Administrative Law K-303

ADMINISTRATIVE LAW
K-303
CONTENTS
UNIT - I ADMINISTRATIVE LAW

- Definition, Nature and Scope of Administrative Law
- Growth of Administrative Law with Special Reference to India
- Doctrine of Separation of Powers
- Concept of the Rule of Law
IMPORTANT QUESTIONS
UNIT - II CLASSIFICATION OF ADMINISTRATIVE ACTION

- Quasi-Legislative
- Quasi-Judicial
- Administrative Action
- Administrative Instructions
- Administrative Directions
- Rule of Natural Justice
- Rule Against Bias
- Audi Alterm Partem
- Reasoned Decisioned
IMPORTANT QUESTIONS
UNIT -III Legislative Powers of Administration

- Delegated Legislation
- Necessity
- Constitutionality & Requirement for Validity of Delegated Legislation
- Sub-delegation of Legislatives Powers
- Control over Delegated Legislation
IMPORTANT QUESTIONS
UNIT -IV JUDICIAL CONTROL OF ADMINISTRATIVE ACTIONS

- Prepogative Remedies
- Writs
- PIL
- Declaration
- Injunction
- Liability of Government
- Contractual Liability
- Tortious Liability
- Ombudsman-Lok Pal, Lok Ayukta
IMPORTANT QUESTIONS
UNIT -V PUBLIC CORPORATION AND PUBLIC UNDERTAKING
- Legal Liability
- Characteristics
- Control Over Public Corporation s
- Administrative Tribunals
- Constitutional Status
- Distinction between Administrative Tribunal and Courts
- Protection of Civil Servants under constitution of India
IMPORTANT QUESTIONS
SUGGESTED READINGS
STUDENTS ASSIGNMENT
Strictly for Internal Circulation - KCL
UNIT - I
ADMINISTRATIVE LAW
Introduction: Administrative Law has been characterized as the most outstanding legal development of
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the 20th century." It does not mean: however that the concept of administration was not in existence in any
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country before the 20 century. It is as ancient as the administration itself. Today, the administration is
ubiquitous and impinges freely and deeply on every aspect of individual's life. Therefore, administrative law
has become a major area for study and research.'
In every country, there must be a perfect administrative machinery which helps to maintain law and order in
the society and also it is an instrument which facilitates the concept of welfare state in the country. The
emergence of social welfare concept has affected the democracies very profoundly. It has led to State
activism. The functions of modern State may broadly be places into the following categories; the State as a
protector, provider, entrepreneur, economic controller and arbiter. A State consist of 3 organs-legislative,
judiciary and executive. While increase in State activities has meant increased' work for all the organs, the
largest extension in depth and range of functions and powers has taken place at the level of executive-cum-
administrative organ. Administration is the all-pervading feature of life today.
In the modern democratic society administrative law has acquired an immense accession of power and has
come to discharge functions which are varied and multifarious in scope, nature and ambit. In the words of
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Robson, the hegemony of the executive is now an accomplished fact . The increase in administrative
functions has created a vast new complex of relation between the administration and the citizen. There is
not a moment of a person's existence when he is not in contact with the administration in one way or the
other.
In such a context, a study of administrative law become of great significance. A careful and systemic study
and development of administrative law becomes a desideratum as administrative law is an instrument of
control of the exercise of administrative powers.
DEFINITION, NATURE AND SCOPE OF ADMINISTRATIVE LAW
Administrative law is a progressive branch and it is not possible to confine the meaning of administrative
process in some words. Many scholars and jurists define the administrative law with their different
approaches.
According to American scholar, Kenneth Culp Davis, administrative law is the law concerning the powers
and procedures of administrative agencies, including especially the law governing judicial review of
administrative action. It does not include the enormous mass of substantive law ill produced by the
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agencies.
Dicey has defined administrative law as denoting that portion of a nation's legal system which determines:
the legal status and liabilities of all the State officials, which defines the rights and liabilities of all private
individuals in their dealing with public officials and which specifies the procedure by which those rights and
liabilities are enforced. Dicey's formulation refers primarily to one aspect of administrative law i.e. control of
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public officials. Dicey formulated his definition with droit administrative in view.
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Sir Ivor Jennings defines administrative law as the law relating to the administration. It determines the
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organisation, powers and the duties [of administrative authorities.
The unenviable diversity in definitions of the term 'administrative law' is also due to the fact that every
administrative law specialist tries to lay more emphasis on anyone particular aspect of the whole
administrative process which, according to his own evaluation, deserves singular attention.
A satisfactory and a proper formulation to define the scope, content and ambit of administrative law appears
to be as follows- "Administrative law deals with the structure, power and functions of the organs of
administration; the limits of their power, the procedure and method in execution of their power and
functions; methods to control their powers including the legal remedies available to the person aggrieved in
case of infringement of his right. Principles of administrative law emerge and develop whenever and
wherever any person becomes the victim of arbitrary exercise of public power. Therefore, it will not be
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incorrect to say that no one can specialize in administrative law.
GROWTH OF ADMINISTRATIVE LAW WITH SPECIAL REFERENCE TO INDIA
Administrative law is a by-product of intensive form of government. In the present scenario, the role of
government has changed in almost every country of the world. Today there is a demand by the people that
government must solve their problems rather than merely define their rights. It is felt 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 re-
employed. In the same manner the equality clause in the Indian constitution would become meaningless,
unless the government comes forward to actively help the weaker sections of society to bring about equality
in fact. This implies the growth of administrative law and process.
The philosophy of welfare State has been specially embodied in the constitution of India. Constitution itself
provides social, economic and political justice, equality of status and opportunity to all the citizens of India.
For the implementation of all these objects the State is given power to impose reasonable restrictions even
on the fundamental rights guaranteed by the constitution. Where there is a conflict between the societal
interest and individual interest, the societal interest will prevail over individual interest: State has a duty to
protect the individual interest as well as societal interest and maintain a balance between two.
Thus, on the one hand, the activities and powers of the Government and administrative authorities have
increased and, on the other hand, there is greater need for the enforcement of the rule of law and judicial
review over these powers, so that the citizens should be free to enjoy the liberty guaranteed to them by the
constitution. For this purpose, provisions are made in the statues giving right of appeal, revision etc and at
the same time extraordinary remedies are available to them under Articles 32, 226 and 227 of the
constitution of India. The principle of judicial review is also accepted in our constitution and the orders
passed by the administrative authorities can be quashed and set aside if they are malafide or ultravires of
the Act or the provisions of the constitution. And if the rules, regulations or orders passed by these
authorities are not within their powers, they can be declared ultravires, unconstitutional, illegal or void.
Reasons for the Growth of Administrative Law: The following factors are responsible for the rapid
growth and development of administrative law-
1. State has opted for the positive policy and as a welfare state has undertaken to perform varied
functions and to perform these functions properly, there is a need of wide administrative
functionaries with some powers, which is resulted into the growth of Administrative law.
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2. It is not possible to decide and settle all the matters in dispute by the judicial system. It was already
overburdened, and it was not possible to expect speedy disposal of even very important matters,
e.g. lookout, strikes etc. Therefore, industrial tribunals and labour courts over established, which
possessed the techniques and expertise to handle these complex problems.
3. It is not possible that legislature laid down each and every detailed rule and previsions. They were
found to be inadequate and therefore, it was felt necessary to delegate some powers to the
administrative authorities.
4. There is a scope for experiments in the administrative process. The rules and regulations can be
made for a certain period. They can be altered or modified within a short period according to the
changing circumstances. Thus, legislature is rigid in character while administrative process is
flexible.
5. The administrative authorities can avoid technicalities. For instance, administrative tribunals are
not bound by the rules of evidence and procedure, and they can take a practical view of the matter to
decide complex problems.
6. Administrative authorities can take preventive measures and effective steps for enforcement of the
preventive measures which are not generally available through regular courts of law.
Difference between Constitutional Law and Administrative Law: Earlier, there was no difference
between administrative law and constitutional law. Therefore, Keith observed- "It is logically impossible to
distinguish administrative from constitutional law and all attempts to do so are artificial". However,
according to Holland, the constitutional law describes them in motion. Therefore, according to this view, the
structure of the legislature and the executive comes within the purview of the constitutional law but their
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functions come within the purview of administrative law.
According to Sir Ivor Jennings, administrative law deals with the organisation, functions, powers and duties
of administrative authorities while constitutional law deals with the general principles relating to the powers
and organisation of the various organs of the State and their mutual relationship and relationship of these
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organs with the individuals.
It can be said that constitutional law is concerned with the rights, and administrative law lays emphasis on
public needs. However, the dividing line between constitutional law and the administrative law is matter of
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convenience because every student of administrative law has to study some constitutional law.
In the countries which have written constitution like India, the difference between constitutional law and
Administrative law is not a problem. In such countries the source of constitutional law is the constitution
while the source of administrative law may be statutes, statutory instruments, precedents and customs;
though, at times, disciplines of constitutional law and administrative law may overlap.
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. It may also include the
study of those administrative agencies which are provided for by the constitution itself, i.e. Interstate
Council, Article 263, Finance Commission, Article 280; Interstate Water Dispute Authority, Article 262;
Public Service Commissions, Article 315 and Election Commission, Article 324. It may be further include
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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.
DOCTRINE OF SEPARATION OF POWERS
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General: According to M.P. Jain : "If the 'Rule of Law' as enunciated by Dicey affected the growth of
Administrative Law in Britain, the doctrine of 'separation of powers' had an intimate impact on the
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development of Administrative Law in the U.S.A." Davis also stated: "Probably, the principal doctrinal
barrier to the development of the administrative process has been the theory of separation of powers."
Meaning: There are three main organs of the government in the State-(i) the legislature (ii) the executive
and (iii) the judiciary. According to the theory of separation of powers, these three powers and functions of
the Govt. must, in a free democracy, always be kept separate and be exercised by the separate organs of
the Government. The theory of separation of powers signifies three formulations of structural classification
of governmental powers-
1. The same person should not form part of more than one of the three organs of the government.
2. For example Ministry should not sit in parliament.
3. One organ of the govt. should not interfere with any other organ of the govt.
4. One organ of the govt. should not exercise the functions assigned to any other organ.
Separation of Powers in England: In England, the first formulation of the theory of 'separation of power is
negated by the concept of 'parliamentary executive' that the same person should not form part of more than
one of the three organs of the govt. For instance, the king, though an executive head, is also an integral part
of the legislature and all his ministers are also members of one or other of the house of parliament. As
regards the second formulation, it is clear that the House of Commons ultimately controls the executive.
The judiciary is independent but the judges of the superior courts can be removed. on an address from both
Houses of Parliament. As to the exercise by one organ of the functions of the other organs, no separation
exists in England.
Separation of Powers in U.S.A.: In USA "separation of powers" is the foundation stone of the constitution
of America. Article 1 section 1 vests all legislative powers in the congress. Article 11 section 1 vests all
executive powers in the President of the United States. Article 111 section 1 vests all the judicial powers in
the Supreme Court. The constitution of America has not given overriding power of judicial review to the
Supreme Court. Supreme Court has no power to decide political questions, so that the court may not
interfere with the exercise of power of executive organ of the government. However, American
constitutional development has shown that in the face of the complexity of modern governments, strict
structural classification of the powers is not possible. The President has veto power through which he can
interfere with the exercise of powers by the Congress. He can interfere with the functioning of the Supreme
Court through the exercise of his power to appoint judges. Congress also interferes with the power of
President through vote on budget, approval of appointments by the senate and ratification of treaty.
Congress also interferes with the exercise of powers by the courts by passing procedural laws, creating
special courts and by appointing judges. In its turn, the judiciary interferes with the powers of the congress
and the President through the exercise of its power of judicial review.
Separation of Powers in India: In India, the doctrine of, separation of powers has not been accorded a
constitutional status. Apart from the directive principles laid down in Article 50 which enjoins separation of
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judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic
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division powers.
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The Supreme Court in Ram Jawaya Kapur Vs State of Punjab, held;
"Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity
but the functions of the different parts or branches of the 'government have been sufficiently differentiated. "
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In India Nehru Gandhi Vs Raj Narain, Ray , Chief Justice also observed that in the Indian Constitution there
is separation of powers in a broad sense only.
In India, not only is there a functional overlapping but there is personnel overlapping also. The constitution
has invested the constitutional courts with the power to invalidate laws made by Parliament and State
legislature transgressing constitutional limitations. Legislature can re-enact the law with certain
amendments in that law. This new law or the amended law so made can be challenged on other grounds
again but not on the ground that it seeks to in effectuate or circumvent the decision of the court. This is what
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is meant by 'check and balance' inherent in a system of government incorporating separation of powers.
From the above discussion it becomes clear that the doctrine in its classical sense which is structural rather
than functional cannot be literally applied to any modern government because neither the powers of the
government can be kept in watertight compartments nor can any government run on strict separation of
powers.
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In Indira Nehru Gandhi v. Raj Narain , Justice Chandrachud also observed that the" political usefulness of
the doctrine of separation of powers is now widely recognised." No constitution can survive without a
conscious adherence to its fine checks and balances. The principle of separation of powers is a principle of
restraint which has in it the precept, innate in the prudence of self preservation ... that discretion is the better
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part of valour."
In conclusion, "Doctrine of separation of powers" in today's context of Iiberalisation privatisation and

globalisation cannot be interpreted to mean either 'separation of powers' or 'check and balance' or 'principle
of restraint' but 'community powers' exercised in the spirit of cooperation by various organs of the State in
the best interest of the people.
CONCEPT OF THE RULE OF LAW
General: The Rule of law is a viable and dynamic concept and the term "Rule of law" is derived from the
French phrase la principle de legalite (the principles of legality) which refers to the government based on
the principles of law and not of men. In this sense the concept of la principle de legalite was opposed to
arbitrary powers. Rule of the law is one of the basic principles of the common law in England. This doctrine
is accepted in the constitution of U.S.A. and also in the constitution of India.
Sir Edward Koke was the originator of this concept and Dicey developed this theory in his book "The Law
and the Constitution" published in the year 1885.
Meaning: The concept of Rule of Law is not capable of any exact definition. This, however, does not mean
that there is no agreement on the basic values which it represents. The term Rule of law can be used in two
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senses: (i) formalitistic sense; and (ii) ideological sense. If used in formalistic sense, it refers to organised
power as opposed to a rule by one man, and if used in an ideological sense, it refers to the regulation of the
relationship of the individual and the state, and in this sense it becomes a concept of varied interest and
content. Every legislative, executive and judicial exercise of power must, therefore, depend on the ideals
and values represented by Rule of Law for its validity. Consequently, it is Rule of Law which defines law
rather than the law defining the Rule of Law. According to Dicey, the rule of law is one of the fundamental
principles of English legal system. He attributed the following three meanings of the said doctrine:
i) Supremacy of Law: Dicey states that rule of law means the absolute supremacy or predominance
of regular law as opposed to the wide discretionary power. A man may be punished for a breach of
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law, but can be punished for nothing else. In the words of Dicey, wherever there is a discretion,
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there is a room for arbitrariness., As Wade says, "The rule of law requires that the Government
should be subject to the law, rather than the law subject to the Government."
ii) Equality before Law: Dicey states that there must be an equality before law or equal Subjection of
all classes to the ordinary law of the land administered by the ordinary courts of law. He criticised the
French Legal System of droit administrative in which there were separate administrative tribunals
for deciding cases between the State and citizens. According to Dicey, exemption of the civil
servants from the jurisdiction of the ordinary courts of law and providing them with the special
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tribunals was the negation of equality. In the words of Lord Denning - Our English Law does not
allow to shelter behind a droit administrative."
iii) Predominance of Legal Spirit: Dicey emphasised the role of the courts of law as guarantors of
liberty and suggested that the rights would be secured more adequately if they are enforceable in
the courts of law than by mere declaration of those rights.
Application of the Concept of Rule of Law: In England, the doctrine of the rule of law was applied in
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concrete cases. According to Wade , if a man is wrongfully arrested by the Police, he can file a suit for
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damages against them as if the police were private individuals. In a famous case of Entick V. Carrington , a
publisher's house and papers were ransacked by the king's messengers sent by the Secretary of State.
Modern Concept of Rule of Law: The doctrine of rule of law expounded by Dicey as never fully accepted
in England even in his days. He failed to distinguish arbitrary power from discretionary power. Arbitrary
power is inconsistent with the concept or rule of law but discretionary power is not, if it is properly exercised.
The modern welfare state can not work properly without exercising discretionary powers with int heir limits.
As Mathew, J. stated – “If it is contrary to the rule of law that discretionary authority should be given to
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Government departments or public authorities, then there is no rule of law in any modern state.
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In the present context, Dicey's theory of rule of law cannot be accepted in its totality. Davis gives seven
principal meanings of term Rule of Law-
1. Law and order

