Short notes

1) Write a brief note on doctrine of separation of power.

The theory of separation of power has engaged in several forms at different periods. It
was originated by Aristotle and it was developed by locke. In the 16 th and 17th centuries,
French Philosopher Jhon. Bodin and british politician Locke respectively had expressed their
views about the theory of separation of powers. The rule of separation of power was
expounded for the first time by the French Jurist, Montesquieu. He formulated this theory in his
famous book The Spirit of laws published in 1748. According to him, there are three main
organs of the government in a State namely,

i) The Legislature;
ii) The Executive;
iii) The Judiciary.

According to this theory of separation of powers, these three powers and functions of the
Government in a free democracy must be kept separate organs of the Government.

According to Prof.Dicey, rules of law contains three principles.

i) Supremacy of Law,
ii) Equality before Law,
iii) Predominance of Legal Spirit.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the
basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by
Parliament. It is also regarded as a part of natural justice.

2) Droit Administratif:-

French Administratif law is known as Droit Administratif. It means a body of rules, which
determine the organization, powers and duties of public administration and regulate the
relation of the administration with the citizens of the country. It does not represent rules and
principles enacted by Parliament. It contains the rules developed by the administrative courts.

In the French legal system, droit administratif, there are two types of laws and two sets of
courts independent of each other. The ordinary courts administer the ordinary civil law as
between subjects and subjects. The administrative courts administer the law as between the
subject and the state. An administrative authority or official is not subject to the jurisdiction of
the ordinary civil courts exercising powers under the civil law in disputes between the private
individuals. All claims and disputes in which these authorities or officials are parties fall outside
the scope of the jurisdiction of ordinary courts and they must be dealt with and decided by the
special tribunals.

Following are the main features of Droit Administratif.

1) Dual system of Courts- Separate administrative Courts.

2) Conseil d Etate.
3) Tribunal des conflicts; and
4) Application of Special rules.

3) Write a note on Sub-delegation.

Delegated Legislation means Confering ones power of law making to another, or

extension of law making power to the executive by the Legislature. If the Executive, i.e. the
Delegated further delegates such power to any subordinate authority or agency, it is called
Sub-Delegation. The authority which confers law-making power on delegate is called
Parent or delegate and the further delegates are called Children.

There is a well-known maxim, which criticizes sub-delegation. It is Delegatus non

protest delegare, which means, a delegate cannot further delegate. This Principle applies
in case of delegated legislation also unless there is an express or implied provision to that
effect. It is also contended that sub-delegation is against principles of rule of law and
Parliamentary Sovereignty.

In India also, the principle of sub-delegation is not accepted unless there is an express or
implied provision by the statute.

Ganapati v/s State of Azmeer- In this case, the Parent Act conferred on the Chief
Commissioner to frame rules for proper system of conservancy and sanitation at fairs. The
rules made by the Chief Commissioner were further conferred on the District Magistrate to
devise his own system. The Supreme Court held the rules framed by the District Magistrate
Ultra vires.
 4) What are Administrative Discretion?

The word discretion implies power to make a choice between alternative

courses of action. According to Coke, discretion is a science or understanding to discern
between falsity and truth, between right and wrong and not to do according to will and
private affection. In the words of Mr.Justice Frankfurter, Discretion without a criterion
is authorization of arbitrariness.

Dicey defines:- where ever there is discretion, there is room for arbitrariness
and that in a republic no less than under a monarchy discretionary authority on the part
of the government must mean insecurity for legal freedom on the part of its subject.

Types of Discretion:-

i) Subjective Satisfaction and,

ii) Objective Satisfaction.

Subjective Satisfaction;- Where the statute empowers the administrative authority to set
its own limits to determine the criteria for a decision, such type of discretion is called subjective
satisfaction type.

power itself imposes defined or ascertained predetermined criteria, with the help of which
the decision maker must make his choice, it is called objective satisfaction type of discretion.

5) What is Speaking Order.

A reasoned decision means a decision which must contain reasons in support of it. The
value of reasoned decision as a check upon the arbitrary use of administrative power is quite
cleat. A party has right to know not only the result of injury but also the reasons in support of
the decision.

Natural Justice postulates that party has right to know not only the decision but also the
reasons. But this is not a Universally established rule although in certain situations it is rigidly
enforced. The duty to give reasons may be statutory or non-statutory requirement, the Courts
have been emphatic to advice judicial or quasi-judicial bodies to assign reasons in such a form
as to justify the orders being called what are described as speaking orders.

