be valid under Article 299(1), must be in
writing. The words expressed to be made and executed in this article clearly
go to show that the must be a formal written contract executed by a duly
authorized person. Consequently, if there is an oral contract, the same is not
binding on the Government. This is not a mere formality but a substantial
requirement of law and must be fulfilled. It, however, does not mean that there
must be a formal agreement properly signed by a duly authorized officer of the
Government and the second party. The words 'expressed' and executed have
not been literally and technically construed.
2. Execution by authorized person : The second requirement is that such a
contract can be entered into on behalf of the Government by a person
authorized for that purpose by the President or the Governor as the case may
be. If it is signed by an officer who is not authorized by the President or
Governor, the said contract is not binding on the Government and cannot be
enforced against it.
In Union of India v. N.K. (P) Ltd., the Director was authorized to enter into a
contract on behalf of the President. The contract was entered into by the
Secretary, Railway Board. The Supreme Court held that the contract was
entered into by an officer not authorized for the said purpose and it was not a
valid and binding contract.
3. Expression in the name of President (Governor) : The last requirement is that
such a contract must be expressed in the name of the President or the Governor,
as the case may be. Thus, even though such a contract is made by an officer
authorized by the Government in this behalf, it is still not enforceable against the
Government if it is not expressed to be made on behalf of the President or the
Governor.
In Bhikraj Jaipuria, the contracts entered into by the Divisional

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Superintendent were not expressed to be made on behalf of the Governor-


General. Hence, the Court held that they were not enforceable even though
they were entered into by an authorized person.
Effect of Non-compliance of above requirements :
The provisions of Article 299(1) are mandatory and not directory and they must
be complied with. They are not inserted merely for the sake of form, but to
protect the Government against unauthorized contracts. If, a contract is
unauthorized or in excess of authority, the Government must be protected from
being saddled with liability to avoid public funds being wasted.
Therefore, if any of the aforesaid conditions is not complied with, the contract is
not in accordance with law and the same is not enforceable by or against the
Government.
Formerly, the view taken by the Supreme Court was that in case of non-
compliance with the provisions of Article 299(1), a suit could not be filed against
the Government as the contract was not enforceable, but the Government could
accept the liability by ratifying it. But in Mulamchand v. State of M.P, the
Supreme Court held that if the contract was not in accordance with the
constitutional provisions, in the eye of the law, there was no contract at all and
the question of ratification did not arise. Therefore, even the provisions of S.
230(3) of the Indian Contract Act, 1872 would not apply to such a contract and
it could not be enforced against the government officer in his personal capacity.
Effect of a Valid contract :
If the provisions of Article 299(1) are complied with, the contract is valid and it
can be enforced by or against the Government and the same is binding on the
parties thereto.
Once a legal and valid contract is entered into between the parties, including
Government(s), the relations between the contracting parties are no longer
governed by the provisions of the Constitution but by the terms and conditions
of the contract.
Article 299(2) provides that neither the President nor the Governor shall be
personally liable in respect of any contract executed for the purpose of the
Constitution or for the purpose of any enactment relating to the Government of
India. It also grants immunity in favour of a person making or executing any
such contract on behalf of the President or the Governor from personal liability.
Quasi-contractual Liability :
The provisions of Article 299(1) of the Constitution are mandatory and if they
are not complied with, the contract is not enforceable in a court of law at the
instance of any of the contracting parties.
In these circumstances, with a view to protecting innocent persons, courts have

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applied the provisions of Section 70 of the Indian Contract Act, 1872 and held
the Government liable to compensate the other contracting party on the basis of
quasi-contractual liability.
What Section 70 provides is that if the goods delivered are accepted or the work
done is voluntarily enjoyed, then the liability to pay compensation for the
enjoyment of the said goods or the acceptance of the said work arises.
Thus, where a claim for compensation is made by one person against another
under Section 70 of Indian Contract Act, 1872, it is not on the basis of any
subsisting contract between the parties, but on the basis of the fact that
something was done by one party for the other and the said work so done has
been voluntarily accepted by the other party. Thus, Section 70 of the Contract
Act prevents unjust enrichment.
However, before Section 70 of the Contract Act is invoked, the following
conditions must be fulfilled :
A person must have lawfully done something for another person or deliver
something to him;
He must not have intended to do such act gratuitously; and
The other person must have accepted the act or enjoyed the benefit.
If above three conditions are fulfilled the section 70 of ICA 1872 enjoins on
the person receiving benefit to pay compensation to the other party.
Doctrine of Unjust Enrichment : Read elsewhere in this doc.
Grant of State largess :
The modern State is no more a Police State. It has become Welfare State and
in that role, it has undertaken several commercial activities. A private individual,
no doubt, has an absolute right whether to enter into contract with the State.
The State has equally a right to enter or not to enter an agreement with any
person.
The said right, however, is not absolute, unlimited or unqualified particularly in
granting State largess.
Contract of Service :
A contract of service between State and a private person is not governed by
Article 299 of the Constitution. At the initial stage of appointment in Government
service, no doubt, there is a contract between the parties. There is an offer and
acceptance of employment.
But once a person is appointed, he/she acquires a status and the relationship no
more governs by a contract, but by an appropriate Legislation or Rules under
proviso to Article 309 of the Constitution.
In the leading case of Roshan Lal Tandon v. Union of India, the Constitution