2. Fixer rules
3. Elimination of discretion
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4. Due process of law or fairness

5. Observance of the principles of the natural justice
6. Preference for judges and ordinary courts of law to executive authorities and administrative
tribunals
7. Judicial review of the administrative functions.
Rule of Law under Constitution of India: Dicey's rule of law has been incorporated in the constitution of
India. The preamble itself enshrines the ideals of justice, liberty and equality. In chapter III of the constitution
these concepts are enshrined as fundamental rights and are made enforceable by the courts. The maxim
'The king can not do wrong' does not apply in India. There is equality before law and equal protection of
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law . The government and public official 'neither are subject to the jurisdiction of ordinary courts of law nor
is any provision made regarding separate administrative courts and tribunals. In public services also the
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doctrine of equality is accepted . The Principle of judicial review is embodied in the constitution and the
subjects can approach High Courts and the Supreme Court for the fundamental rights guaranteed under
the constitution. All rules, regulations, ordinances, bye-laws, notifications, customs and usages are 'laws'
within the meaning of Article 13 and if they are inconsistent with or contrary to any of the provisions thereof,
they can be declared as ultravires by the Supreme Court and High Courts. Thus, it appears that the doctrine
of rule of law is embodied in the constitution of India, and is treated as the basic structure of the
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constitution.
In the other words, it can be said that constitution is the supreme authority and all the three organs of the
Government, viz. legislature, executive and judiciary are subordinate to it and have to act according to the
provisions of the constitution. From the constitutional point of view, there is large-scale delegation of
legislative and judicial powers to these administrative authorities. Wide discretionary powers are conferred
on these administrative authorities. For the purpose of national planning the executive is armed with vast
powers in respect of land ceiling, control of basic industries, taxation etc. It is erroneous to say that rights of
individual can be protected by the traditional rule of law only. Administration as well as the parliament both
may provide protection to the individuals by the enactment of many policies with their effective
implementation.
In Chief Settlement Commissioner, Punjab v. Om Prakash28 the Supreme Court observed:
"In our constitutional system, the central and most characteristic feature is the concept of the rule of law
which means, in the present context, the authority of the law courts to test all administrative action by the
standard of legality. The administrative or executive action that does not meet the standard will be set aside
if the aggrieved person brings the appropriate action in the competent court."
IMPORTANT QUESTION
Q.1. ''The Rule of law permeates the entire fabric of the Indian Constitution and indeed forms part of its
basic feature".
Q.2. Discuss the contents and importance of the rule of law in the study of administrative law.
Q.3. Briefly explain the meaning of the "doctrine of separation of powers".
Q.4. Define Administrative Law and discuss its scope and utility. Are there any disadvantages of Law
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which may have originated during its growth?
Q.5. The basis of administrative law may be traced in the constitution of India also like the doctrine of
separation of powers, judicial review, government's vicarious liability and protection provided to
government servants etc. Discuss and explain anyone these doctrines.
Q.6. Whether the 'separation of powers' has been adopted and incorporated in the constitution of India?
If so, to what extent? Illustrate with the specific provisions.
Q.7. Define Administrate law. Discuss its nature and scope.
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UNIT-II
CLASSIFICATION OF ADMINISTRATIVE ACTION
It is customary to divide functions of Government into three classes administrative) and judicial.
legislative, executive (or administrative) and judicial. - Wade and Phillips
Duty to act judicially would arise from the very nature of the functions intel1tled to be performed; it need not
be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to
act judicially is implicit in the exercise of such power.
- Justice Shah
General: There must be three organs of government:
(1) Legislature, (2) Executive and (3) JUdiciary. These. three organs essentially perform three classes of
governmental functions - (i) Legislative, (ii) Executive or administrative and (iii) Judicial.
The function of the legislature is to enact law, the executive is to administer the law and the judiciary is to
interpret the law and to declare what the law is. But in the present context it is not possible that the functions
of the executive can be confined exclusively to their administrative character. In modern times the
administrative process as a by-product of intensive form of government cut across the traditional
classification of governmental powers and combines into one all the powers which were traditionally
exercised by three different organs of State. In a general sense, an administrative action can be classified
into four categories-
1) Rule making action or quasi-legislative action.

2) Rule-decision action or quasi-judicial action.
3) Rule-application action or administrative action.
4) Ministerial action.
Need for Such Classification: To decide the nature of the functions performed by the executive
authorities, it is very essential and inevitable to classify the functions but there is not any rigid rule or guide
line to decide the nature of the function. Such classification plays an important role to determine the nature
because every specific function has its own procedural requirements and accordingly different
consequences flow from it, e.g. if the executive authority exercises a judicial or quasi-judicial function, it
must follow the principles of natural justice and is amenable to the writ of certiorari or prohibition, but if it is
an administrative, legislative or quasi-legislative function, this is not so. If the action of the executive
authority is legislative in character, the requirement of publication, laying on the table etc. should be
complied with, but it is not necessary in the case of a pure administrative action. Again, if the function is
administrative, delegation is permissible, but if it is judicial, it cannot be delegated. Unreasonableness can
be a ground to challenge the administrative action but a legislative function may not be held invalid on the
same ground. Therefore, it is necessary to determine what type of function the administrative authority
performs.
QUASI-LEGISLATIVE
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Legislature is the law-making organ of any State. This power is not expressly vested in the legislature but
the combined effect of Article 107 to 111 and 196 to 201 of Indian Constitution is that the law-making power
can be exercised for the Union by the Parliament and for the State by the respective Statelegislature. When
any administrative authority exercises the law-making power delegated to it by the legislature, it is known
as the rule-making action or quasi-legislative action of administration.
Rule making action of the administration partakes all the characteristics which normal legislative action
possess. In certain cases, such action may be particularized,. retroactive and based on evidence.
According to Justice Chinnappa Reddy, a legislative action has four characteristics: (i) Generality (ii)
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Prospectively (iii) Public Interest and (iv) Rights and obligations flowing from it.
Though the rules of naturaljustice do not apply to legislative actions yet reasonableness and fair play in
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action must be observed as Article 14 of the constitution equally applies to legislative actions. And
administrative rule-making action is controlled by Parliament and the Judiciary.
QUASI-JUDICIAL
Today, both the decisions which affect the individual's interest come not from the court but from
administrative agencies exercising adjudicatory powers to provide quality and quanity of justice to the
individual 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 action. Therefore, it is said to be a quasi-judicial
action. Following administrative functions can be an example of 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.
4) Cancellation, suspension, revocation or refusal to renew licence or permit by licensing authority.
5) Determination of citizenship etc.
The Donoughmore Committee on Minister's Powers (1932) analysed the characteristics of a true judicial
decision and summed up the attributes, the presence or absence of which stamped a decision as
administrative decision-making or quasi-judicial action. The Committee was of the view that a true-judicial
decision presupposes a lis between two or more parties and then involves four requisites:
1) Presentation of case
2) Ascertainment of question of fact by means of evidence given by the parties.
3) Ascertainment of question· of law on the basis of submission of legal arguments.
4) A decision which disposes of the whole matter by applying the law to the facts.
5) A quasi-judicial decision involves the first two determinants mayor may not involve the third but
never involves the fourth requisite.
Administrative decision making action is not requisite to follow the elaborate judicial procedure, it is
sufficient if, in the absence f any statutory requirement, the action is rendered by following the minimum
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procedure of natural justice. In order to exercise the power to decide and determine to the prejudice of a
person, the duty to act judicially is implicit in the exercise of such power. The foundation of applying natural
justice in administrative actions had been laid down in the dissent of Justice Subba Rao in Radheyshyam
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Whare v. State of M.P. and this dissent became strikingly pronounced in A.K. Wraipat v. Union of India.
In this case Supreme Court held 'that though the action of making selection for government services is
administrative. Yet the Selection Committee is under a duty to act judicially. The dividing line between an
administrative power and quasi-judicial power is quite thin and is being gradually obliterated. The Supreme
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Court clearly held in the case of Chandra Bhavan Boarding and Lodging Bangalore v. State of Mysore that
it is not necessary to clarify an action of administrative authority as' quasi-judicial or administrative because
administrative authority is bound to follow the principles of natural justice in any case.
ADMINISTRATIVE ACTION
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In Jawaya v. State of Punjab , speaking for the Supreme Court, Mukherjee, C.J., observed: "It may not. be
possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the
executive power connotes the residue of governmental functions that remain after, legislative and judicial
functions are taken away".
Though the distinction between quasi-judicial and administrative action has become blurred, yet it does not
mean that there is no distinction between the two. The difference between two may still be relevant in
determining the measures of natural justice applicable in a given situation.
Thus, administrative functions are those functions which are neither legislative nor judicial in character.
Generally, the following ingredients are present in administrative functions-
1) An administrative order is generally based on governmental policy or expediency.

2) There is no legal obligation to adopt a judicial approach to questions to be decided, and the
decisions are usually subjective rather than objective.
3) An administrative order is not bound by the rules of evidence and procedure unless required
specifically.
4) An administrative authority can take decision in exercise of a statutory power or even in the absence
of statutory provision provided such decision or act does not contravene provisions of any law.
5) Administrative functions may be delegated or sub-delegated unless there is a specific bar in the
statute.
6) An administrative action may be held invalid on the ground of unreasonableness and the writs of
certiorari and prohibition are not always available against administrative actions. Certain examples
of administrative actions –
i. Issuing direction to subordinate officers not having the force of law.

ii. Making a reference to a tribunal for adjudication under the industrial disputes act.
iii. Internment, internment and deportation.
iv. Fact-finding actions.
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v. Requisition, acquisition, allotment etc.
Ministerial Action: Ministerial action is that action of the administrative agency which is taken as a matter
of duty imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial action
involves the performance of a definite duty in respect of which there is no choice. Collection of revenue may
be one such ministerial action. Ministerial actions are exercised by taking active, often coercive measures
and administrative functions by making out policy and expediency with unfettered discretion. When an
administrative agency is acting ministerially it has no power to consult its own wishes but when it is acting
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administratively its standards are subjective and it follows its own wishes.
ADMINISTRATIVE INSTRUCTIONS
Subject to the provision of the constitution, the executive power of the Union and the State extends to all
matters in respect of which parliament or State legislatives have power to make law. The executive power
inclu.des both the determination of policy and carrying it into execution. Thus the power the issue
instructions flows from the general executive power of the administration. Administrative instructions may
be specific or general and directory or mandatory. Such administrative instructions are in the form of rules,
regulations, notifications, etc. Broadly speaking, they have no statutory force and in all cases such
administrative instructions may not confer a justifiable right which can be enforced in a court of law against
8
the administration. At the same time, it cannot be said that such administrative instructions never confer a
justifiable right in favour of an aggrieved party. It would be too wide a proposition of law. There are certain
administrative orders which confer rights and impose duties. If non-observance of non-statutory rule results
9
in discrimination or arbitrariness, an aggrieved party can get relief from a competent court of law. Even if
administrative instructions have no force of law but if these are consistently followed for along time
government can not depart from it at its own sweet will without rational justification because this would be a
clear violation of Article 14 and 16 of the constitution.
ADMINISTRATIVE DISCRETION
Discretion is a science or understanding to discern between falsity and the truth, between right and wrong
and not to do according to will and private affection. An administrative discretion means choosing from
amongst the various available alternatives but with reference to the rules of reason and justice and not
10
according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular.
In an intensive form of government, the government cannot function without the exercise of some discretion
by the officials. It is necessary not only for the individualisation of the administrative power but also because
it is humanly impossible to lay down a rule for every conceivable eventuality in the complex art of modern
government. But it is equally true that absolute discretion is a ruthless master. It is more destructive of
11
freedom than any of man's other inventions. 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.
RULES OF NATURAL JUSTICE
Introduction: Natural justice is an important concept in the administrative law. It is envisaged in