A speaking order means an order which speaks by itself. Thus every order must contain
reasons for support of it. Speaking orders are necessary to make judicial review effective. The
affected party must know why and on what grounds an order has been passed against him. This
is a cardinal principle of natural justice.
 6) University cancels the degree of a student without giving him any opportunity to
defend him himself. Examine the validity of cancelation.

In the above problem the university did not followed the principle of natural justice. Before
taking action it give an opportunity to the person under natural justice, that is Audi Alteram
Partem means hear the other side. Under this principle two things important 1) Notice, and
2) Hearing. So the action taken by the University is not correct according to Natural justice.

7) Distinguish between Court and Tribunal.

Court Tribunal

The Institution of Court is traditional. The Institution of tribunal is of recent development

Court deals with all matters including Tribunal deals with service matters only.
Service matters.

It is presided over by a person, who is It is presided over by an expert in law in certain

An expert in law/ legally qualified. Cases and in other cases by an official not trained
In law.

The decision of the Court is Objective The decision of the Tribunal is subjective.
A Court is vested with jurisdiction over It is vested with limited jurisdiction to decide
All matters, civil and criminal. Particular cases only.

Court has to follow the procedural It need not follow the procedural laws.
Laws viz, C.P.C, Cr.P.C, etc.

8) Define Administrative Discretion.

The general rule is that Courts should not interfere with actions taken in exercise of
discretionary powers by the administrative authorities. While disposing the case Westminster
Corporation v/s. London & North Western Rly. Co. 1905 expressed as follows: Where the
Legislature has conferred the power to a particular body, with a discretion how it is to be used,
it is beyond the power of any Court to contest that discretion.

The Supreme Court of India also expressed the similar views in a number of cases, viz.
Gopalan v/s State of Madras AIR 1950 SC27, Lakshanpal v/s Union of India AIR1967SC 908, etc.
 However, unfettered and vast discretionary powers on the administrative authorities leads
to mal-administration, corruption, suppression and atrocities. Therefore, there should be
judicial control/ review over the decisions given in exercise of discretionary powers by the
administrative authorities.

9) Write a note on Central Vigilance Commission.

In any society where there is a system of government, improvements in the grievance

machinery have always engaged the attention of the people. This is true to India as well. A
serious problem afflicting the Indian polity is that corruption filters from the top. Corruption
in administration distorts the decision-making process and gives rise to all kinds of vices.
People require incorruptibility in the administration of government departments.

The Santhanam Committee had recommended that the Commission should be

concerned with two major problems facing the administration.

i) Prevention of Corruption and maintenance of integrity amongst the government

servants, and
ii) Ensuring just and fair exercise of administrative powers.

Jurisdiction:- The Vigilance Commission has jurisdiction in respect of matters to

which the executive power of the Centre extends. The powers of the Commission are
set out in the resolution under which it is established. It exercises general control and
supervision over the Vigilance and anti-corruption work carried on in various Ministers,
departments and public undertakings.

Functions:- On receiving complaints, the Commission refers them either to the

CBI or the concerned Ministry/ Department for investigation. After investigation, these
bodies send their report to the Commission for Advice. Thus, the Commission does not
investigate the complaint. It depends on other organizations for the purpose. But there
is one exception. The Chief Technical Examiners Organization attached to it conducts
technical examination of public works including checking of bills of contracts, contracts
and muster rolls.

10) Make a note on Lokayukta in State.

Ombudsman means the grievance man or a Commissioner of the Administration. A

precise definition of Ombudsman cannot be given. But Garner rightly states that he is 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.

According to Prof. S.K.Agarwal, the term Ombudsman refers only to institutions which
have three basic and unique characteristics.

a) Ombudsman is an independent and non-partisan officer of the legislature who

supervises the administration,
b) He deals with specific complaints from the public against administrative injustice
and mal-administration,
c) He has the power to investigate, criticize and report back to the legislature, but not
to reverse administrative action.

Lokayukta in States:-

While the idea of establishing the institution of Lokpal at the Centre has proved
abortive, a number of States have adopted the Ombudsman system by enacting Lokayukta
laws, e.g. Uttar Pradesh Lokayukta and Upalokayukta Act, 1975, Madhya Pradesh Lokayukta
evam Upalokayuka, 1981, Karnataka Lokayukta Act, 1984.

The Object of the Act is to check and control the corrupt practices of the executive
authorities. The working of the Institution of Lokayukta in various States reveals that, it is a
friend, helper and rescuer not only to the aggrieved citizens, but also to the honest
servants. Despite the fact of achieving certain objects, the institution of Lokayukta is found
to be a failure for certain reasons namely faulty and inadequate legislation, non-
cooperation of various Government Department etc. If these constraints are removed,
there is a good possibility for the sound system are removed, there is a good possibility for
the sound system of Lokayukta in India.