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Bench of the Supreme Court stated: It is true that Article 311 imposes
constitutional restrictions upon the power of removal granted to the President
and the Governor under Article 310. But it is obvious that the relationship
between the Government and its servant is not like an ordinary contract of
service between a master and servant. The legal relationship is something
entirely different, something in the nature of status. It is much more than a
purely contractual relationship voluntarily entered into between the parties. The
duties of status are fixed by the law and in the enforcement of these duties
society has an interest. In the language of jurisprudence status is a condition of
membership of a group of which powers and duties are exclusively determined
by law and not by agreement between the parties concerned.
Unconscionable Contracts :
If a contract between an individual and a Government contains a clause which is
arbitrary, unreasonable, unconscionable or opposed to public policy. It cannot be
enforced by a court of law.
Thus, a condition in a service contract that service of a permanent employee can
be terminated by paying three months salary cannot be enforced. Similarly, a
provision in a contract of service empowering the employer to terminate services
of an Air Hostess on her first pregnancy must be held to be extremely arbitrary,
unreasonable and abhorrent to all notions of civilized society. Likewise, en messe
termination of all Government Counsel without assigning any reason is violative
of Article 14 of the Constitution even if the action is in accordance with a term of
the contract.
On the same principle, all allotments made in favour of several persons granting
licence to run petrol pumps cannot be cancelled. Even in contractual matters,
the Government cannot act unreasonably.
Statutory Contracts : Article 299 of the Constitution applies to a contract made by
the Government in exercise of executive powers and not in exercise of statutory
powers. Thus, there is a distinction between contracts entered into between
Government and a private party in exercise of executive powers and in exercise of
statutory powers of the State.
The rights and liabilities of the parties in a contract entered into between
Government and an individual in exercise of the executive powers of the State
are governed by Article 299 of the Constitution, *BUT* the rights and liabilities
of the parties in a contract government by a statutory provisions are governed
by the relevant statute under which such contract is entered into. Article 299 of
the Constitution has no application to such contracts.
TORTIOUS LIABILITY OF STATE : Should the State be held liable in respect of tortious
acts committed by its servants ?
Under Article 294(b) of the Constitution, the liability of the Union Government or a

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State Government may arise out of any contract or otherwise. The word
'otherwise' suggests that the said liability may arise in respect of tortuous acts
also.
Under Article 300(1), the extent of such liability is fixed. It provides that the
liability of the Union of India or of a State Government will be the same as that of
the Dominion of India and the Provinces before the commencement of the
Constitution (if this Constitution had not been enacted).
Doctrine of Vicarious Liability :
Since the State is a legal entity and not a living personality, it has to act through
human agency, i.e. through its servants. When we discuss the tortuous liability
of the State, it is really the liability of the State for the tortious acts of its
servants that has to be considered.
In other words, it refers to when the State can be held vicariously liable for the
wrongs committed by its servants or employees.
Vicarious liability refers to a situation where one person is held liable for act or
omission of other person. Thus, the master may be held liable for the torts
committed by his servant in the course of employment.
The doctrine of vicarious liability is based on two maxims :
Respondeat superior (Let the principal be liable); and
Qui facit per alium facit per se (He who does an act through another does it
himself).
There is no reason why this doctrine should not be applied to the Crown in
respect of torts committed by its servants. In fact, if the Crown is not held
vicariously liable for such torts, the aggrieved party, even though it had
sustained a legal injury, would be without any effective remedy, in as much as
the government servant may not have sufficient means to satisfy the judgment
and decree passed against him.
In State of Rajasthan v. Vidhyawati, a jeep was owned and maintained by the
State of Rajasthan for the official use of the Collector of a district. Once the
driver of the jeep was bringing it back from the workshop, after repairs. By his
rash and negligent driving of the jeep a pedestrian was knocked down. He died
and his widow sued the driver and the State for damages. A Constitution Bench
of the Supreme Court held the State vicariously liable for the rash and negligent
act of the driver. The court after referring to the P & O Steam Navigation Co. did
not go into the wider question as to whether the act was a sovereign act or not.
But it held that the rule of immunity based on the English law had no validity in
India.
Distinction between soverign and non-soverign functions of the State :
The Court, in cases subsequent to State of Rajasthan v. Vidhyawati, decided to

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look into the matter of whether the act was sovereign or not. The principle which
emerges is that if the function involved is a sovereign function, the State
cannot be held liable in tort, but if it is a non-sovereign function, the State will
be held liable.
Example of sovereign function --- failure of security forces to neutralize
terrorists or to control riots
Example of non-sovereign function --- State of Rajasthan v. Vidhyawati
But the difficulty lies in formulating a definite test or criterion to decide to which
category the act belongs. In fact, it is very difficult to draw a distinction between
the two. The watertight compartmentalization of the State's functions into
sovereign and non-sovereign or governmental and non-governmental is unsound
and highly reminiscent of the laissez faire era.
The test whether the act in question could have been performed only by the
government or also by a private individual is also not helpful in deciding the
issue. In a welfare State, the governmental functions have increased and today,
not all the functions performed by the Government are sovereign functions; e.g.
commercial activities like the running of the Railways.
It is also said that if the act in question is statutory, it may be regarded as a
sovereign function, but it is a non sovereign function if it is non-statutory. But
this test is equally defective. An activity may be regarded as sovereign even
though it has no statutory basis (power to enter into a treaty with a foreign
country) and conversely, it may be regarded as non-sovereign even though it
has a statutory basis (running of Railways).
Moreover, sometimes a particular act may be held to be a sovereign function by
one court but non-sovereign by another. For example, running of the Railways
was held to be a sovereign function by the High Court of Bombay, but non-
sovereign by the High Court of Calcutta and this may lead to further uncertainty
in law.
Further, the traditional doctrine of sovereign immunity has no relevance in the
modern age when the concept of sovereignty itself has undergone drastic
change. The old and archaic concept of sovereignty no longer survives.
Sovereignty now vests in the people.
Hence, even such actions of the Government which are solely concerned with
relations between two independent States are now amenable to scrutiny by
courts.
Sometimes the distinction between sovereign and non-sovereign functions is
categorized as regal and non-regal functions. The former is confined to
legislative, executive and judicial power whereas the latter can be characterized
as analogous to private company. In the former, the Government is not liable
but in the latter, it is liable.

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the concept of public interest has also undergone change. No legal or political
system today can place the State above law and can deprive its citizens of life,
liberty or property by negligent acts of its officers without providing any remedy.
Even if the governmental functions can be classified into one or the other category,
the principle is unsatisfactory from yet another viewpoint. Generally, in a civil
action in tort, the principal idea is to compensate the aggrieved person and not to
penalize the wrongdoer or his master. And if in compensating the aggrieved party,
the wrongdoer or his master has to pay damages, the resultant burden on the
latter is merely incidental and not by way of penalty or punishment. It is, therefore,
absurd and inhumane to hold that the Government would not be liable if a military
truck supplying meals to military personnel struck a citizen, but it would be liable if
such an accident occurred when the truck carried coal to an army headquarters.
Conclusion: Recent judicial trend is, undoubtedly, in favour of holding the State liable
in respect of tortious acts committed by its servants. In cases of police brutalities,
wrongful arrest and detention, keeping the under-trial prisoners in jail for long
periods, committing assault or beating up prisoners, etc. the courts have awarded
compensation to the victims or to the heirs and legal representatives of the deceased.
As a matter of fact, the courts have severely criticized the inhuman attitude adopted
by the State officials.
The Law Commission also stated: The old distinction between sovereign and non-
sovereign functions should no longer be invoked to determine liability of the State.