administrative law for ensuring fair exercise of power by administrative agencies. Fair exercise of power of
administration is possible when the power is used with in a fair procedure which inherits the rule of natural
justice in the form of fair hearing and rule against bias. Natural justice meant many things to many writers,
lawyers and systems of law. It has many coloures, shades, forms and shapes. Natural justice is the best
12
instrument to promote the interest of individual. It ensures participation of the common man in
administrative process; it also seeks to further legitimate State purposes by ensuring the government
against committing elementary blunders in administration due to ignorance etc.
Meaning of Natural Justice and Definition: Natural Justice is an ethico-Iegal concept which is based on
natural feeling of Human Being. Rules of Natural Justice are inherent in the' nature itself and developed
with the growth of civilization. It is a great principle of humanisation which informs law and procedure with
fairness and impartiality.
According to De Smith; "The term Natural Justice expresses the close relationship between the common
law and moral principles and it has an impressive ancestry."
Natural justice is also known as "Substantial Justice", "Fundamental Justice", "Universal Justice" or fair
play in action. It is a great humanizing principle intended to invest law with fairness to prevent the
miscarriage of justice. The standards of fairness are known in legal literature as the principle of Natural
Justice. Natural Justice plays much the same part in Indian and British law as the "due process of law"
clause does in the constitution of America.
Rule of Natura.1 Justice has now been held to be a part of 'the procedure established by law' provided
12
under Article 21 of the constitution of India .
In England since the decision in case of Ridge vis Baldwin, the courts have been insisting upon the
observance of the rule of Natural Justice in a variety of circumstances.
13
According to Wade, the rule of Natural Justice operates as implied mandatory requirements, non-
observance of which invalidates the exercise of the power. The above principle is accepted in India also. In
14
the case of A.K. Kraipak v. Union of India, Hegde, Justice (Supreme Court) held that the aim of the rules of
natural justice is to secure justice or to prevent miscarriage of justice.
Principles of Natural Justice: Natural Justice is not a fixed but flexible concept. The standards of natural
justice very with situations. In Union of India v. P.K. Roy15 speaking for Supreme Court, Ramaswami J.
observed:
"The extent and application of the doctrine of natural justice cannot be imprisoned within the strait-jacket of
a rigid formula. The application of doctrine depends upon the nature of jurisdiction conferred on the
administrative authority upon the character of the rights of the persons affected, the scheme and the policy
of the statute and other relevant circumstances disclosed in the particular case.
16
Again in R.S. Dass v. Union of India, the Supreme Court stated:
"It is well established that the rules of natural justice are not rigid rules, they are flexible and their
applications depend upon the setting and background of statutory provisions; nature of right which may be
affected and the consequences Which may entail its application depends upon facts and circumstances of
each case."
The concept of Natural Justice entails two principles-
13
1) Name Judex in Causa Sua: No man shall be judge in his own cause or the deciding, authority must be
impartial and without bias - Rule against Bias.
2) Audi Alterm Partem: Hear the other side or both sides must be heard or no man should be condemned
unheard or that there must be fairness on the part of deciding authority - Rule of hearing or fair hearing.
Rule Against Bias
The first principle of Natural Justice is rule against bias. It means the deciding authority must be impartial
and neutral. This rule is based upon the following maxims-
1) No one should be judge in his own cause (Lord Coke)
2) Justice should not only be done, but manifestly and undoubtedly be seen to be done (Lord
Jewart)
3) Judges, like Caesar's wife should be above suspicion (Justice Bowen)
Meaning of Bias: A predisposition to decide for or against one party without proper regard to the true merits
17
of the dispute is bias.
'Bias' is a disqualifying factor· in many administrative actions. 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.
Explanation of the Principle: The very first requirement of Natural Justice is that the judges should be
impartial and neutral and must be free from bias.
It is a well settled principle of law that justice should not only be done but seen to be done. This principle is
applicable not only to the judicial proceedings but also to quasi-judicial as well as administrative
18
proceedings.
Types of Bias: Bias appears in various forms which may affect the decision in a variety of ways. The
various types of bias are -
1) Pecuniary Bias: Pecuniary interest, however small, must disqualify a judge from being a member
of a tribunal.
19
According to Griffith and Street, "a pecuniary interest however slight will disqualify a judge, even
20
though it is not proved that the decision is in any way affected." In Bonham case, Dr. Bonham, a
doctor of Cambridge University was fined by the college of physicians for practicing in the city of
London without the licence of such college. According to the statute of college provided that the fine
should go half to the king and half to the college. Adjudicating upon the claim, Coke, C.J. disallowed
the claim as the college had a financial interest in its own judgement and was judge in its own cause.
According to Hewart, "Nothing is to be done which creates even a suspicion that there has been an
improper interference with the course of justice."
14
21
In India, the same principle is accepted in Manak Lal v. Dr. Prem Chand Gajendragadkar, J.
Observed:
"It is obvious that pecuniary interest, however small it may be in a subject matter of the proceedings,
would wholly disqualify a member from acting as a judge."
22
In another case of Jeejeebhay Vs Astt. Collector of Thana , Chief Justice Gajendragadkar
reconstituted the Bench on the ground that the Chief Justice, who was a member of bench was also
the member of the cooperative society for which the disputed land had been acquired.
2) Personal Bias: A number of circumstances may result into personal bias. Here a judge may be a
relative, friend or business associate of a party. He may have some personal enmity, or grievance or
professional rivalry or any other kind of personal interest against such party. In view of the factors
there is every likelihood that the judge may be biased towards one party or prejudice towards
23
other.
24
Thus, in Mineral Development Ltd. v. State of Bihar, the petitioners were granted mining licence for
99 years in 1947. Petitioner and Minister were political rivals. Minister cancelled the licence of
petitioner. A criminal proceeding was also initiated by Minister against the petitioner. It was held that
there was a personal bias against the petitioner and Minister was disqualified from taking any action
against the petitioner.
In Meenglass Tea Estate v. Workmen,25 the manager conducted an inquiry against a workman for
the allegation that he had beaten the Manager. The Supreme Court held that the inquiry was vitiated
because of personal bias.
In the leading case AK. Kraipak v. Union of India,26 'X' was the candidate for Indian Foreign Service
selection and the member of the selection board too. The selection of 'X' was challenged on the
ground of Natural Justice. The Supreme Court observed that it was against all canons of natural
justice to make a man judge in his own cause. It is true that he did not sit in the board when his name
was called as a candidate but being the member of that board he had participate in the procedure of
board at every stage and under those circumstances it is difficult to believe that he could be
impartial.
About the importance of this case, Bhagwati J. has observed AK. Kraipak is a landmark in the
development of administrative law and it has contributed in a large measure to strengthening of the
rule of law in this country.
27
Similarly in Rattan Lal V. Managing Committee, the Supreme Court has held that one can not be
the judge of its own cause and the proceedings in the case were vitiated because of prejudice of one
of the members of committee.
28
In K. Vijay Bhaskar Reddy v. Government of AP. it was held that the plea of bias can also be raised
against the appointment of a person as a commission of inquiry under the commission of Inquiry
15
Act.
There are some situations in which the doctrine of necessity is invoked to overcome the objection of
29
bias. In the case of Election Commission of India v. Dr. Subramaniam Swamy, the learned Chief
Justice. said, "we must have a clear conception of the doctrine of absolute necessity.lt is well settled
rule that the law permits certain things to be done as a matter of necessity which it would otherwise
not countenance on the touchstone of judicial propriety".
3) subject-Matter Bias: Subject-matter bias may arise when the judge has a general interest in the
subject-matter.
According to Griffith and Street, "Only rarely will this bias invalidate proceedings." A mere general
interest in the general object to be pursued would not disqualify a judge from deciding the matter.
There must be some direct connection with the litigation.
The proceedings were invalidated on the ground of official bias in Gullapalli Nagestiwar Rao
30
v.AP.S.R.T. In the case the Supreme Court quashed the decision of AP. Government, which
nationalised road transport on the ground that the secretary of the transport department who gave
hearing was interested in the subject matter. But the position is different in England and America,
where predisposition in favour of policy in public interest is not held as legal bias invalidating
administrative action.
4) Departmental Bias: Departmental bias is inherent in administrative process. If it is not checked it

31
will negate the concept of fairness in administrative process. In Gullapalli II . The minister heard the
objections and decided the case rejecting the objections in Guliapally I. The decision of the Minister
was upheld. The Supreme Court observed that the proceedings were not vitiated as the secretary
was a part of the department whereas the minister was only primarily responsible for the disposal of
the business pertaining to that department.
32
In the State of U.P. V.R.S. Sodhi, the question was whether State Police should investigate into
the alleged lake encounters. Allegations were leveled against local police. According to the
Supreme Court, investigation into the matter by independent agency was desirable. Accordingly
the court directedC.B.1. to investigate into the allegations.
5) Policy Bias: Sometimes it happens that the minister or the official concerned may announce
beforehand the general policy which he intends to follow. The question is whether such a statement
would disqualify him from acting as the deciding authority on the ground that this indicates his
partiality to the issue in dispute. According to Wade, Ministerial or departmental policy cannot be
regarded as disqualified bias.
Policy bias is inherent in administrative process and it cannot be eliminated. It is useless to

condemn a public officer on ground of bias merely because he is pre-disposed in favour of some
policy in public interest.
Test of Bias: The position in case of pecuniary bias is that an interest, however small it may be disqualifies
a person from acting as a judge. But that is not so in case of personal bias. In order to challenge
administrative action successfully on the ground of personal bias, it is necessary to prove that there is a
'reasonable suspicion of bias' or a 'real likelihood of bias'.
16
33
According to De Smith , "A real likelihood of bias means at least substantial possibility of bias.
Reasonable apprehension in the mind of a reasonable man is necessary to prove the real likelihood of bias.
34
Such reasonable apprehension must be based on the cogent materials.
Audi Alterm Partem : Rule of Hearing
The audi alterm partem rule means no one should be condemned unheard or both the sides must be heard
before passing any order or judgment. This is the second Fundamental Principle of Natural Justice.
According to de Smith, "No proposition can be more clearly established than that a man cannot incur the
loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of
answering the case against him." This the first principle of a civilized jurisprudence and is accepted by laws
of men and God. Generally the above maxim includes two elements-(i) Notice and (ii) Hearing.
i) Notice: A basic principle of natural justice is that before any action is taken, the affected person
must be given notice to show cause against the proposed action and seek his explanation. The
notice must be clear,' specific and un-ambiguous and the charges should not be vague and
35
uncertain.
nd
By the constitution (42 Amendment Act 1976), if the inquiry is under Article 311 of constitution of
India is to be held, two notices (first for charges and second for proposed punishment) should be
given to the person concerned. As a general rule, when a notice regarding one charge or allegation
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.
36
In the leading case of Cooper v. Wandsworth Board of works 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.
37
The Historical case of Ridge Vs Baldwin has been rightly described the 'Magna Carta' of Natural
justice. In this case, the House of Lords by a majority of 4:1 held that the power of dismissal could
not be exercised without giving a reasonable opportunity of being heard and without observing the
principles of Natural Justice.
Reasoned Decisions or Speaking Order
Meaning and Significance: A reasoned decision means a decision Which must contain reasons in
support of it. A reasoned decision acts as a check upon the arbitrary use of administrative power. A decision
supported by reason is much less likely to rest on caprice or careless consideration. The need publicly to
articulate the reasoning process upon which a decision is based, requires the administrative authority to
workout all the factors which are present in a, case. Lord Denning rightly says "the giving of reasons is one
38
of the fundamentals of good administration."
Scope and Object: There is no general rule of English law that reasons must be given for administrative or
even judicial decisions.
17
In India also, till very recently, it was not accepted that the requirement to pass speaking orders is one of the
principles of natural justice. But the condition to record reasons introduces clarity and excludes
arbitrariness and satisfies the party concerned against whom the order is passed. Today, the government
incorporates the concept of 'welfare state' in its policies and therefore the functions of administration and
executive have increased, administrative tribunals and other executive authorities have come to stay and
they are armed with wide discretionary powers and there are all possibilities of abuse of power by them. To
provide a safeguard against the arbitrary exercise of powers by these authorities, the condition of recording
reason is imposed on them. The duty to give reasons may be statutory or non-statutory. Where there is a
statutory duty, the authority is bound to give reasoned decisions in all cases to which that provision applies.
But in the absence of statutory requirement, the courts have been emphatic to advise 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 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.
Moreover fundamentals of procedural fairness demand reasoned decision. A law which empowers any
administrative authority to take a decision affecting the rights of the people without assigning any reason
cannot be said laying down such a procedure as- is fair, just and reasonable and therefore it would violate
Article 14 and 21.
IMPORTANT QUESTIONS
Q.1. What do you understand by the 'doctrine of bias'? Give one example of it. Q.2. Define Administrative
Actions. Distinguish between-
Q.2. Define Administrative Actions. Distinguish between-

a. Legislative and administrative functions.
b. Judicial and quasi-judicial functions.
Q.3. Define 'Natural Justice'. Discuss briefly certain rules of natural justice followed during
administrative and quasi-judicial proceedings.
Q.4. Define "Audi alterm partem".
Q.5. Define and distinguish between administrative action, administrative discretion and administrative
Instruction. Give illustrations.
Q.6. Classification of administrative action into administrative, quasi-judicial and quasi-legislative