Go To Module-4 QUESTIONS
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Discuss : Crown Privilege.


Privileges and Immunities of the Administration in Suits
ANSWER :
Intro :
The various privileges available to the Government under various statutes are as
follows: -
I. Immunities from the operation of the statute.
II. Privileges and Immunities under the Civil Procedure Code, 1908.
III. Privileges under the Evidence Act (Privileges to withhold documents).
I. Immunities from the operation of the statute :
In England the statutes are not binding on the crown unless by express provision or
by necessary implication, they are made binding thereon. Its basis is the maxim
the King can do no wrong".

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This rule was followed even in India till 1967.


In India the current position is that the statute binds the State or Government
unless expressly or by necessary implication it has exempted or excluded from its
operation. In case the State has been exempted from the operation of the statute
expressly, there is no difficulty in ascertaining whether the statute is binding on the
State or not but it becomes a difficult issue in case where the State is exempted
from the operation of the statute by necessary implication.
However, where the statute provides for criminal prosecution involving
imprisonment, the statute is deemed to be excluded from the operation of
necessary implication.
II. Privileges and Immunities under the Civil Procedure Code 1908 :
Section 80 (1) of CPC provides that no suit shall be instituted against the
Government or against a public officer in respect of any act purporting to be done
by such public officer in his official capacity, until the expiration of two months next
after notice in writing has been delivered in the manner provided in the section.
The section is mandatory and admits of no exception.
Thus, the requirement of notice is mandatory.
However, it is to be noted that if a public officer acts without jurisdiction, the
requirement of notice is not mandatory. Its object appears to provide the
Government or the public officer an opportunity to consider the legal position
thereon and settle the claim without litigation.
The Government may waive the requirement of notice; the waiver may be express
or implied.
The requirement of notice causes much inconvenience to the litigants especially
when they seek immediate relief against the Government. To minimize the
hardships to the litigants a new Clause (20 was inserted in S.80 of the C.P.C. The
clause provides that the Court may grant leave to a person to file a suit against the
Government or a public officer without serving the two-months notice in case
where relief claimed is immediate and urgent. Before granting this exemption the
Court is required to satisfy itself about the immediate and urgent need.
It is to be noted that S.80 of the C.P.C does not apply to a suit against a statutory
Corporation. ie such notice is not required to be given in cases the suit is filed
against statutory Corporation.
S.80 does not apply with respect to a claim against the Government before the
claim Tribunal under the Motor Vehicle Act.
S.80 of the C.P.C. does not apply to a writ petition against the Government or a
public officer.
III. Privileges under the Evidence Act (Privileges to withhold documents) :
In England the Crown enjoys the privilege to withhold from producing a document

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before the Court in case the disclosure thereof is likely to jeopardize the public
interest.
In Duncon v. Cammel Laird Co. Ltd. (1942 AC 624) The Court held that the Crown
is the sole judge to decide whether a document is a privileged one and the court
cannot review the decision of the Crown. However, this decision has been overruled
in the case of Conway v. Rimmer. ( 1968 AC 910) In this case the Court has held
that it is not an absolute privilege of the Crown to decide whether a document is a
privileged one. The court can see it and decide whether it is a privileged one or not.
In India S. 123 provides that no one shall be permitted to give any evidence
derived from unpublished official records relating to any affair of State except with
the permission of the officer at the Head thinks fit. Only those records relating to
the affairs of the State are privileged, the disclosure of which would cause injury to
the public interest.
To claim this immunity the document must relate to affairs of state and disclosure
thereof must be against interest of the State or public service and interest.
The section is based on the principle that the disclosure of the document in
question would cause injury to the public interest. And that, in case of conflict
between the public interest and the private interest, the private interest must yield
to the public interest.
The Court has power to decide as to whether such communication has been made
to the officer in official confidence. For the application of S.124 the communication
is required to have made to a public officer in official confidence and the public
officer must consider that the disclosure of the communication will cause injury to
the public interest.
According to S.162 a witness summoned to provide a document shall, if it is in his
possession or power, bring it to the Court, not withstanding any objection which
there may be to its production or to its admissibility. The Court shall decide on the
validity of any such objection.
It is for the Court to decide as to whether a document is or is not a record relating
to the affairs of the State. For this purpose the Court can take evidence and may
inspect the document itself.
Case law :
In State of Punjab v. Sodhi Sukdev Singh ( AIR 1961 SC 493) the court had the
opportunity of discussing the extent of government privilege to withhold documents
where twin claims of governmental confidentiality and individual justice compete
for recognition. The court was very alive to the constraints of this privilege on
private defense, therefore Gajendragadkar, J. delivering the majority judgment
cautioned that care has to be taken to see that interests other than that of the
public do not masquerade in the garb of public interest and take undue advantage
of the provision of Section 123. In order to guard against the possible misuse of

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the privilege, the court also developed certain norms :


First, the claim of privilege should be in the form of an affidavit, which must be
signed by the Minister concerned, or the Secretary of the Department.
Second, the affidavit must indicate within permissible limits the reasons why the
disclosure would result in public injury, and that the document in question has
been carefully read and considered and the authority is fully convinced that its
disclosure would injure public interest.
Third, if the affidavit is found unsatisfactory, the court may summon the
authority for cross-examination.
In Indira Nehru Gandh v. Raj Narain . (1975 Supp SCC 1: AIR 1975 SC 2299) the
Court compelled the production of Blue Books of the police and disallowed the
claims of privilege.
The law on Government privileges took a new turn in S.P. Gupta v. Union of India (
AIR 1982 SC 149) The question in the present case was whether the
correspondence between the Law Minister and these Chief Justices ought to be
produced in the Supreme Court, so, as to enable the court to judge the question of
validity of the non-continuance of an Additional Judge in the Delhi High Court. The
government opposed the production of these reports on the ground that their
disclosure would injure public interest under Section 123 of the Indian Evidence
act. But the Supreme Court ruled otherwise. The case is a definite evidence of
courts attempt to promote the ideal of open Government in India. Justice Bhagwati
took some such view in the above case when he expressed his faith in the ideal of
an open Government. Merely secrecy of the Government is not a vital public
interest so as to prevail over the most imperative demands of justice.
Bhagwati, J. emphasized, Where a society has chosen to accept democracy as
its creedal faith, it is elementary that the citizens ought to know what their
Government is doing. He observed: The citizens right to know the facts, the
true facts, about the administration of the country is thus one of the pillars of a
democratic state. And this is why the demand for openness in the Government is
increasingly growing in different parts of the world. He further pointed out that
if the process and functioning of Government are kept shrouded in secrecy and
hidden from public scrutiny, it would tend to promote and encourage oppression,
corruption and misuse or abuse of authority.
Current status : Above decision has opened a new dimension of judicial control
over the exercise of privileges under Sections 123 by the executive. The Court now
has assumed the power of inspection of documents in camera and if it finds that its
disclosure would harm the public interest, the claim for non-disclosure might be
upheld. If the disclosure, to the mind of the Court, does not harm the public
interest, its disclosure would be ordered.
Period of Limitation for Suit Against Government :

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Definition : Section 2 (j) of Limitation Act 1963 : "period of limitation" means the
period of limitation prescribed for any suit, appeal or application by the Schedule,
and "prescribed period" means the period of limitation computed in accordance
with the provisions of this Act;
Definition : Section 3 : Bar of limitation :
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made after the prescribed period
shall be dismissed although limitation has not been set up as a defence.
....
Sr No 112 of the First Schedule of the Limitation Act 1963 prescribes period of
limitation for suits by or on behalf of the State. The provision applies to the Central
Government an all the State Governments including the Government of the State
of Jammu and Kashmir.
The longer limitation period was based on the common law maxim "nulla tempus
occur it rein" (ie, no time affects the Crown). The longer period of limitation,
however, does not apply to appeals and applications by Government.
Under Sec-5 of the Limitation Act, it is provided that an appeal or application may
be admitted after the expiry of the period of limitation if the court is satisfied that
there was sufficient cause for the delay. It was held that the government was not
entitled to any special consideration in the matter of condonation of delay.

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Limited immunity of state from Doctrine of Promissory Estoppel.


ANSWER :
Intro :
Estoppel is a rule whereby a party is precluded from denying the existence of some
state of facts, which he had previously asserted and on which the other party has
relied or is entitled to rely on.
Courts, on the principle of equity, to avoid injustice, have evolved the doctrine of
promissory estoppels.
The doctrine of promissory estoppel or equitable estoppel is firmly established in
administrative law. The doctrine represents a principle evolved by equity to avoid
injustice. Application of the doctrine against government is well established
particularly where it is necessary to prevent manifest injustice to any individual.
The doctrine of promissory estoppel against the Government also in exercise of its
Government, public or executive functions, where it is necessary to prevent fraud

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or manifest injustice. The doctrine within the aforesaid limitations cannot be


defeated on the plea of the executive necessity or freedom of future executive
action.
The doctrine cannot be pressed into aid to compel the Government or the public
authority to carry out a representation or promise :
(a) which is contrary of law; or
(b) which is outside the authority or power of the Officer of the Government or
of the public authority to make.
It is to be noted that Estoppel cannot be pleaded against a minor or against
statute. Estoppel does not lie against the Government on the representation or
Statement of facts under S. 115 if it is against the statute or Act of the Legislature
but it may be applied in irregular act. The liability of the Government has been
extended by the doctrine of Promissory Estoppel.
Doctrine of Promissory Estoppel is often applied to make the Government liable for
its promises and stopped from going back from the promise made by it. According
to this doctrine where a person by words or conduct and the other person acts on
such promise or assurance and changes his positive to his detriment, the person
who gives such promise or assurance cannot be allowed to revert or deviate from
the promise.
Case law :
In Union of India v. Anglo (Indo) Afghan Agencies Ltd.,(AIR 1968 SC 718) The
doctrine of Promissory Estoppel was applied against the Government. This case
developed a new judicial trend. The Court upheld the application of Promissory
Estoppel to the executive acts of the State. The Court negated the plea of
executive necessity. Under the scheme an exporter was entitled to import raw
materials equal to the amount, which was exported. Five lakhs rupees worth goods
were exported by the petitioner but he was given import license for an amount
below two lakh rupees. The Court held that the Government was bound to keep its
promise. The scheme was held to be binding on the Government and the petitioner
was entitled to get the benefit of the scheme.
The Supreme Court in Century Spinning and Manufacturing Co. Ltd. V. Ulhasnagar
Municipal Council,(AIR 1971 SC 1021) again extended the doctrine of Promissory
Estoppel. In this case this doctrine was applied against public authorities. The Court
has made it clear that this Court will not make a distinction between a private
individual and a public body so far as the doctrine of Promissory Estoppel is
concerned.
In short, if the Government makes a promise and promisee acts upon it and changes
his position, then the Government will be held bound by the promise and cannot
change its position against the promisee and it is not necessary for the promisee to
further show that he has acted to his detriment.

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For the application of the doctrine of Promissory Estoppel it is not necessary that
there should be some pre-existing contractual relationship between the parties.
In Delhi Cloth and General Mills v. Union of India, (1988 1 S.C.C. 86) the Supreme
Court has held that for the application of the principle of Promissory Estoppel change
in position by acting on the assurance to the promise is not required to be proved.
Exceptions :
The judicial opinion is that it cannot be invoked against a statutory provision or to
support an ultra vires act or to compel the Government or a public authority to
carry out a promise, which is contrary to law, or ultra vires its powers.
The doctrine of Promissory Estoppel is not applied in the following conditions :
1. Public Interest : The doctrine of Promissory Estoppel is an equitable doctrine and
therefore it must yield place to the equity if larger public interest requires. It would
not be enough to say that the public interest requires that the Government would
suffer if the Government were required to honor it. In order to resist its liability the
Government would disclose to the Court the various event insisting its claim to be
exempt from liability and it would be for the Court to decide whether those events
are such as to render it equitable and to enforce the liability against the
Government.
2. Representation against law: The doctrine of Promissory Estoppel cannot be
applied so as compel the Government or the public authority to carry out a
promise, which does law prohibit.
3. Ultra vires promise or representation: If the promise or representation made by
the officer is beyond his power, the State cannot be held liable for it on the basis of
the Principle of Promissory Estoppel.
4. Fraud : the doctrine of Promissory Estoppel is not applied in cases where the
promise from the Government is obtained by fraud.
5. Fraud on the Constitution: The doctrine of Promissory Estoppel is not applied in
cases when the promise or representation is obtained to play fraud on the
Constitution and enforcement would defeat or tend to defeat the Constitutional
goal.