functions is compulsive. Explain and distinguish between such functions.
Q.7. Discuss the 'rule against bias' and 'audi alterm pertum' rule as principles of administrative Justice.
Q.8. Define and distinguish between quasi-legislative, quasi-judicial and administrative action, giving
suitable illustrations.
Q.9. Discuss the rule against bias and audi alteram partem rule as parts of natural justice. Illustrate.
18
UNIT - III
LEGISLATIVE POWERS OF ADMINISTRATION
Legislature is the law-making organ of any State. In India, the combined effect of Article 107 to 111 and 196
to 201 is that the law-making power can be exercised for the Union by Parliament and for the States by the
respective State legislatures. But in the twentieth century 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. It is known as Quasi-legislative Action or Delegated Legislation.
DELEGATED LEGISLATION
Definition: The term delegated legislation is difficult to define. However, even if defined, it is equally difficult
1
to determine with certainty the scope of such delegated legislation. Mukherjee, J. rightly observes,
"Delegated Legislation is an expression which covers a multitude of confusion. It is an excuse for the
legislators, a shield for the administrators and a provocation to the constitutional jurists.
2
As stated in Halsbury's Law of England "When an instrument of a legislative nature is made an authority in
exercise of power delegated or conferred by the legislature it is called "Subordinate legislation."
Generally, 'delegated legislation' means the law made by the executive under the powers delegated to it by
the legislature. A simple definition of the term, 'delegated legislation' may be given as follows:
"When the function of legislation is entrusted to organs other than the legislature itself, the legislation made
by such organs is called delegated legislation".
NECESSITY
In the present context, to facilitate the concept of welfare state, the administration has to expand its function
and many factors are responsible for the rapid growth of delegated legislation in every modern democratic
State.
In the opinion of the Committee: In Ministers Powers, the factors responsible for the growth of delegated
3
legislation are:
1. Pressure upon Parliamentary Time: The legislative activity of the state has increased in response to
the increase in its functions and responsibilities. It therefore formulates the legislative policy and gives
power to the executive to make subordinate legislation for the purpose of implementing the policy. The
committee on Ministers powers has rightly observed - the truth is, that if parliament were not willing to
delegate law-making power, Parliament would be unable to pass the kind and quality of legislation
which modern public opinion requires.
2. Filling Details of Legislation: The legislature has to make a variety of laws. Sometimes, the subject-
matter on which legislation is required is so technical in nature or local or specialised nature that the
executive must consult the experts. Members of Parliament may be the best politicians but they are not
experts to deal with technical matters which are required to be handled by experts. So the legislative
power may be conferred on experts to deal with technical problem, e.g., gas, atomic energy, electricity
19
etc.
3. The Need of Flexibility: At the time of passing any legislative enactment. It is impossible to foresee all
the contingencies. A statutory provision can not be amended except by the amendment passed by
legislature and it is a very slow procedure. It may be necessary to make changes in the application of a
provision in the light of experience. So through the device of delegated legislation the executive can
make the changes in the law more easily, e.g., export and import, foreign exchange etc.
4. Experiments: The practice of delegated legislation enables the executive to experiment. This method
permits rapid utilization of experiences and implementation of necessary changes in the application of
provisions in such experiences.
5. Emergency: In time of emergency, quick action is required to be taken. Delegated legislation is the only
convenient indeed the only possible remedy. Therefore, in time of war and other national emergencies,
the executive is vested with special and extremely wide powers to deal with the situation. Similarly, in
the situation of epidemics, floods, inflation etc, delegated legislation plays an important role to solve the
problem in practical sense.
6. Complexity of Modern Administration: The complexity of modern administration and the expansion
of the functions of the State to the economic and social sphere have rendered it necessary to resort to
new forms of legislation and to give wide powers to various authorities on suitable occasions. By
resorting to traditional legislative process, the entire object may be frustrated by vested interests and
the goal of control and regulation over private trade and business may not be achieved at all.
CONSTITUTIONALITY AND REQUIREMENT FOR VALIDITY OF DELEGATED LEGISLATION
The term 'constitutionality of administrative rule-making or delegated legislation' means the permissible
limits of the constitution of any country within which the legislature, which as the sole repository of law
making power, can validly delegate rule-making power to other administrative agencies. The new role of
State in order to facilitate the concept of welfare State can be fulfilled only through the use of greater power
in the hands of government which is most suited to carry out the social and economic tasks before the
country. The task of enhancing the power of the government to enable it to deal with the problems of social
and economic reconstruction has been accomplished through the technique of delegation of legislative
power to it. This delegation of legislative power raises a natural question of its constitutionality.
In England, parliament is supreme authority and therefore able to confer wide legislative powers on the
executive with expressly defined limits.
In America, the doctrine of separation of powers has been considered to be an essential principle
underlying the constitution and the powers entrusted to one department should be exercised exclusively by
the department without encroaching upon the powers of others. Therefore, legislative power cannot be
4
delegated. Hence the syllogism of Prof. Cushman:
Major Premise : Legislative power cannot be constitutionally delegated by congress.
Minor Premise : It is essential that certain powers be delegated to administrative officers and
regulatory commissions.
20
Conclusion : Therefore, the powers thus delegated are not legislative powers.
In India: The constitutionality of delegated legislation can be seen in two perspectives:
5
i) Pre-constitutional Position: Queen v. Burah is considered to be leading authority on the subject.
Privy Council reserved the decision of the Calcutta High Court. It held that the Indian Legislature
was not an agent or delegate of the Imperial parliament. It was only a case of conditional legislation.
The doctrine of conditional legislation was again applied by the Privy Council in Emperor v. Benoari
6
Lal when it upheld the constitutionality of the ordinance passed by the Governor General for the
establishment of the special courts and delegated power to the provincial governments to declare
this law applicable in their provinces at any time they deem fit.
Therefore, during the 'period of privy council, the question of permissible limits of delegated
legislation remained uncertain. Afterwards, the question of constitutionality came before Fedral
7
Court in Jatindra Nath Gupta v. Province of Bihar . In this case Federal court held that the power of
extension with modifications is unconstitutional delegation of legislative powers because it is an
essential legislative function. Here, for the first time, it was laid down that in India the legislative
powers cannot be delegated. However, Fazal AIi, J. in his dissenting opinion held that such
delegated power is constitutional because according to him it merely amounted to a continuation of
the Act.
ii) Post Constitutional Position: The decision in Jatindra Nath case created confusion about the
limits of the delegation of legislative powers. To clarify such doubts, the President of India sought
the opinion of the court under Article 143 of constitution on the constitutionality of the three Acts
covering three different periods :
a. Section 7 of the Delhi Laws act, 1912

b. Section 2 of the Ajmer-Merwar (Extension of Laws) Act, 1947
c. Section 2 of the part 'C' states (Laws) Act, 1950
Seven Judges heard the case and propounded seven separate judgements. The Supreme Court took the
via media and held:
1. Indian parliament was never considered an agent of anybody, and therefore the doctrine of
delegatus non potest delegare has no application.
2. Doctrine of separation of power is not a part of the Indian Constitution.
3. Parliament cannot abdicate or efface itself by creating a parallel legislative body.
4. Power of delegation is ancillary to the power of legislation.
5. The limitation upon delegation of power is that the legislative cannot part with its essential
legislative power that has been expressly vested in it by the constitution.
On the basis of this reasoning, the Supreme Court came to the conclusion that all there Acts are valid.
21
The Supreme Courts has now made it abundantly clear that the power of delegation is a constituent
8
element of legislative power as a whole under Article 245 of the constitution and other relative articles.
Restraints on Delegation: As laid down in Delhi Laws Act case restraints on delegation is that the
legislature should not delegate its essential legislative function which means laying of policy and enacting it
into a binding rule of conduct. Thus, in this case, the doctrine of excessive delegation was propounded.
Excessive Delegation - Permissible Limits: In India, the court follows the doctrine of excessive delegation.
It means Indian legislature cannot delegate unlimited legislative power to an administrative authority. The
advantage of the doctrine is that the courts can declare too broad delegation of legislative power as
excessive and hence invalid. It is now well settled by the majority judgment in Re Delhi Law Act, 1912 that
there is a limit beyond which delegation may not go. As regards the determination of the limit of delegation,
there are two views:
1. Legislature can delegate legislative power provided that it lays down the policy. Court has determined
the validity of delegation of legislative power on basis of these principles.
2. Legislature can delegate legislative power provided this does not amount to abdication of essential
legislative function.
In most of cases the validity of the delegated power has been examined on basis of legislative policy.
Legislative Policy to be found in Essential Legislative Functions: In a number of cases the Supreme
Court has decided that the legislature must declare the policy of law, laid down legal principles and provide
standards for the guidance of the delegate to promulgate delegated legislation, otherwise the law will be
bad on account of "excessive delegation".
9
In Raj Narain Singh v. Patna Administration Committee , the Supreme Court held the delegation invalid on
the ground that the power to pick out a section for application to another area amounts to delegating the
power to change the policy of the Act which is an essential legislative power and hence cannot be
delegated.
10
In Hamdard Dawakhana v. Union of India , facts were that Parliament passed the Drug and Magic
Remedies (Objectionable Advertisement) Act, 1954 to control the advertisement of certain drugs. Section 3
laid down a list of diseases for which advertisement was prohibited and authorised Central Government to
include other diseases in the list. The court held sections bad as nowhere has the legislature laid down any
policy for the guidance of Government in the matter of selection of disease. After the Delhi
Laws Act, this is the first case in which a Central Act was held ultravires on the ground of excessive .
delegation.
11
In Gwalior Rayon Mills V, Assistant Commissioner of States Tax Justice K.K. Mathew propounded a new
test to determine the constitutionality of delegated legislation. According to him, so long as a legislature can
repeal the enabling Act delegating law-making power, it doesn't abdicate its legislative function and
therefore the delegation must be considered as valid no matter howsoever broad and general the
delegation may be. However, the majority led by justice Khanna did not agree to this "abdication test' and
reiterated the already well-established test of "Policy and guidelines". Mathew J. reiterated his view in M.K.
22
12
Papiah V, Excise Commissioner . Thus, the decisions of the court in Gwalior Rayon and Papiah case took
two different and conflicting views on the question of constitutionality of delegated legislation. Added to this
13
the Supreme Court's decision in Registrar of Cooperative Societies v, K. Kunjambu though upholds the
'policy and guideline' test yet creates an impression that this test is tentative and can be reopened.
Whatever may be the test to determine the constitutionality of delegated legislation, the fact remains that
due to the compulsions of modern administration, courts have allowed extensive delegation of legislative-
powers, especially in the area of tax and welfare legislation.
The law on the constitutionality of delegation of legislative functions was summed up by the Apex Court in
Mahe Beach Trading Co. v. U.T. of Pondicherry; The Court held" if there is abdication of legislative power or
there is excessive delegation or if there is total surrender by the legislature of its legislative functions to
another body then that is not permissible."
Functions which can be delegated i.e. Permissible Delegation
1. Commencement of an Act depends upon the notification published by the State Government in the
official Gazette. Several statutes contain an 'appointed day' clause, which empowers the Government
to appoint a day for the enforcement of the Act. The Act comes into force when the notification is
published in the official Gazette. Such a provision is valid for, as Sir Cecil Carr remarks "the legislature
provides the gun and prescribes the target, but leaves to executive the task of pressing the trigger".
2. The function of supplying details may be delegated to the executive for giving effect to the policies
formulated by the legislature. These functions are ancillary to the exercise of legislative function.
3. Inclusion is permissible delegation. Sometimes legislature passes an Act and makes it applicable, in the
first instance, to some areas or classes of persons, but empowers the Government to extend the
application of such statute to different territories, persons or commodities etc., e.g., the Transfer of
Property Act, 1882 was made applicable to whole of India except certain areas, but the Government
was authorised to apply the provisions of the Act to those areas also.
4. Exclusion of any territory or commodities etc by the Government is permissible. Some statues empower
the Government to exempt from their operation certain persons, territories etc.
5. Some statutes authorise the Government to suspend or relax the provisions contained in such statue.
6. Some statutes confer the power on the executive to adopt and apply statutes existing in other states
without modification to a new area provided the legislative policy is laid down in the statute by the
competent legislature.
7. Sometimes modification in the existing statute is allowed by the provisions of statute itself but before its
application. This is a legislative act but sometimes it is necessary to deal with local conditions.
8. In some cases the legislature delegates to the executive the power to take punitive actions.
According to Indian Law Institute, this practice is not objectionable, provided two safeguards are adopted-
1. The legislature must determine the maximum punishment which the rule-making authority may
23
prescribe for breach of regulation and
2. If such power is delegated to any authority other than the State or Central Government, the exercise
of the power must be subject to the provisions sanction or subsequent approval of the State or
Central Government.
9. A delegation of power to frame rules, bye-laws, regulations etc. is not unconstitutional, provided that the
rules, bye-laws and regulations are required to be laid before the legislature before they come into force
and provided further the legislature has power to amend modify or repeal them.
10. Sometimes, legislature delegates the power to the Government to modify the provisions of the existing
statues for the purpose of removing difficulties. This is because of the fact that at the date of the
enactment of a statute, it is not possible to foresee all the difficulties which may arise in implementing it.
Such removal of difficulties provision is also necessary when the legislature extends a law to a new area
or to an area where the socio-economic conditions are different.
Generally, two types of 'removal of difficulties' clauses are found in a statute, - a narrow one, which
empowers the executive to exercise the power of removal of difficulties consistent with the provisions of the
Parent Act.
Another type of 'removal of difficulties' clause is very wide and authorises the executive in the name of
removal of difficulties to modify even the parent Act or any other Act. Usually, such a provision is for a limited
period and nicknamed as "Hel1ry VIII Clause" to indicate the executive autocracy.
14
In Sinai v. Union of India it is submitted that by using a 'removal of difficulties' clause, the Government may
slightly tinker with the Act to round off angularities and smoothen the joints or remove minor obscurities to
make it workable, but it can not change the feature of the Act.
Functions which cannot be delegated Le. Impermissible Delegation
1. Essential legislative functions cannot be delegated by the legislature to the executive. In other words,
legislative policy must be laid down by the legislature itself and by entrusting this power to the
executive, the legislature cannot create a parallel legislature.
2. Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the
executive to repeal a law is excessive delegation and is ultravires.
3. Power to modify the Act in its important aspects is an essential legislative function and therefore
delegation of such power is permissible to a limited extent.
4. The legislature cannot delegate the, power of exemption to the executive without laying down the norms
and policy for the guidance of the latter.
5. The legislature has plenary power of law making and in India, Parliament can pass any law prospectively
subject to the provisions of the constitution. Giving an Act retrospective effect is essentially a legislative
function and it can be delegated.
6. Legislature cannot delegate the power by which the executive can adopt the laws which may be passed
24
in future as this is an essential legislative function.
7. The legislature cannot empower the executive by which the jurisdiction of courts may be ousted. This is
a pure legislative function.
8. The making of a particular act into an offence and prescribing punishment for it is an essential legislative
function and cannot be delegated.
Conditional Legislation: Hart defines conditional legislation as a 'Statute that provides controls but
specifies that they are to go into effect only when a given administrative authority fulfils the existence or
conditions defined in the statute'.
In conditional legislation, legislature makes the law and leaves on the executive to bring the Act into
operation on fulfillment of certain conditions or contingencies and for this reason the legislation is known as
conditional legislation.
Distinction between delegated Legislation and Conditional Legislation: In conditional legislation, it is