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Define the term public corporation and explain its statutory and constitutional
position. (Dec-2015)
Explain : concept and importance of the public corporation. (Nov-2011, Oct-2013,
Nov-2014)

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Discuss : Classification of public corporation


Discuss : Rights and liabilities of public corporation
ANSWER :
Introduction:
The expression public corporation. It has no regular form and no specialized
function. It is employed wherever it is convenient to confer corporate personality.
In the famous word of president Franklin D. Roosevelt, the Public Corporation Is
clothed with the power of government but possessed of the flexibility and initiative
of a private enterprise.
A more comprehensive definition has been given by S. S. Khera, By State
economic activity carried on by the central government or by a state government
or jointly by the central government and state government, and a in each either
solely or in association with private enterprise so long as it is managed by a self-
contained management.
The main purpose of establishing public corporations is to promote economic
activity through autonomous bodies. With that object, these corporations have
been granted very wide powers and there is no interference by any authority in
exercise of these powers by the corporations. But it is also necessary that some
control over these corporations should be there so that the powers conferred on
such corporations may not be arbitrarily exercised or abused, and it may not
become the headless fourth organ of the Government.
Need for Public Corporation :
With the steady increase in state functions corresponding to the change in the
philosophy of state activity (from laissez faire to social welfare), it is generally an
accepted, that ownership of most of the natural resources and capital heavy
industries should increasingly rest in the state. In developing countries, state
intervention in economic and industrial enterprises has become almost compulsory
for various reasons. The major reasons for state intervention in economic activity
are as follows :
to build up an industrial infrastructure and raise productivity;
increase employment and general standard of living by accelerating national
growth and development;
to render needed services and cater to public utilities like power, transportation
and communication which are capital heavy investments and unprofitable under
private enterprises;
to provide sources of credit to finance agricultural and industry and trade; and
to reduce dependence on foreign capital and aid in the long run.
Areas of PC Activities : Public enterprises in our country cover a range of activities

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that is at once vast and varied. They are engaged :


directly or indirectly in advancing loans;
regulating trade;
organizing promotional land development activities;
manufacturing heavy machinery, machine tool;
instruments, electrical equipment, chemicals, drugs and fertilizers;
prospecting and drilling for oil laden refining crude oil;
operating air, sea land road transport;
mining of coal and mineral ores;
smelting and casing of steel and other metals;
production and distribution of mills, trading, markets, hotels, etc.
Organization of Public Undertakings : There is no one ideal form of organizing public
enterprises. In general, three main forms of organization, each with significant
variations, are now utilized for the administration of public enterprises, namely
Departmental Concerns,
Government Companies and
Public Corporations.
Characteristics of Public Corporation : Public corporation has been described by W. A.
Robson as The most important constitutional innovation of this century. The
principal characteristics of Public Corporation, according to the Rangoon Seminar
Report, are as follows ;
(i) It is wholly owned by the State
ii) It is generally created by, or pursuant to, a special law defining its powers,
duties and immunities and prescribing the form of management and its relation
to established departments and ministries.
iii) As a body corporate, it is a separate entity for legal purposes and can sue
and be sued, enter into contracts and acquire property its own name.
Corporations conducting business in their own names have been generally given
greater freedom in making contracts and acquiring and disposing of property in
its own name, compared to ordinary government departments.
iv) Except for government appropriations to provide capital or a to cover losses,
a public its funds from borrowing either from the Treasury or the public, or from
revenues derived from the sale of goods and services. It is authorized to use and
reuse its revenues.
v) It is generally exempted from most regulatory and prohibitory statues
applicable to expenditure of public funds.
vi) It is ordinarily not subject to the budget, accounting and audit laws, and

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procedures applicable to non-corporate agencies.


vii) In the majority of cases, employees of Public Corporations are not civil
servants, and are recruited and remunerated under terms and conditions which
the Corporation itself determines.
viii) The Government control over the financial matters relating to the public
corporation provides teeth to the governmental control of the public
corporations. Generally the Government is vested with the powers of controlling
the borrowing expenditure and capital formation. For example, the Oil and
Natural Gas Commission Act, 1956 provides that the Commission can borrow
money with the prior approval of the Central Government.
IMP ---> In view of the above discussion it becomes clear that these public
corporations are treated both as public authorities and as commercial concerns.
Constitutional/ legal position of a Public Corporation :
Constitutional position of a Public Corporation as either a Department of
Government or as a servant of the State may be summarized as below :
If the statute in terms answers the question (as it did in the case of the Central
Land Board under the Company & Town Planning Act, 1917), the need for any
further enquiry is obviated.
In the absence of such statutory declaration or provision, the intention of
Parliament as to be gathered from the provisions of the statute constituting the
Corporation.
Art-12 : It is to be also noted that a public corporation is included within the
meaning of State under Article 12 of the constitution and therefore the
Fundamental right can be enforced against it
Art-19 : A public corporation is a person but not citizen. And therefore it can claim
the benefit of the Fundamental Rights.
Art-32 and Art-226 : The public corporation or statutory corporations are included
with the meaning of other authorities and therefore it is subject to the writ
jurisdiction of the Supreme Court under Article 32 and of the High Court under
Article 226.
Art-299 : For the validity of the corporation contract, the requirements of a valid
contract laid down in Article 299 are not required to be complied with.
Art-311 : The public corporation (statutory corporation) is a body having an entity
separate and independent from the Government. It is not a department or organ of
the Government. Consequently, its employees are not regarded as Government
servants and therefore they are not entitled to the protection of Article 311.
Vicarious Liability of a Corporation : On principles of vicarious liability, corporation
is liable to pay damages for wrongs done by their officers or servants. They are
liable even for tort requiring a mental element as an ingredient, e.g. malicious

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prosecution. In India, local authorities like Municipalities and District Boards have
been held responsible for the tort committed by their servants or officers.
Grant of exemption to government companies from the application of a statutory
provision does not fall foul of Art. 14 and is not discriminatory as government
companies stand in a different class altogether and the classification made between
government companies and others is a valid one.
The employees of a public corporation are subject to the labour laws.
Benefits of Public Corporation :
The principal benefits of the Public Corporation as an organizational device are its
freedom from unsuitable government regulations and controls and its high degree
of operating and financial flexibility. In this form, one discerns a balance between
the autonomy and flexibility enjoyed by private enterprise and the responsibility of
the public as represented by elected members and legislators.
Problems of Public Corporation : Public Corporation has succeeded in solving a
number of problems. At the same time, however, it has created some others. Some of
the more pressing problems confronting the Public Corporations are:
Difficulty of reconciling autonomy of the corporation with public accountability.
That the Public Corporations cannot be made immune from ministerial control land
direction is universally conceded. But how to do it without infringing their corporate
autonomy has come into direct conflict with the urgent need for bringing the
operations of this Corporation into harmony with related actions of the
government.
Vacuum Removal from the so-called political pressures may mean, in fact, that the
significant political power is being placed in the hands of a small unrepresentative,
and in extreme cases, possibly even a self-perpetuating group controlling the Public
Corporations.
Conclusion :
The supreme considerations underlying the choice of Public Corporations in
preference to other forms of state enterprises are autonomy of the Corporations
must be scrupulously honored; the latter cannot be made wholly free from
responsibility to Parliament or from ministerial control. They are accountable to
Parliament at least on those matters, which lie under the control, direct or indirect,
of the Minister. Parliaments certainly entitled to discuss the general policies of the
Public Corporations, and the economy and efficiency of their administration.
However, day-to-day matters and details of administration must be left alone.
The need for reconciling autonomy of the Corporations with the accountability to
Parliament has been repeatedly emphasized .
The Supreme Court has recently underlined the principle of public accountability of
these enterprises (with reference to the life Insurance Corporation) in the following

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words :
Corporation which carries on the business of life insurance in the shape of a
statutory monopoly is answerable to the people of India with whose funds it
deals and to whose welfare it clams to cater".

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Write note : Parliamentary control on public corporation. (Nov-2012)


ANSWER :
Intro to Public Corporation :
<take it from elsewhere in this doc>
Means of Parliamentary Control :
Public corporations are created and owned by the State, financed from public funds
and many a time they enjoy full or partial monopoly in the industry, trade or
business concerned. As such, they are expected to exercise their powers in the
public interest. It is, therefore, necessary for Parliament to exercise some degree
and mode of control and supervision over these corporations. The methods adopted
to exercise such control are as follows :
1. Statutory provisions
2. Questions
3. Debates
4. Parliamentary Committees
1. Statutory provisions :
All public corporations are established by or under statutes enacted by Parliament
or State Legislatures. The powers to be exercised by such corporations can be
defined by them. If any corporation exceeds or abuses its powers, Parliament or
the State Legislature can dissolve, supersede or even abolish the said corporation.
Even though this type of control is not frequently employed, it is a salutary check
on the arbitrary exercise of power by the corporation. Parliament also exercises
effective control through technique of laying.
2. Questions :
Through this traditional method, the members of Parliament put questions relating
to the functions performed by public corporations to the Minister concerned. But
this method has not proved to be very effective because of the authority of public
corporations in their fields.
Accordingly, broad principles subject to which questions relating to these

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undertakings can be asked, have been laid down, namely, questions relating to
policy, an act or omission on the part of a Minister, or a matter of public interest
(even though seemingly pertaining to a matter of day-to-day administration or an
individual case), are ordinarily admissible. Questions which clearly relate to day-to-
day administration of the undertakings are normally not admissible.
3. Debates :
A more significant and effective method of parliamentary control is debate on the
affairs of a public corporation. Usually, this method is followed when annual
accounts and reports regarding the corporation are placed before Parliament for
discussion in accordance with the provisions of the statute concerned.
There is no general obligation on the part of all corporations to present their budget
estimates to Parliament. Estimates Committee, therefore, recommended that
corporations should prepare a performance and programme statement for the
budget year together with the previous year's statement and it should be made
available to Parliament at the time of the annual budget.
4. Parliamentary Committees :
This is the most effective form of parliamentary control and supervision over the
affairs conducted by public corporations. Parliament is a busy body and it is not
possible for it to go into details about the working of these corporations. Parliament
has, therefore, constituted the Committee on Public Undertakings in 1964.
The functions of the Committee are to examine the reports and accounts of the
public undertakings, to examine the reports, if any, of the Comptroller and Auditor-
General on the public corporations, to examine in the context of the autonomy and
efficiency of the public corporations, whether their affairs are being managed in
accordance with sound business principles and prudent commercial practices.
The recommendations of the Committee are advisory and, therefore, not binding
on the Government. Yet, by convention, they are regarded as the
recommendations by Parliament itself, and the Government accepts those
recommendations; and in case of non-acceptance of the recommendations of the
Committee, the ministry concerned has to give reasons therefor.
Conclusions :
No doubt, parliamentary control over the public corporations is "diffuse and
haphazard", yet it is the duty of Parliament to ensure that if a corporation is
exercising too great a measure of freedom, it should be brought to heel.
The whole purpose of establishing an autonomous undertaking is to make it free, in
its daily working from detailed scrutiny by members of Parliament. But since the
functions carried on by these undertakings are of public concern and to be
performed in public interest, Parliament cannot completely absolve itself of its
controlling function.

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It is, therefore, necessary that leaving the matters relating to day-to-day


administration to the corporations, there must be overall supervision in important
policy matters by Parliament.

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Write note : vigilance commission. (Nov-2012, Oct-2013, Dec-2015)


Explain in detail the powers and functions of Vigilance Commission with case laws.
(Dec-2016)
ANSWER :
Intro :
In any system of government, improvements in the grievance redressal machinery
have always engaged the attention of the people. This system no matter,
howsoever, ineffective completely fails when inertia and corruption filter from the
top.
It was against this backdrop that the establishment of the Central vigilance
Commission (CVC) was recommended by the Committee on Prevention of
Corruption, the Santhanam Committee. The committee was appointed in 1962. It
recommended the establishment of a Central Vigilance Commission as the highest
authority at the head of the existing anti-corruption organization consisting of the
Directorate of General Complaints and Redress, the Directorate of Vigilance and the
Central Police Organization.
The jurisdiction of the Commission and its powers are co-extensive with the
executive powers of the Center. The government servants employed in the various
ministries, and departments of the Government of India and the Union territories,
the employees of public sector undertakings, and nationalized banks, have been
kept within its purview.
The Commission has confined itself to cases pertaining only:
(i) to gazetted officers, and
(ii) employers of public undertakings and nationalized banks, etc. drawing a
basic pay of Rs. 1,000 per month and above.
Service Conditions and Appointment of Vigilance Commissioner :-
Appointment : The Central Vigilance Commissioner is to be appointed by the
President of India. He has the same security of tenure as a member of the Union
Public Service Commission. Originally he used to hold office for six years but now
as a result of the resolution of the Government in 1977, his interest for not more
than two years. After the Commissioner has ceased to hold office, he cannot accept