the duty of the executive to apply the law after performing the function of fact-finding (to inquire whether
facts requiring operation of the Act exist). On the other hand, in case of delegated legislation, it is left to the
discretion of the Government whether to exercise the power delegated to it or not.
In Hamdard Dawakhana v. Union of India, the Supreme Court pointed out the distinction between the two in
the following terms -
"The distinction between conditional legislation and delegated legislation is that in the former the delegate's
power is that of determining when a legislative-declared rule of conduct shall become effective.... and latter
involves delegation of rule-making power which constitutionally may be exercised by the administrative
agent.
SUB-DELEGATION OF LEGISLATIVE POWERS
When legislature confers legislative powers on an executive authority and executive authority further
delegates those powers to another subordinate authority or agency, it is called 'Sub-delegation'. This
process of sub: delegation may go through many stages.
The necessity of sub-delegation is sought to be supported on the following grounds -
1. Power delegation necessarily carries with it power of further delegation and
2. Sub-delegation is ancillary to delegated legislation and any objection to the said process is likely to
subvert the authority which the legislature delegates to the executive.
Sub-delegation of legislative power can be permitted either when such power is expressly conferred by the
statute or can be inferred by - necessary implication. Where, a statute expressly authorises an executive
authority to sub-delegate its powers, it is valid to the extent of the limits prescribed by the statute itself. In
other words, 'where a power is given to do a certain thing in a certain way, the thing must be done in that way
81
or not at all.
25
Implied power of delegation means, in the absence of express provision for the delegation of powers in the
parent Act, the same may be inferred by necessary implication.
Griffith rightly states "If the statute is so widely phrased that two or more tiers of sub-delegation are
necessary to reduce it to specialised rules on which action can be based, then it may be that the courts will
imply the power to make the necessary sub-delegated legislation."
Delegatus non Potest Delegare: This maxim applies in the field of delegated legislation and sub-
delegation of power is not permissible unless that said power is conferred either expressly or by necessary
implication. The meaning of the above maxim is that a delegate cannot further delegate.
82
De Smith says, "There is strong presumption against construing a grant of delegated legislative power as
empowering the delegate to sub-delegate the whole or any substantial part of the law-making power
entrusted to it.
CONTROL OVER DELEGATED LEGISLATION
Introduction: In the present context, legislative powers can validly be delegated to the executive within the
permissible limits. At the same time, there is inherent danger of abuse of the said power by the executive
authorities. The Committee on Ministers' Powers states, 'though the practice of delegated legislation is not
bad, risks of abuse are incidental to it and therefore, safeguards are required if the country is to continue the
advantages of the practice without suffering from its inherent dangers'.
The control mechanism of administrative rule-making comprises three components, namely, parliamentary
control, procedural control and judicial control.
Parliamentary Control: As usual, law making power is vested in the legislature but if legislative powers are
delegated to the executive by the legislature, it is not only the right of the legislature, but also its duty, as a
principal to see how its agent (Executive) carries out the agency entrusted to it. The underlaying objective of
such control is to keep watch over the. rule-making authorities and also to provide an opportunity to criticise
83
them if there is abuse of ;power on their part.
a. Proceeding in Parliament: Parliament is consisted of two houses and each house has its own rules of
procedure and such rule requires that a bill involving proposal for delegation of legislative power "shall
be accompanied by a memorandum explaining such proposals and drawing attention to their scope
and stating also whether they are of exceptional or normal character. A number of proceedings are
involved in exercise of control over delegation of legislative power by the legislature:
1. Debate on Delegating Bill: Members of Parliament may discuss all matters about delegation
including necessity, extent, type of delegation and the authority to whom power is proposed to be
given.
2. Asking Questions and Giving Notices: Any member of the house may ask questions on any
matter concerning delegation of legislative power and, if not satisfied, can give notice for debate as
laid down under rule 59 of the procedure and conduct of business in Lok Sabha.
3. Resolution on Motion: Any member of the House may move resolution on motion, if the matter
26
relating to delegation of legislative power is of urgent and immediate nature and the reply given by
the government is not satisfactory.
4. Demand for Vote on Grant: Members can discuss any thing about delegated legistation when
budget demands are presented by a Ministry. Any member may propose to reduce grant.
5. Directions by Speaker: The speaker may refer bills containing provisions for delegation of
legislative powers to the committee to examine the extent of such powers sought to be delegated.
b. Laying on Table: This process of laying on table works as a safety-valve through which legislature
exercise supervision, check and control over the executive rule making power. "Laying technique"
18
brings legislature into close and constant contact with the admir.istration.
Types of Laying: There are several types of laying. The Selection Committee on Delegated legislation
19
summarised the procedure under seven heads.
1. Laying without Further Provision for Control: The parent Act merely provides that the rules shall
be laid before Parliament. They become operative from the date they are laid before the Houses.
This procedure serves the purpose of only informing the Parliament as to what rules and regulations
were made by the administrative authorities.
2. Laying with Deferred Operation: The requirement of laying is linkea with postponement of rules
and in this way Parliament gets greater degree of control than in the preceding form of laying.
3. Laying with Immediate Effect but Subject to Annulment: In this case, the rules come into force
when laid before Parliament, but cease to be in operation if disapproved by it with in a specified
20
period. According to May, "this is the most common form of Parliamentary Control" and is known as
'negative resolution procedure.
4. Laying in Draft but Subject to Resolution that on Further Proceedings be Taken: This is a
variant of 'negative resolution' procedure. Under this, draft of statutory rules is required to be laid
before Parliament but the parent Act provides that the rules should not be made effective until a
particular period has expired.
5. Laying in Draft and Requiring Affirmative Resolution: This method provides a stringent
Parliamentary Supervision over delegated legislation unlike the negative resolution procedure. The
draft rules do not become operative until an affirmative resolution has been passed by Parliament.
Members get an opportunity to discuss and react to the rules before its final execution by the
executive authority.
6. Laying with Operation Deferred Until Approval Given by Affirmative Resolution: In this case,
rules are actually made but they do not come into operation until approved by Parliament. Legally in
this case, the delegated legislation exists, although it does not come into effect whereas in the case
of 'Positive Resolution' procedure under head (5) the legislation is required to be laid in draft. It has
no legal existence if it has not been made.
7. Laying with immediate Effect but Requiring Affirmative Resolution as Condition for
Continuance: This method of laying is used where prompt operation of delegation of legislative
27
power is required but at the same time strict Parliamentary Supervision is also necessary. The
confirmatory resolution keeps the delegated legislation alive, which would otherwise die. It is often
applied in cases of taxation or to rules made during emergency.
In the absence of any general law in India regulating laying procedure, the Scrutiny Committee made the
following suggestions:
1. All the Acts of Parliament should uniformly require that rules be laid on the Table of the House 'as
soon as possible'.
2. The laying period should uniformly be 30 days from .the date of final publication of rules and
3. The rule will be subject to such modification as the House may like to make.
Legal consequences of non-compliance with the laying provision: In India, it depends on whether
the provisions in the enabling Act are mandatory or directory. In Narendra Kumar v. Union of India21, the
Supreme Court held that the provisions of section 3(5) of the Essential Commodities Act, 1955 which
provides that the rules framed under the Act must be laid before both Houses of Parliament, are
mandatory and therefore clause 4 of the Non-Ferrous Metals Control Under, 1958 has no effect unless
laid before Parliament.
Even if the requirement of laying is only directory and not mandatory, the rules framed by the
administrative authority without conforming to the requirement of laying would not be permissible if the
mode of rule-making has been consciously violated.
c. Scrutiny Committee: The function of this committee is 'to scrutinize' and report to the respective
Houses whether the powers to make regulations, rules, sup-rules, bye-laws, etc. conferred by the
constitution or delegated by Parliament are being properly exercised within such delegation.
The Indian Committee on Subordinate Legislation has made interalla the following recommendations
and suggestions:
a. Power of judicial review should not be taken away or curtailed by rules.

b. A financial levy or tax should not be imposed by rules.
c. Language of rules should be simple and clear and not complicated or ambiguous.
d. Discriminatory rules should not be framed by administration.
e. Sub-delegation is allowed with safeguards.
f. Rules should not travel beyond the rule-making power conferred by the Parent Act.
g. There should not be inordinate delay in making of rules by the administration.
h. The defects should be cured as soon as possible.
i. The final authority of interpretation of rules should not be with the administration.
j. Rules should contain short title, explanatory notes, reference to earlier amendments for
convenience of location, ready reference and proper understanding.
d. Conclusion: Parliamentary control over administrative rule-making is admittedly weak. Wade says
28
- "One of the features of the 20th century has been a shift of the constitutional centre of gravity away
from Parliament and towards the executive."
Procedural Control: As parliamentary Control over delegated legislation is not effective, procedural
control mechanism has the potential which besides providing effective vigil over delegated legislation can
guarantee effective people participation for better social communication, acceptance and effectiveness of
the rules. There is now emphasis on procedural control. It has three components -
a) Antecedent Publicity: In the interest of the citizens, the primary safeguard to ensure the proper
exercise of power of delegated legislation lies in the development of adequate procedures to be
followed by the administrative process in the formulation of rules and regulations. A means of
obtaining participation in the rule-making process by unorganised interests is through the device of
antecedent publicity. When the subordinate legislature fails to comply with the certain procedural
requirements prescribed by the Parent Act or by the general law, it is known as procedural
ultravires. It is incumbent on the delegate to comply with these procedural requirements and to
exercise the power in the manner indicated by the legislature. It is a well-settled rule that an
absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be
22
obeyed or fulfilled substantially.
b) Publication: It is a fundamental principle of law that, "Ignorance of law is no excuse" (Ignorantia

juris non excusat) but there is also another equally established principle of law that the public must
23
have access to the law and they should be given an opportunity to know the law. M.P. Jain stated -
"It is essential, therefore that adequate means are adopted to publicize delegated legislation. So
that people are not caught on the wrong fact in ignorance of the rules applicable to them in a given
situation. The system of publication ought to be such that delegated legislation is not only made
known to the people, but it is also easy to locate as and when necessary".
In England: By the Rules Publication Act, 1893 certain provisions were made for the giving of
notice and inviting representations from interested public bodies. Under the statutory Instruments
Act 1946, certain provisions were made with a view to ensure that the public would be aware of the
delegated legislation.
24
In Johnson v. Sargant : The impugned order was passed on May 16, but was published on May,
17 the court held that the order could come into operation only on May, 17, I.e. when it was made
known.
In U.S.A.: Before 1935, there was no machinery for the publication of delegated legislation in
25
U.S.A: But after the Panama Case , the Federal Register Act was passed in 1935, requiring
publication of all regulations.
In India: Unlike England and America, there is no statutory provision requiring publication of
delegated legislation. Yet the courts have treated some sort of publication of delegated legislation
as an essential requirement for its validity.
Is the Requirement of Prior Publication of Delegated Legislation Mandatory: The requirement of

publication of delegated legislationjs mandatory and the defect of the publication of delegated
legislation gives a bad impact.
29
26
In Haria v. State of Rajasthan , the legislation in question passed by the. Council was neither
published nor was it made known to the general public through any other means. Holding its
publication necessary and applying the principle of Natural Justice, the Supreme Court observed:
The thought that a decision reached in the secret recesses of a chamber to which the public have no
access and to which even their accredited representatives have no access and of which they can
normally know nothing, can nevertheless affect "their lives, liberty and property by mere passing of
a Resolution without anything more is abhorrent to civilized man. It shocks his conscience.
Promulgation or publication of some reasonable sort is essential.
In Narendra Kumar v. Union of India, Section 3 of the Essential Commodities Act, 1955 required all
the rules to be made under the Act to be notified in the official Gazette. The principles applied by the
licensing authority for issuing permit for the acquisition of non-ferrous metals were not notified. The
Supreme Court held the rules ineffective.
Mode of Publication: A question may also arise about the mode, manner and method of
publication. As a rule a distinction must be drawn between the publication and method, mode and
manner of the publication. Even if the publication requirement is held to be directory and strict
compliance thereof may not be insisted upon.
The question of mode of publication of delegated legislation was considered by the Supreme Court
27
in State of Maharastra v. M.H. George . In this case Ayyanger, J. formulated guidelines regarding
the mode of publication of delegated legislation thus-
1) Where there is statutory requirement as to the mode or form of publication and they are such that in
the circumstances, the court holds to be mandatory, a failure to comply with those requirements
might result in their being so effective order the contravention of which could be the subject of
prosecution.
2) Where there is no statutory requirement, it is necessary that it should be published in the usual form
i.e. by publication within the country as generally adopted to notify all the persons of the making of
rules and
3) In India, publication in the official Gazette, viz, the Gazette of India is the ordinary method of bringing
a rule or subordinate legislation to the notice of persons concerned.
Publication as a Corollary of Natural Justice: Publication of delegated legislation has been taken by the
courts as a corollary of natural justice. Courts have treated publication of delegated legislation as an
essential requirement for its validity.
Effect of Delegated Legislation from the Date of Publication: Unless the rule making authority specifies
the date on which the rules shall come into force, the rule generally takes effect on the date of publication.
Once the delegated legislation is promulgated or published, it takes effect from the date of such
promulgation or publication.
Defect in Publication: In such statutes a provision is made that no act done or proceeding taken under the
Act shall be called in question merely on the ground of any defect or irregularity
30
in such act or proceeding, not affecting the merits of the case.
Finally it was submitted that the necessity and need of the publication of subordinate or delegated
legislation cannot however be underestimated.
28
In Srinivasan v. State of Karnataka , Chinnappa Reddy J. submitted that, "where the Parent Act or statute
prescribes the mode of publication" or promulgation that mode must be followed. Where the parent statute
is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of
publication may be sufficient, if reasonable.
c) Consultation: The term 'consult' implies a conference of two or more persons or an impact of two or
more minds in respect of a topic in order to enable them to evolve a correct or, at least satisfactory
solution of a problem. It is process which requires meeting of minds between the parties to
29
consultation on material facts to come to a right conclusion.
Object of Consultation: An important measure to check and control the exercise of legislative power by
the executive is the technique of consultation through which affected interests may participate in the rule
making process. This modus operandi is regarded as a valuable safeguard against misuse of legislative
power by the executive authorities. The Administration is not always the repository of ultimate wisdom. It
learns from the suggestions made by outsiders and often benefits from the advice.
Nature and Scope: Consultation does not mean consent, it postulates full and effective deliberation,
exchange of mutual viewpoints, meeting of minds and exchange of relative merits. Even when consultation
is not a legal requirement, such a step generates greater confidence of the persons who may be affected by
an action that may be taken by the authority.
In England, though there is no statutory provision requiring consultation of affected interests before the
making of sub-ordinate legislation, it is considered mandatory.
According to Griffith, such consultations are of two types - .
I. Ordinary Consultation Divided : Into 2 categories –
a) Individual Objections: They are by statutory provisions, e.g., factory laws. The proposed-
regulations are required to be published, objections are invited and opportunity of hearing is given
to the affected persons.
b) Consultation with Specified Interests: These consultations are with statutory advisory bodies or
local authorities, e.g., Traffic Advisory Committee.
II. Extra Ordinary Consultation: Also divided into two categories –
1) Preparation by Affected Interests: The power to draft regulations is delegated to the individual or
a group and the Minister becomes a confirming or approving authority.
2) Approval by Statutory Body: Some statutes provide for submission of the draft of the regulations
to a statutory body by the Minister and the report of that body is to be laid before Parliament.
31
In U.S.A., the technique of prior consultation is very much common. In the U.S.A., the Administrative
Procedure Act, 1946 make provisions for consultation requiring that interested parties should be given an
opportunity to participate in the rule making procedure.
In India, there is no general statutory provision requiring consultation with the affected interests in the
making of delegated legislation. But some statutes specifically provide for consultation which fall under the
following heads:
i. Official Consultation: The rule making power is delegated to a stipulation that it is to be exercised
in consultation with a named official authority or agency.
ii. Consultation with Statutory Bodies: The rule making power is conferred on the central
Government which can be exercised after consulting the Boards concerned.
iii. Consultation with Advisory Bodies: Here advisory bodies are constituted to assist the central
government or other subordinate authorities in framing rules.
iv. Draft Rules by Affected Interests: The power to form rules is directly conferred on the affected
interest.· Ultimately, the draft rules may be approved by the central Government after hearing
affected interests.
Effect of the Failure to Consult: In England the position requiring consultation has generally been
regarded as mandatory.
In India, 'the provisions regarding consultation were held to be mandatory in some cases and in some
cases it was directory.
30
As in Ibrahim v. Regional Transport Authority, consultation with the municipality was required to be made
by the Transport Authority before certain routes for public buses were fixed. The Supreme Court held it to be
merely directory.
31
On the other hand in Banwarilal v. State of Bihar the Supreme Court held that the provision under section
59 of the Mines Act requiring consultation with Mining Boards by the Central Government before framing
regulations was mandatory.
32
In Union of India v. S.H. Sheth in a different context while considering the legality of an order of transfer of
High Court judges under article 222 of constitution of India, the Supreme Court has elaborately discussed
the requirement of consultation.
Wad J. states, "Consultation of interest infuses law-making process with democratic forms, particularly in
what is called Bureaucratic legislation."
33
M.P. Jain rightly observes: "A consultative process can salutory safeguard against improper use of power
of delegated legislation as it infuses democratic norms in bureaucratic legislation."
Judicial Control: It is for a court to hold a fair, generous and liberal construction of all impugned statute
whether the legislature exceeded such limits. It is the duty of the court to strike down without any hesitation
any blanket power conferred on the executive by the legislature.
32
In the control mechanism, judicial control has emerged as the most outstanding controlling measure. It is
exercised by applying two tests:
1) Substantive Ultra Vires