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any employment in the Union or State Government or any political, public office.
Removal : CVC can be removed or suspended from the office by the President on
the ground of misbehavior but only after the Supreme Court has held an inquiry
into his case and recommended action against him.
Procedure followed by CVC :
The Commission receives complaints from individual persons.
CVC also gathers information about corruption and malpractices or misconduct
from various sources, such as, press reports, information given by the members of
parliament in their speeches made in parliament, audit objections, information or
comments appearing in the reports of parliamentary committees, Audit Reports
and information coming to its knowledge through Central Bureau of Investigation.
CVC also welcomes the assistance of voluntary organizations like Sadachar Samiti
and responsible citizens and the press.
The Commission often receives complaints pertaining to matters falling within the
scope of the State Governments. Where considered suitable, such complaints are
brought to the notice of state vigilance commissioners concerned for necessary
action. Similarly, state SVCs forward complaints received by the State Vigilance
Commission in regard to matter falling within the jurisdiction of the Central
Government, to the Central Vigilance Commission for appropriate action.
The Central vigilance Commission has the following alternatives to deal with these
complaints :
a) It may entrust the matter for inquiry to the administrative Ministry/
Department concerned.
b) It may ask the Central Bureau of Investigation (C. B. I) to make an enquiry.
c) It may ask the Director of the C. B. I to register a case and investigate it.
Judicial activism :
CVC had been given jurisdiction and power to conduct an enquiry into transaction
in which publics servant are suspected of impropriety and corruption including
misconduct, misdemeanor, lack of integrity and malpractices against civil servants.
And the Central Bureau of Investigation (CBI) in its operations assisted the
Commission.
The CVC has taken a serious note for the growing preoccupation of the CBI with
work other than vigilance. Thus when the CBI is extensively used for non-
corruption investigation work such as drug-trafficking, smuggling and murders it
hampers the work of the CVC.
But how effective this institution has proved in uprooting corruption depends on
various factors, the most important being the earnestness on the part of the
government, citizens and institutions to clean public life .

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In its efforts to check corruption in public life and to provide good governance the
Apex Court recommended measures of far-arching consequences while disposing a
public interest litigation petition on the Jain Hawala Case. Three Judge Bench
separated four major investigating agencies from the control of the executive.
These agencies are :
Central Bureau of Investigation;
Enforcement Directorate;
Revenue Intelligence Department and
The Central Vigilance Commission.
The Court has shifted the CBI under the administrative control of the CVC. The
Central Vigilance Commission, until now, was under the Home Ministry entrusted
with the task of bringing to book cases of corruption and sundry wrongdoings and
suggesting departmental action. Now the CVC is to be the umbrella agency and
would coordinate the work of three other investigating arms.
In order to give effect to the view of the Supreme Court, the government issued an
ordinance on August 25, 1998. However, this measure had diluted the views of the
Supreme Court by pitting one view against the other. Therefore, what ought to
have been visualized as a reformative step had begun to seen as a cleaver
bureaucratic legalese.
It was when the Supreme Court expressed concern over these aspects of the
Ordinance in the hearing relating to its validity that the government decided to
amend the Ordinance and thus, on October 27, 1998 Central Vigilance Commission
(Amendment) Ordinance was issued. The Commission was made a four-member
body and its membership was opened to others, besides bureaucrats.
In the same manner the single directive of prior permission was deleted and the
membership of Secretary Personnel, Government of India was deleted.
Conclusion :
It is too early to comment on the functioning of the reconstituted statutory Central
Vigilance Commission but one thing is certain that no commission can root out
corruption, which has sunk so deep in the body politic. It can only act as a
facilitator and propellant.

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Write note : Doctrine of legitimate expectation. (Nov-2012)


ANSWER :
There is an overlap of Modules-3.1 and 4.5.

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Also refer to Explain : Controls on the discretionary powers of the


administrators. (Nov-2011)
Judicial review of exercise of administrative discretion is required under following
situations,
A) Ultra vires exercise of discretion, ie exercise being in excess of the delegated
authority,
B) Failure to exercise Discretion.
C) Abuse of Discretion (malafide).
D) Doctrine of Legitimate expectation as ground of judicial review.
Amongst these situations, the last one, "doctrine of legitimate expectation", is
developing sharply in recent times. The concept of legitimate expectation in
administrative law has now, undoubtedly, gained sufficient importance. It is stated
that the legitimate expectation is the latest recruit to a long list of concepts fashioned
by the courts for the review of administrative action and this creation takes its place
besides such principles as the rules of natural justice, unreasonableness, the fiduciary
duty of local authorities and in future, perhaps, the unreasonableness, the
proportionality.
The doctrine of legitimate expectation is to be confined mostly to right of fair hearing
before a decision, which results in negativing a promise, or withdrawing an
undertaking is taken.
The doctrine does not give scope to claim relief straightaway from the administrative
authorities as no crystallized right as such is involved.
A case of legitimate expectation would arise when a body by representation or by past
practice aroused expectation, which it would be within its powers to fulfill. The
protection is limited to that extent and a judicial review can be within those limits.
A person, who bases his claim on the doctrine of legitimate expectation, in the first
instance, must satisfy that there is foundation and thus he has locus standi to make
such a claim.
If a denial of legitimate expectation in a given case amounts to denial of right
guaranteed or arbitrary, discriminatory unfair or biased, gross abuse of power or
violation of principles of natural justice, the same can be questioned on the well
known grounds attracting Article 14 but a claim based on mere legitimate expectation
without any thing more cannot ipso facto give a right to invoke these principles.
It can be one of the grounds to consider but the court must lift the veil and see
whether the decision is violative of these principles warranting interference. It
depends very much on the facts and the concept of legitimate expectation which is
the latest recruit to a long list of concepts fashioned by the courts for the review of
administrative action
The judicial review must be restricted to the general legal limitations applicable and

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binding the manner of the future exercise of administrative power in a particular case.
It follows that the concept of legitimate expectation is not the key which unlocks the
treasury of natural justice and it ought not to unlock the gate which shuts, the court
out of review on the merits, particularly when the element of speculation and
uncertainly is inherent in that very concept.
Case-law :
In Union of India v. Hindustan Development Corporations, ( 1993 3SCC 499 ) the
court held that it only operates in public law field and provides locus standi for
judicial review. Its denial is a ground for challenging the decision but denial can be
justified by showing some overriding public interest.
In the instant case, question arose regarding the validity of the dual policy of the
government in the matter of contracts with private parties for supply of goods.
There was no fixed procedure for fixation of price and allotment of quality to be
supplied by the big and small suppliers. The government adopted a dual price
policy, lower price for big suppliers and higher price for small suppliers in public
interest and allotment of quantity by suitably adjusting the same so as to break
the cartel.
The court held that this does not involve denial of any legitimate expectation.
The court observed : legitimate expectations may come in various forms and
owe their existence to different kind of circumstances and it is not possible to
give an exhaustive list in the context of vast and fast expansion of governmental
activities. By and large they arise in cases of promotions, which are in normal
course expected, though not guaranteed by way of statutory right, in cases of
contracts, distribution of largess by the Government and in somewhat similar
situations.
In Food Corporation of India v. M/s. Kamdhenu Cattle Seed Industries AIR 1993 SC
1601, the doctrine of legitimate expectation gets assimilated in the rule of law and
operates in our legal system in this manner and this extent.
The Court observed : The mere reasonable or legitimate expectation of a
citizen, in such a situation, may not by itself be a distinct enforceable right, but
failure to consider and give due weight to it may render the decision arbitrary,
and this is how the requirement of due consideration of a legitimate expectation
forms part of the principle of non-arbitrariness, a necessary concomitant of the
rule of law.
Every legitimate expectation is a relevant factor requiring due consideration in a
fair decision-making process.
In Lala Sachinder Kumar v. Patna Regional Development Authority, (AIR 1994
PATNA 128) the court again applied the doctrine of legitimate expectation and held
the order of allotment of residential plots issued by the Patna Regional
Development Authority as bad. In the instant case Regional Development Authority

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issued an advertisement inviting applications for the allotment of residential plots.


In this process preference was given to the employees of the Patna Regional
Development Authority without considering the case of applicant petitioner,
whereas Rules did not provide for any such preferential allotment. The court held
that allotment in favour of employees is arbitrary. The applicant petitioner has
legitimate expectations to be considered for allotment.

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Discuss : Doctrine of unjust enrichment.


ANSWER :
https://en.wikipedia.org/wiki/Unjust_enrichment
What is 'unjust enrichment' ?
The expression 'unjust enrichment' is not defined either in the Constitution or in
any other statute. Stated simply, 'unjust enrichment' means retention of a benefit
by a person that is unjust or inequitable.
Unjust enrichment occurs when a person retains money or benefits which in
justice, equity and good conscience, belong to someone else.
Evolution :
The concept of unjust enrichment can be traced to Roman law and the maxim that
"no one should be benefited at another's expense": nemo locupletari potest aliena
iactura or nemo locupletari debet cum aliena iactura.
Unjust enrichment is a legal concept referring to situations in which one person is
enriched at the expense of another in circumstances which the law treats as unjust.
Where an individual is unjustly enriched, the law imposes an obligation upon the
recipient to make restitution, subject to defences such as change of position.
Liability for an unjust (or unjustified) enrichment arises irrespective of wrongdoing
on the part of the recipient.
Cases of unjust (or unjustified) enrichment can be examined in the following way :
Was the defendant enriched?
Was the enrichment at the expense of the claimant?
Was the enrichment unjust ?
Does the defendant have a defence?
What remedies are available to the claimant?
Remedies for unjust enrichment :
The remedy for unjust enrichment is restitution: the restoration of that which was

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conferred to the claimant. In short, the correcting of the injustice which occurred
when the claimant suffered a subtraction from his or her wealth and the defendant
received corresponding benefit. Restitution can take the form of a personal or a
proprietary remedy. The defendant is ordered to pay the money value of the
benefit received. This personal money award is the typical form of restitution
ordered.
Comparison with Doctrine of restitution :
The Doctrine of unjust enrichment is an equitable principle and prevents a person
from enriching at the cost of another. Generally speaking, the mere receipt of a
benefit from another is unobjectionable and does not attract legal consequences.
The exception is where such receipt is 'unjust' or 'unjustified'. Both civilian and
common law legal systems have bodies of law providing remedies to reverse such
enrichment.
The doctrine of unjust enrichment is just and salutary in nature. It is based on the
principle that no person can get benefit when he has not suffered a loss. The
juristic basis of the obligation is not founded upon any contract or tort but upon a
third category of law, namely quasi-contract or the doctrine of restitution.
The law of unjust enrichment is closely related to, but not co-extensive with, the
law of restitution. The law of restitution is the law of gain-based recovery. It is
wider than the law of unjust enrichment. Restitution for unjust enrichment is a
subset of the law of restitution in the same way that compensation for breach of
contract is a subset of the law relating to compensation.
In Orient Paper Mills Ltd. v. State of Orissa, the Supreme Court did not grant refund
to a dealer since he had already passed on the burden to the purchaser. It was
observed that it was open to the Legislature to make a provision that an amount of
illegal tax paid by the persons could be claimed only by them and not by the dealer
and such restriction on the right of the dealer to obtain refund could lawfully be
imposed in the interests of general public.

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*** End-of-Compilation ***


Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.

Suggested Reading :

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C. K. Thakker, Administrative Law


C. K. Takwani, Lectures on Administrative Law, Eastern Book Co.
C. K. Allen, Law & Orders D.D. Basu, Comparative Administrative law
M.A. Fazal, Judicial Control of Administrative Action in India , Pakistan and Bangladesh,
Butterworths - India.
Franks, Reports of the Committee on Administrative Tribunals and Inquiries HMSO, 1959
Peter Cane An Introduction to Administrative Law, Oxford.
Wade, Administrative law (Seventh Edition, Indian Print, Universal, Delhi.
J.C. Garner, Administratived Law, Butterworths (ed. B. L. Jones)
M. P. Jain, Cases and Materials on Indian Administrative Law, Vol. I and II Supplement
S. P. Sathe, Administrative Law
B.Schwartz, An Introduction to American Administrative Law
Indian Law Institute, Cases and Materials on Administrative Law in India, Vo. I Delhi.

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