2) Procedural Ultra vires.
Ultra vires means beyond powers. When a subordinate legislation goes beyond the scope of authority
34
conferred on the delegate to enact, it is known as substantive ultra vires. An act which is done in excess of
power is ultra vires.
When a subordinate legislation is enacted without complying with the procedural requirements prescribed
by the Parent Act or by the general law, it is known as procedural ultra vires.
Judicial control over delegated legislation is exercised by applying the doctrine of ultravires in a number of
35
circumstances.
1) Where Parent Act is Ultra Vires the Constitution: The constitution prescribes the limits within which
the legislature can act. If the parent Act or statute is ultravires the constitution and is bad for that reason,
delegated legislation is also necessarily bad and therefore can be challenged. When the Parent Act is
challenged on the ground of unconstitutionality, the nature and character of the statute is required to be
ascertained.
For that purpose, courts have evolved the doctrine of 'Pith and Substance' or true nature and character
36
of the statute.
The parent Act is declared ultravires the constitution if it violates the following limitations –
1. Express Constitutional Limits: The legislative powers of the union and the state are expressly
distributed in Article 246 of constitution of India. If legislature encroaches upon the exclusive sphere
of the other as demarcated in the 3 lists, such legislation will be ultra vires.
In such situation, the rule of pith and substance has to, be applied to determine the competence of
the legislature. Each general word should be held to extend to all ancillary or subsidiary matters
37
which can fairly and reasonable be comprehended in it .
2. Implied Constitutional Limits: These limits are those which where enunciated in Delhi Laws Act
38
case viz, laying down policy and enacting the policy into a binding rule of conduct. Legislation
cannot delegate essential legislative functions to any other agency and if it is so delegated the
Parent Act will be ultra vires the constitution.
3. Constitutional Rights: No legislature has competence to pass a law violative of the provisions of
commerce clause, right to property under Article 300-A or right to life and personal liberty under
Article 21. There is another ground on which the validity of Parent Act may be challenged, although
the statute is well within the legislative compliance, yet violates the provisions of part III of the
constitution by imposing what may be called an unreasonable restriction on the enjoyment of
fundamental rights.
33
2) Where Delegated Legislation is Inconsistent with Parent Act: The validity of delegated
legislation can be challenged on the ground that it is ultravires the Parent Act. Delegated legislation can
be held valid only if it conforms exactly to the power granted. Rules made by the subordinate authority
are always open to challenge on the ground that it is unauthorised. The validity of delegated legislation
is a matter if vires, that is, whether or not the power has been exceeded or otherwise wrongfully
39
exercised or is inconsistent with the Parent Act or Statute.
1) Delegated Legislation in excess of the power conferred by the Parent Act: If the subordinate
authority keeps within the powers delegated, the delegated legislation is upheld valid but if does
40
not, the court will certainly quash it,
41
In Chandra Bali v. R certain rules framed under the Northern Indian Ferries Act authorised the
making of rules for the purpose of maintaining order ensuring safety of passengers and property.
However, the delegates made rules forbidding the establishment of private ferries within the
distance of two miles from the boundaries of another ferry. The court held the rules ultra vires as
they were outside the scope of delegated power.
42
In Major Radha Krishan v. Union of India and others the Supreme Court has held that an
administrative action taken in exercise of powers under a rule cannot override the provisions of a
statute under which the rule was made. In this case an administrative action which was barred
under the provision of the statute was taken under a rule made there under getting over the statutory
provision. The court held the action to be null and void.
The question whether a particular piece of delegated legislation is in excess of the limits conferred
on the delegates has to be determined with reference to the specific provisions contained in the
relevant statute conferring the power to make the rule, regulations etc and the object and purpose of
the Act can be gathered from the various provisions of the enactment.
2) Delegated Legislation in Conflict with the Parent Act: The validity of delegated legislation can
be challenged on the ground that it is in conflict with any of the provisions of Parent Statute.
43
In White v. Morley, Channel L.J. observed, "A bye-law is not bad because it deals with something
that is not dealt with by the general law. But it must not alter the general law by making that lawful
which the general law makes unlawful; or that unlawful which the general law makes lawful.
44
Similarly, Krishna Iyer J. says, "A law has to be adjudged for its constitutionality by the generality of
cases it covers, not by the freaks and exceptions, it martyrs".
45
In Supreme Court Employees' Welfare Association v. Union of India, the Supreme Court has held
that, "the validity of the subordinate legislation can be challenged on such grounds as any other
legislative acts can be challenged."
After referring to a number of cases, the court concluded, "Where the validity of subordinate
legislation is in question, the court has to consider the nature, objects and the scheme of the
34
instrument as a whole and on the basis of that examination, it has to consider what exactly was the
area over which and the purpose for which, power has been delegated by the governing law.
3) Delegated Legislation in Conflict with the Prescribed Procedure of the Parent Statute: If
Parent statute prescribes procedure which must be followed by the administrative body while
exercising law-making power under it, if the procedure is not followed, the delegated legislation may
be declared bad. In considering the question of validity of delegated legislation on the ground of
procedure, the court looks to the intent rather than the form of law.
4) Malafide Bad Faith: In England, it is well settled that an Act passed by the competent legislature
cannot be questioned in the court on the ground that same was passed malafidely. Whenever the
legislature confers any legislative power on any administrative authority, the said power must be
exercised in good faith and on the proof of bad faith, the court can hold the exercise of power
ultravires.
In India, the fourts may consider the malafide exercise of power by the statutory authority. It may be
submitted that not only a delegated legislation but a statute passed by competent legislature and
even a Constitutional Amendment can be challenged as being malafide.
5) Unreasonableness: In England, it is well settled rule that the bye-laws made by corporations,
46
boroughs and other local bodies may be declared as ultravires. As de Smith observes, "there is no
reason or principle why a manifestly statutory instrument should not be held to be ultravires on that
ground alone"
47
In a leading case on unreasonableness of byelaws is Kruse v. Johnson, deciding the case, Lord
RusseI C.J., propounded the test of unreasonableness of delegated legislation as "Parliament
never intended to give authority to make such rules, they are unreasonable and ultravires. But at the
same time it should not be forgotten that such bye laws must be 'benevolently construed' and they
ought to be supported if possible.
In India, the principle is same as accepted in England. In India, the doctrine of unreasonableness of
48
delegated legislation has been based on a firm ground viz, Article 14 of the constitution. According
to the interpretation of Supreme Court, Article 14 which guarantees equality before law can now be
used to invalidate any law and action which is arbitrary or unreasonable. In a number of cases the
49
Supreme Court has established that Article 14 contains the principle of reasonableness. It has
been held that "the concept of reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is golden thread which runs through the whole of fabric of the
constitution. Accordingly, "every state action whether it be the legislature or of the executive or of
"an authority under Article 12" shall be struck down by the court, if it does not comply with
requirement of reasonableness.
3) Where Deleted Legislation is unconstitutional: Sometimes delegated legislation is consistent with

the provisions of the parent statute or delegating statute which may be constitutional and valid, yet the
delegated legislation may be held invalid on the ground that it conflicts the provisions of the constitution
itself.
50
211n Narendra Kumar vs Union of India , the validity of the Non-Ferrous Metal Control order, 1958
35
issued under section 3 of the Essential Commodities Act 1955, was challenged on the ground of its
unconstitutionality. The petitioner has not challenged the validity of the parent statute. The Supreme
Court held that even though a parent statute might not be unconstitutional, an order made by the
delegated legislation can still be unconstitutional and can be challenged as violative of the provisions of
the constitution.
IMPORTANT QUESTIONS
Q.1. What are the various means by which control is exercised upon delegated legislation? Discuss.
Q.2. Explain the methods of parliamentary control over delegated legislation.
Q.3. Define 'Subdeletation'.
Q.4. The ground of 'judicial review' of delegated legislation is-
a. Doctrine of pith and substance
b. Doctrine of delegate non potest delegare
c. Doctrine of abdication
d. Doctrine of ultra virus.
Q.5. What is meant by delegated legislation? Discuss the methods of judicial control over delegated
legislation?
36
UNIT - IV
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION
To govern a society smoothly, it is necessary that there must be a rule of law in the society and for the
execution of such rules and regulations there must be efficient administrative agencies and for this purpose
it is necessary to provide adequate freedom to the administrative agencies to enable them to carry on
effective administration. Such freedom or power must not be absolute one rather it is controlled by the
statutes which are the source of the power of administration and administrative agencies. There are various
modes of control exercised over the power' of administration. Legislative control, judicial control and
procedural control are exercised over the lawmaking power of the administration. Administrative action is a
State action and therefore it has to meet the test of constitutionality. If it violates the provisions of the
constitution it is' liable to be quashed by the courts.
Judicial Review: The most significant segment of the administrative law is pertaining to judicial review of
administrative action. The whole law of judicial control of administrative action is based on the assumption
that the real kernel of democracy lies in the courts enjoying the ultimate authority to restrain the exercise of
absolute and arbitrary power.
Judicial review is a great weapon in the hands of the judiciary. It comprises the power of a court to hold
unconstitutional and unenforceable any law or order based upon such law or any other action by a public
1
authority which is inconsistent or in conflict with the basic law of the land.
The power of judicial control is based on the fundamental principle that all the powers must be exercised
within the ambit of law. In this sense the basis of judicial review is the doctrine of intra vires. In determining
the validity of administrative action and decision, courts exercise supervisory jurisdiction and appellate
jurisdiction as well.
The mechanism of judicial control of administrative action has four distinct groups -
1. Special Leave Petition - Article 136

2. Supervisory Jurisdiction of High Court under Article 227
3. Extraordinary remedies under Article 32 and 226 and
4. Ordinary remedies by way of injunction, declaration etc.
I. Special leave Petition: The power of judicial review conferred on the Supreme Court under Article 136
is special or extraordinary in nature. This power is in the nature of a residuary reserve power of judicial
review.
Article 136 Special leave to appeal by the Supreme Court -

1. The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India.
2. Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.
37
Nature of Scope: Article 136 does not confer a right of appeal on any party, rather it confers a
discretionary power on the Supreme Court- to interfere in suitable cases to advance the cause of
justice.
Since the court has power to grant special leave to appeal against the decisions of the
administrative tribunals and adjudicatory bodies, it is now regarded as an important mode of judicial
review of administrative adjudicatory actions. The power to grant special leave is a residuary,
reserve power exercisable outside the purview of ordinary law where the needs of justice demand.
"The constitution for the best reasons did not choose to fetter or circumscribe the powers
2
exercisable under this article in any way".
Supreme Court may grant leave under Article 136 in the following circumstances where the tribunal
has acted in excess of jurisdiction or has failed to exercise its jurisdiction. properly or where there is
a patent error in a record or where the order is against the principles of natural justice or where any
relevant considerations have not been taken into account or where there is a miscarriage of justice.
Supreme Court may refuse leave in the ordinary circumstances where the alternative remedy is
available, or where the matter falls within the discretion of authority or where a new point is raised for
the first time before the Supreme Court or where the petitioner is unable to show the presence of
special circumstances to grant special leave.
Limitation: A petition for special leave to appeal can be filed in the Supreme Court within sixty days
from the date of judgement, final order or sentence involving death sentence or from the date of the
refusal of a certificate by the High Court or within ninety days from the date of the judgement or order
3
sought to be appealed.
According to the Supreme Court sources, the court has imposed certain limitations on its own
powers. When the Supreme Court reaches the conclusion that a person has been dealt with
arbitrarily or a court or tribunal has not given a fair deal to a litigant, then it gives special leave to
appeal.
ii. Supervisory Jurisdiction of High Courts

Relevant Constitutional provision-Article 227 of Constitution: Article 227 of the constitution
confers on every High Court the power of superintendence over all the subordinate courts and inferior
tribunals in the State. It read as under –
Article 227- Power of superintendence over all courts by the High Court-
1. Every High Court shall have superintendence over all the courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
2. Without prejudice to the generality of the foregoing provision, the High Court may -
a) Call for return for such courts,
b) Make and issue general rules and prescribe forms for regulating the practice and proceedings of
such courts and
38
c) Prescribe forms in which books, entries and accounts shall be kept by the officer of any such court.
3. The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of
such court and to attorneys, advocates and pleaders practicing therein:
Provided that any rule made, forms prescribed or tables settled under clause (2) or clause (3) shall
not be inconsistent with the provisions of any law for the time being in force, and shall require the
previous approval of the Governor.
4. Nothing in this article shall be deemed to confer on a High Court powers of superintendence over
any court or tribunal constituted by or under any law relating to the Armed Forces.
Jurisdiction of High Court under Article 227 is revisional and not appellate, hence limited and
restrictive in nature. It may be exercised for want of jurisdiction, errors of law, perverse findings,
4
gross violation of the principles of Natural Justice and in case of Miscarriage of justice. Article 227
casts a duty upon the High Court to keep the inferior courts and tribunals with in their domain and
perform their duties in accordance with the law.5 The supervisory power under Article 227 is
extraordinary in nature and does not confer any right to claim such remedy by the party. It is upon
the discretion of the High Court and normally High Court may refuse to exercise such power if an
alternative remedy is available. However, the existence of alternative remedy is not a constitutional
bar to exercise power under Article 227. The power of superintendence of High Court under Article
227 is not confined to administrative superintendence only. Such power: includes judicial review
also.
iii. Extraordinary Remedies Under Article 32 and 226 of the Constitution or Prerogative Remedies:
Judicial Control over administrative action is exercised through the constitutional extraordinary
remedies as provided under Article 32 and 226 of the constitution. These provisions empower the
Supreme Court and High Courts to issue writs in the nature of habeas. corpus, mandamus, prohibition,
quo-warranto and certiorari for the enforcement of Fundamental Rights and also for other purposes
Article 32 and 226 read as under:
Article 32 - Remedies for enforcement of right conferred by this part –
a. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this part is guaranteed.
b. The Supreme Court shall have power to issue directions, orders, or writs, including writs in the
name of habeas corpus, mandamus, prohibition, quo warrant and certiorari whichever may be
appropriate, for the enforcement of any of the rights conferred by this part.
c. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (1), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2)
d. The right guaranteed by this Article shall not be suspended except as otherwise provided for by the
constitution.
39
Article 226 - Power of High Court to issue certain writs –
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, and Government, within their territories directions, order or writs, including writs
in the name 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.
2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority
or person may also be exercised by any High Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such person is not
within those territories.
3) Where any part against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
a. Furnishing to such party copies of such petition and all documents in support of the plea for such
interim order and
b. Giving such party an opportunity of being heard, makes an application to the High Court for the
vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date on
which the copy of such· application is so furnished, whichever is later, or where the High Court is
closed on the last day of that period before the expiry of the next day afterwards on which the
High Court is open, and if the application is not so disposed of, the interim order shall, on the
expiry of that period or, as the case may be, the expiry of the said next day, stand vacated.
The power conferred on a High Court by this Article shall not be in derogation of the power
conferred on the Supreme Court by clause (2) of Article 32. The power vested in High Court by
virtue of Article 226 has wider implication. In other words, it can be said that Supreme Court has
limited area of Article 32. It can be issued only in case of the violation of fundamental rights by
the State and High Court can issue writs and directions in case of the violation of fundamental
rights as well as legal rights by state or any person.
4) Ordinary Remedies by Way of Injunctions, Declaration-Remedies available by virtue of Article

32, 136, 226, 227 are discretionary and extra-ordinary in its nature. Therefore, in these
circumstances, the ordinary remedies are provided by the courts to the person aggrieved. These
ordinary remedies are free from the technicalities of writs for example rule of locus standi, nature of
administrative act, authorities etc. Ordinary law of land empowers the courts of land to provide
justice by way of injunction etc. These ordinary remedies are also a check upon the wrong
administrative actions.
PREROGATIVE REMEDIES
Writs: Writ jurisdiction as designed under Article 32 and 226 of Indian constitution empowers Supreme
Court and High Courts to issue directions and writs for the enforcement of fundamental rights and for any
40
other purpose respectively. By virtue of these articles Supreme Court and High Courts are empowered to
take the Judicial review of administrative actions and keep them within their legal domain. Article 32
provides two fold remedy, first is life- the form of the enforcement of the fundamental right and second is that
it is in itself a fundamental right. Article 32 plays a key role in the protection of fundamental rights as it is said
to be the protector and guarantor of fundamental rights. Same writ jurisdiction is vested in High Court under
Article 226; it is wider than the jurisdiction of Supreme Court in its implication as writs and directions can be
issued for the enforcement of fundamental rights and for other purposes. It can be issued to the State or to
any person or authority. Supreme Court and High Courts, both have concurrent jurisdiction over the matters
in case of the violation of fundamental rights and in all the cases of writs under Article 32 and 226, where the
issue of public law review are involved. Under these articles, only the validity of law is not challenged by the
petitioners but also the administrative action which is taken under the authority of law and by which the
concerned right has been adversely affected.
Against Whom Writs can be Issued: The general principle for the application of writ jurisdiction is that
centre of power should not be acted arbitrarily and governing power must be subject to the fundamental
6
constitutionallimits. A writ will lie against the State and statutory bodies and authorities charged with the
public duties. In certain exceptional circumstances, a writ may lie against a private person also. The
expansive and extra ordinary powers of High Courts under Article 226 indicate and so can affect any
7
person-even a private individual.
A writ of Habeas corpus can be issued not only against the 'State' but also against a private person.
According to Hidayatulla, J. the writ of Haqeas corpus issues not only for release from detention by the
State but also for release from private detentioq. Apart from the writ of habeas corpus, there are certain
other provisions in the part III of Indian Constitution which indicate that the writ can be issued against a
8
private person.
Who May Apply :As per the traditional rule, the person aggrieved or a person who has suffered a legal
injury by the reason of violation of his legal right or fundamental right is entitled to challenge an act or
decision legally because he has the legal capacity to challenge the same. This rule is in regard to locus
9
stand. The Supreme Court said in a case that the Article in term does not prescribe the classes of persons
entitled to apply thereunder, but it is implicit in the exercise of the extraordinary jurisdiction that the relief
asked for must be one to enforce a legal right. Exception is made in case of a petition of habeas corpus
10
where any person can file a writ petition for the release of a person in illegal detention public or private. A
writ of quo-warranto also can be filed by any person to challenge the appointment of a person to public
office without any personal interest in it. But according to the changing needs of the society, judiciary opts
for a progressive trend and now courts have started realising the public purpose which public law review
serves in an intensive form of society. The essential purpose of judicial review is not so much the
enforcement of rights as the control of administrative action. Therefore, if there is a patent error or mistake
in administrative action, any person can challenge such error or maladministration and courts ought not to
raise any objection in reviewing such action on the technical ground of locus standi. A pragmatic approach
to social justice compels us to interpret constitutional provisions liberally with a view to implement the public
policies effectively. The Rule of locus standi must be Iiberalised with the changing needs of the time. "Ubi
jus ibi remidium" must be enlarged to embrace all interests of public-minded citizens or organisations and
to promote justice in all its facets. This new trade of judiciary enunciated the concept of public interest
litigation. PIL is a part of the process of participative justice and now not only the person aggrieved but any
other individual having no personal interest in a matter also is able to bring the matter before the court
provided such action should be taken in the interest of public bonafidely.
41
PIL (Public Interest Litigation)
Nature: Public Interest Litigation is a totally different field of litigations from the ordinary traditional litigation.
Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual
against another as happens in the case of ordinary litigation, rather it is intended to promote and vindicate
the public interest which demands the violations of constitutional or legal rights of a large number of people
who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and
unredressed.
Object: PIL is a challenge and an opportunity to the government and its officers to make basic human rights
meaningful to the deprived and vulnerable sections of the society and to assure them social and economic
justice which is one of the goals of our constitution. The role of judiciary is creative rather than passive, and
it assumes a more positive attitude in determining factors.
Writs in Particular
Habeas Corpus -
Introduction and Meaning: The writ of Habeas Corpus is one of the most ancient writs known to the
common law of England. It is one of the most invaluable writs of the legal remedies, which a person enjoys,
in a democratic government. The Latin phrase 'Habeas Corpus' means 'have the body'. This writ is in the
nature of an order, calling upon the person, who has detained another to produce the latter before the court.
It is necessary to let the court know on what grounds he has been confined and to set him free if there is no
11
legal jurisdiction for the detention.
History: In England, Habeas Corpus is of common law origin. It was the remedial counterpart of (he
substantive right of freedom against arbitrary detention guaranteed by the Magna Carta.
In India, the jurisdiction to issue any of the prerogative writs did not form part of the power of any judge or
court until the establishment of Supreme Court by the Regulating Act 1773. In 1774, by a charter it
conferred the power to issue writs on each of the justice of that court.
The Criminal Procedure Code 1898, conferred power on the presidency High Courts to issue directions in
the nature of Habeas Corpus. The Criminal Law Amendment Act of 1923, amended Section 491 of the
criminal procedure code to extend the jurisdiction of Habeas Corpus to the appellate jurisdiction of the High
Court also.
Constitutional Position in India: Under the Constitution of India, the Supreme Court under Article 32 and
High Court under Article 226 were empowered to issue a writ of Habeas Corpus.
Object: The writ of Habeas Corpus provided a prompt and effective remedy against illegal restraint.
Lord Wright: The incalculable value of Habeas Corpus is that it enables the immediate determination of
the right of the appellants freedom.
Thus, the object of writ of Habeas Corpus is to releaset a person from the illegal detention and not to punish
the detaining authority.
42
Black Stone: It is a writ antecedent to statute and throwing its root deep into the genus of our common law.
It is perhaps the most important writ known to the common law of England, affording as it does a swift and
imperative remedy in all cases of illegal restraint or confinement.
12
Who May Apply: A petition for the Wirt of Habeas Corpus may be made by the person illegally detained. If
the person himself is unable to make such petition it can be made by any other person having interest in the
13
prisoner as wife, father or even a friend. The applicant should not be a total stranger.
Against Whom Habeas Corpus Would Lie: A Writ of Habeas Corpus may be issued against any person
or authority who has illegally detained or arrested the prisoner. And now according to the new judicial trend,
Habeas Corpus is available against an individual also.
Procedure: Every application of Habeas Corpus must be accompanied by an affidavit stating the facts and
circumstances leading to the making of such an application. If the court is satisfied that there is a prima facie
case for granting the prayer, it will issue a rule mini calling upon the detaining authority on a specific day to
show cause. If the court is of the opinion that the detention was not justified, it will issue Writ and direct the
detaining authority to release the prisoner. The court has jurisdiction to grant interim bail pending disposal
14
of a petition. In some exceptional circumstances, a petition is maintainable even if the person is not
15 16
actually detained. In case of Lacchhu Devi v, Union of India, Bhagwati J. observed that the Supreme
Court was not to follow strict rule of pleading nor the place of the application for Habeas Corpus. Even a post
card written by a detenue front jail had been sufficient to activate the court into examining the legality of the
detention.
Delay in Applying: The right of personal liberty is one of the fundamental rights (under Article 21) and it can
not be waived. Moreover, wrongful detention or arrest of a person is a continuous wrong and the injury
subsists till it is remedied. A petition for a writ of Habeas Corpus cannot be dismissed on the ground of delay
only.
Grounds for Issuing the Habeas Corpus: As per the traditional functions of such type of Writ, unlawful or
unauthorised detention or arrest could be a ground for issuing the Writ of Habeas Corpus. However, in case
17
of Sunil Batra v. Delhi Administration judiciary opted for a new dimension for the issuance of Writ of
Habeas Corpus. A letter, written by the convict of the above case on the subject matter of inhuman
treatment to a fellow convict was treated as a petition of Habeas Corpus by Krishna Iyer J. Thus, the
Supreme Court has widened its scope by giving relief through the writ against inhuman and cruel treatment
meted out to prisoners in the jail. The base of such a new facet for the issuance of the Writ of Habeas
Corpus is the followance of rules of natural justice and fair and just law.
When it may be Refused: Since the object of Habeas Corpus is remedial and not punitive, the Writ would
not be issued if the time of rule mini, the prisoner was not illegally detained, even though at the time of
18
detention, the orders were illegal,
If during the pendency of the petition for the Writ of Habeas Corpus the prisoner is released, it will become in
19
fructuous.
Duty of State: When an action of detaining or arresting of any individual is challenged, it is the duty of the
43
State to place before the court all the relevant and material facts leading to the impugned action truly,
faithfully and with utmost fairness.
Duty of Court: Judges have played a historic role in guarding the freedom with zeal and jealously. When a
person is in illegal custody, it is the duty of the court to safeguard his freedom against any encroachment on
20
his life or personal liberty. It is the duty of the court to strike a balance between the needs to protect
community on the one hand and the necessity to preserve the liberty of a citizen on the other hand.
Successive Application for Habeas Corpus: A person has no right to present successive applications for
21
the Writ of Habeas Corpus. But if there are some new or fresh grounds, the same person can approach the
22
court subsequently for the writ of Habeas Corpus.
Compensation: Ordinarily in the issuance of Writs, the court will not award compensation. But in
appropriate cases the court may award compensation to the victim. According to the learned judges in case
23
of Rudal Shah v. State of Bihar, 'one of the telling ways in which the violation of the right can reasonably be
prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the
payment of monetary compensation.
Execution: A Writ of Habeas Corpus issued by the Supreme Court or by a High Court must be obeyed by
the person to whom it is issued. A willful interference by the person to whom it is issued would amount to
contempt of court and would be punishable with the attachment of property and even imprisonment of the
contemnor.
MANDAMUS
Meaning: Mandamus is a command which is issued by a court to an authority asking it to perform a public
duty imposed upon him by the constitution or any other law.
Nature and Scope: Mandamus is a judicial remedy issued in the form of an order from the Supreme Court
or High Court to any constitutional, statutory or non-statutory agency, corporate or public authority to do or
to forbear from doing something which that agency is obliged to do or refrain from doing under the law and
which is in the nature of a public duty or statutory duty.
Conditions for the Grant of Mandamus: The Writ of Mandamus can be issued if the following conditions
are satisfied by the petitioner.
a. Legal Right: For the grant of mandamus the applicant must have a right to compel the performance of
some duty cast on the authority and such right must belong 'to the petitioner. However, it does not mean
that a person can not enforce a public right which does not specifically belong to any individual. These
must be imposed on the authority either by statute or constitution or by some rules of common law but
should not be contractual.
b. Demand and Refusal: The petition for a Writ of Mandamus must be preceded by a demand of justice
and its refusal. In Halsbury's Law of England, it is stated - "As a general rule the order will not be granted
unless the party complained of has known what it was he was required to do. So that he had the means
of considering whether or not he should comply and it must be shown by evidence that there was a
distinct demand of that which the party seeking the mandamus desires to enforce and that demand was
met by a refusal" The above principles are accepted in India also.
44
c. Good Faith: Such an application must have been made in good faith and not for any ulterior motive or
purpose.
Who may Apply: A person whose right has been infringed may apply for the writ of mandamus but such
right must be subsisting on the date of filing the petition.
Against Whom Mandamus Would Lie: Writ of mandamus is available against parliament and
legislatures, against the court and tribunals, against Government and its officers, against local authorities
like municipalities, panchayats, against state owned or state controlled corporation against universities,
against election tribunals and against other authorities falling within the definition "State" U/Article 12 of the
constitution of India.
Against Whom Mandamus Would not Lie: Writ of mandamus would not lie against the president or the
Governor of the State for the exercise and performance of power and duties of his office and for any act
done or purporting to be done by him in exercise of such power or duties. It will not lie against an inferior or
ministerial officer who is bound to obey the order of his superior. It does not lie against a private individual or
any incorporate body.
Alternative Remedy: Writ of mandamus will not be refused on the ground of alternative remedy being
available if the petitioner approaches the court with an allegation that his fundamental right has been
violated. But if allegation is not about the infringement of fundamental right, the availability of alternative
remedy may be a relevant consideration. If revision or appeal is available then mandamus may be refused.
Conclusion: In India, Writ of mandamus is the most popular writ, extensively and successfully used by
aggrieved persons. Since the object of public law is to make functioning of administrative bodies in an
efficient manner yielding the best results to the state, society and the individuals without undue delay or
costs, it is the duty of the courts to hold this process through the instrumentality of Writs more particularly by
a Writ of mandamus.
Writ of Prohibition
Meaning: Writ of Prohibition is an order given by the Superior Courts to the inferior Courts or tribunals in
case of want of jurisdiction or excessive jurisdiction.
Nature and Scope: A Writ of Prohibition is a judicial Writ. The principle underlying the writ of prohibition is
that 'prevention is better than cure'. This writ can be issued against a judicial or quasi judicial authority,
When a subordinate court or an inferior tribunal hears a matter, over which it has no jurisdiction or
exceeding its jurisdiction, the High Court or Supreme Court can prevent it from usurping jurisdiction and
keep it within its jurisdictional limits.
Grounds-
1) Absence or Excess of the Jurisdiction: In case of total lack of jurisdiction, such writ can be issued
against a judicial or quasi-judicial authority prohibiting it from exercising jurisdiction not vested in it.
For instance, if a taxing authority proposes to impose tax on a commodity exempted there has to be
a ground for the issuance of such writ. Such lack of jurisdiction must be patent and apparent on face
of the record which prevents a lengthy enquiry into question of fact for the establishment of the want
45
of jurisdiction. In case of exceeding the jurisdictional limits, writ of prohibition can be issued also. But
where a tribunal or court has the jurisdiction to make an order, but, in the exercise of that jurisdiction,
it commits a mistake, it can be corrected by an appeal or revision and not by a writ of prohibition.
2) Violation of Natural Justice: A writ of prohibition can also be issued when there is a violation of the
principles of natural justice. For instance, if there is bias on the part of the judge or if no notice was
issued or hearing given to the person against whom the action is sought to be taken, there is no
jurisdiction vested in the court or the tribunal to proceed with such matter.
3) Unconstitutionality of Statute: The writ of prohibition can be issued if the court or tribunal
proceeds to act under a law, whose constitutionality is challenged or which itself is ultravires of any
of the provision of constitution or is beyond the competence of the legislature.
4) Infringement of Fundamental Rights: Prohibition can also be issued where the impugned action
infringes the fundamental rights by an arbitrary order passed by any subordinate court or tribunal.
Who can Apply: In case of apparent defect of jurisdiction, an application for prohibition can be brought not
only be the aggrieved party but also by a stranger.
Against Whom Prohibition Would Lie: A writ of prohibition is a judicial writ and may be issued against the
subordinate courts, tribunals and other quasi-judicial authorities such as tax authority.
Against Whom Prohibition does not Lie: Prohibition does not lie against administrative authorities from
discharging administrative executive or ministerial functions. It would not lie against legislature restraining
it from enacting or enforcing a law.
Alternative Remedy: Prohibition is a writ of right and not discretionary. Existence of alternative remedy is a
matter which may be taken into consideration by the High Court in granting a writ of prohibition but it is not
an absolute bar to the issuance of such writ.
Conclusion: Writ of prohibition lies in case of lack of jurisdiction or excess of jurisdiction. If the defect is
apparent, it is not only the power but the duty of the Superior courts to issue this writ to prevent subordinate
courts or inferior tribunals from the usurpation of jurisdiction.
Certiorari
Nature and Scope: Certiorari "means "to certify". It is so named as in its original Latin form it required - "the
judge of any inferior court of record to certify the record of any matter in the court with all things touching the
same and to send it to the king's court to be examined. It is an order issued by Supreme Court Under Article
32 and by High Court under article 226 of Indian constitution to an inferior court or any authority exercising
judicial or quasi judicial functions to transmit to the court the records of proceeding pending therein for
security and decide the legality and validity of the orders passed by them.
Object: The object of certiorari is to keep all subordinate courts and inferior tribunals and quasi judicial
authorities within their jurisdiction. If they act in excess of their jurisdiction, their decisions can be quashed
by superior courts by issuing this writ.
Conditions-
46
1) The judicial or quasi judicial body must have legal authority.
2) Such authority must be an authority to determine questions affecting rights of subjects.
3) It must have duty to act judicially, and
4) It must have acted in excess of their jurisdiction.
Grounds : A writ of certiorari may be issued on the following grounds –

1) Error of Jurisdiction: When an inferior court or tribunal acts without jurisdiction in excess of its
jurisdiction or fails to exercise proper jurisdiction vested in it by law, a writ of certiorari may be issued
against it.
24
For instance in case of RV. Ministers of Transport even though the minister was not empowered to
revoke the licence, he had passed an order of revocation of licence. The order was quashed on the
ground that it was without jurisdiction and therefore 'ultra vires'
2) Jurisdictional Fact: Lack of jurisdiction may also arise from the absence of some preliminary ,
every must exist before a tribunal exercises its jurisdiction. They are known as jurisdictional are
material facts. If a jurisdictional fact does not exist, the court or tribunal cannot act. If an inferior court
or a tribunal wrongly assumes the existence of such a fact, a writ of certiorari can be issued.
25
In a case Supreme Court held that the satisfaction of the statuary authority was a jurisdictional fact
and the power can be exercised only on the existence thereof. But if an inferior court or tribunal acts
within the jurisdiction vested in it, the writ of certiorari cannot be issued against.
3) Error Apparent on Face of Record: If there is an error of law, which is apparent on the fact of
record, a decision of an inferior court or tribunal may be quashed by a writ of certiorari. If an inferior
court or tribunal takes into account irrelevant considerations or does not take into account relevant
considerations or erroneously admits in admissible evidence or refuses to admit admissible
evidence or if the finding of fact is based on no evidence, it can be said that there is such an error.
But an error of fact, however grave it may appear to be, cannot be corrected by the writ of certiorari.
26
In Ujjam Bai v. State of U.P., the question was regarding one of the interpretations of a notification.
Due to the wrong interpretation of the said notification, tax imposition was challenged by the
petitioner. The Supreme Court refused to interfere under Article 32 and observed:
"Where a quasi judicial authority has jurisdiction to decide a matter, it does not arrose its jurisdiction
by coming to a wrong conclusion, whether it is wrong in law or in fact.
4) Violation of Natural Justice: A writ of certiorari can be issued when there is a violation of principles
of natural justice.
5) Other Grounds: A writ of certiorari can also be issued when there is an infringement of fundamental
right of the petitioner or where the order passed by the inferior court or tribunal is malafide. While
quashing the order of dismissal, the court can also grant consequential benefits of re-instatement in
27
service payment of basic wages etc.
Who may Apply: Normally the party whose rights are affected may apply for a writ of certiorari. But if the
question affects the public at large, any person may apply.
Where the application is made by the aggrieved party, the court shall grant relief exdebito justitiae, but it is
28
made by a party not directly affected in the litigation, to grant a writ is entirely in the discretion of the court.
47
Against Whom it Would Lie: Certiorari (a judicial writ) lies against subordinate courts, inferior tribunals,
quasitribunals, quasi judicial bodies and authorities. Even if the court or tribunal ceases to exist or becomes
29
fuscous officio certiorari can still be issued against it.
Alternative Remedy: A writ of certiorari is a discretionary remedy and the fact that the aggrieved party has
another adequate remedy may be taken into consideration and it may not be issued on that ground.
Limits: A writ of certiorari can never be issued to call for the record of papers and proceeding of an act or
ordinance and for quashing such act or ordinance.
Conclusion: A writ of certiorari controls all courts, tribunals and other authorities when port to act without
jurisdiction or in excess of it. It is also available in case of the violation of the principal of natural justice. Over
and above judicial and quasi judicial bodies, now writ is also available against administrative- orders.
Quo Warranto
Nature and Scope: Literal meaning of quo warranto is 'what is your authority'. It is a judicial remedy against
any public officer or franchise. By using this writ, the person concerned is called upon to show to the court by
what authority he holds the office. If he has no authority to hold such office, he can be ousted from its
enjoyment. This writ also protects the right of the holder of such office in case of unlawful deprivation from
30
his office.
Object: By this writ, judiciary can control executive action in the matter of making appointments to public
offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office
to which he may have a right. .
Conditions Necessary for the Grant of Quo Warranto-
1) The office must be of a public nature. It means an office in which public has an interest. and the holder of
such office has no legal authority to hold the said office. The writ will not lie in respect of office of a private
nature."
2) The office must have a substantive character i.e. must be an independent office and the holder of such
office also must be an independent official not mere subordinate.
3) The office must be statutory or constitutional. Thus a writ of quo warranto may be issued in respect of
offices of Prime Minister, Advocate General etc.
4) The holder must have asserted his claim to the office.
Who may Apply: The application for a writ of quo warranto challenging the legality and validity of an
appointment to a public office is maintainable at the instance of any private person even though he is not
personally aggrieved or interested in the matter. The object of such writ is to prevent a person who has
wrongfully usurped a public office from continuing in that office.
When may be Refused: Quo warranto is a discretionary remedy. It cannot be claimed as a matter of right..
The grant of such writ may be refused by the court after taking into account the facts and circumstances of
the case. In case of vexatious issuance of such writ or where there was an acquiescence on the part of
48
petitioner, if holder of an office has ceased to hold the office in question, the grant of such writ may be
refused.
Alternative Remedy: If an alternative and equally effective remedy is available to the applicant a writ may
not issue quo warranto and relegate him to avail of that remedy. Existence of alternative remedy however
does not act as an absolute bar.
Delay- Cause of action for a writ of quo-warranto is a continuous one. If the appointment of an officer is
illegal, every day that he acts in that office, a fresh cause of action arises and petition cannot be dismissed
on the ground of delay.
Conclusion: The issuance of such writ assure that an usurper or an intruder cannot be allowed to retain
public office any more. It is the duty of the court that as soon as possible it takes an action upon the petition
regarding the writ of quo-warranto and declares that person in question is not entitled to hold the office and
to restrain him from acting as such.
DECLARATION
It is a relief based upon the rules of equity and it gives the remedy to the person aggrieved in the form of
declaration of his rights without giving any further relief. The essence of declaration is that it states the rights
or the legal position of the parties as they stand, Without altering them in any way though it may be
supplemented by other remedies in suitable cases.
In the field of administrative law, the importance of declaratory action can not be underestimated. de Smith
States "A public authority uncertain of the scope of powers which it wishes to exercise but which are
disputed by another party may be faced with the dilemma of action at the risk of exceeding its powers or
inaction at the risk of failing to discharge its responsibilities, unless it is able to obtain the authoritative
guidance of a court by bringing a declaratory action. It is equally for the public benefit that an individual
whose interests are immediately liable to sustain direct impairment by the conduct of the administration
should be able to obtain in advance a judicial declaration of the legal position".
Declaration is a discretionary relief and the object of granting declaration is removal of existing controversy
and to avoid chances of future litigation. Declaration can be refused if the question is academic and has not
actually arisen.
Section 34 of Specific Relief Act, 1963 provides for a declaratory action in respect of any legal character or
any right as to any property where it is questioned.
Generally, a declaration cannot be obtained without praying for consequential relief. The proviso to section
34 of Specific Relief Act provides that plaintiff has to claim further relief if he can. If the consequential relief is
not claimed by the plaintiff, the suit for declaration is liable to be dismissed because here the basic object of
declaration is to avoid the multiplicity of suit and to make the procedure uncontroversial.
INJUNCTION
An injunction is an order of a court addressed to a party to proceed before it, requiring it to. refrain from
doing, or to do, a particular act.
It is an equitable remedy. It is a judicial process by which the person who has invaded or is threatening to
invade the rights whether legal or equitable of another person is refrained from continuing or commencing
49
such wrong act.
Injunctions are of two types-

1) Prohibitory injunction
2) Mandatory injunction.
Sometimes it can be divided into two categories as-Temporary injunction and Perpetual injunction.
In the administrative law, injunction is granted in case of an ultravires act done or purported to be done by an
administrative authority. It is the negative aspect of injunction. Sometimes, this remedy may be positive and
mandatory in nature and an administrative authority may be ordered to do a particuiar act which it is bound
to do.
Injunction is a discretionary remedy but it must be exercised judicially and not arbitrarily. The plaintiff must
be an 'aggrieved person', and he must go to the court with clean hands. It is based upon the principle of
equity - 'he who seeks equity must go before the court with clean hands. If plaintiff has an alternative relief
then court can refuse to grant injunction.
Temporary Injunction and Perpetual Injunction: Section 37 and 38 of Specific Relief deals with both
categories of injunctions.
Temporary injunctions can be granted by the court at any time, at any stage of proceeding till the specified
period in the order itself or untill the further order of the court. Such orders are regulated by the code of civil
procedure, 1908 (order 39).
Perpetual injunction can only be granted by the court at the final disposal of the case upon merits and
temporary injunction can be converted into perpetual injunction subsequently.
Section 39 of Specific Relief deals with the mandatory injunction. When to prevent the breach of an
obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing,
the court may in its discretion, grant an injunction to prevent the breach complained of and also to compel
performance of the requisite acts.
LIABILITY OF GOVERNMENT
Contractual Liability
Position Prior to the Commencement of Constitution: Before the commencement of the constitution,
contractual liability of Govt. in case of breach was recognised. East India Company was responsible for the
commercial activities in India and it was held by the Supreme Court of Calcutta in a case31 that the East
India Company was subject 0 the jurisdiction of the municipal courts in all matters and proceedings
undertaken by them as a private trading company. Such liability of Govt. has been recognised in a number
of statutes.
Position after the Commencement of the Constitution: The contractual liability of Union and State is
recognised by the constitution itself under Article 294, 298, 299 and 300.
50
Article 298 expressly provides that the executive power of the union and 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 lays down the following conditions and requirements which must be fulfilled in contract made by
or with Union or State:
1) All such contracts must be expressed to be made by the president or the Governor as the case may
be.
2) All such contracts are to be executed by such persons and in such manner as the president or the
Governor may direct or authorise and
3) All such contracts made in the exercise of the executive power are to be executed on behalf of the
president or the Governor as the case may be -
I. A contract must be in writing, the words 'expressed to be made' and 'executed' in this article
clearly show that there must be a formal written contract executed by the duly authorised
person. An oral contract is not binding upon the Govt.
ii. Such contract can be entered into on behalf of the Govt. by a person authorised for that purpose
by the president or the Govt. as the case may be. If said contract is signed by an unauthorised
person, the same cannot be binding upon the Govt.
iii. Such contract must be expressed in the name of the president or the Governor as the case may
be. It must be clearly stated in the contract that it is executed 'on behalf of President or Governor'
as the case may be.
Effect of the Noncompliance of the Mandate under Article 299(1): 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 Govt.
32
In case of B.K. Mondal, it was held by the Supreme Court that in case of noncompliance with the provision
of Article 299(1), a suit is not maintainable against the Govt. but Govt. can ratify its liability subsequently. But
33
in case of Mulamchand v. State of M.P. the Supreme Court held that if the contract was not in accordance
with the constitutional provision, it was not a contract at all in the eye of law; therefore it can not be ratified
subsequently.
Effect of Compliance of Article 299(1)
The contract is a valid contract and it can be enforced by or against the Govt. and the same is binding on the
parties thereto.
Article 299(2) provides immunity to the president or Governor and also to the person who executed such
contract on behalf of the president or Governor from the personal liability.
Quasi-Contractual Liability
51
According to Section 70 of Indian Contract Act, 1935, 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 for said service arises on the basis of quasi-contractual relations. Thus, section 70 of Indian
contract Act prevents 'unjust enrichment'.
The provision of section 70 may be invoked by the aggrieved party if the following three conditions are
satisfied.
1) The person should lawfully do something for another person or deliver something to him.
2) At the time of doing or such delivery, he must not intend to act gratuitously.
3) Other person for whom something is done or to whom something is delivered must enjoy the benefit
thereof.
Conclusion: Mandatory provisions under Article 299(1) were inserted to provide safeguard to govt.
against authorised contracts."On the other hand, an officer entering into a contract on behalf of govt. can
always safeguard himself by having recourse to the proper form.
Applicability of Writ Jurisdiction
1) Where a petitioner makes a grievance of breach of promise on the part of State, such obligations
were held to be enforceable under article 226 by applying the promissory estoppel against govt.
2) Where the contract is entered into between the an individual and state in exercise of some statutory
power or authority, the breach complained of is a statutory obligation and therefore an action of
public authority can be challenged through petition.
3) Where the contract entered into between State and individual is not statutory but purely contractual,
the rights of the parties flow from mere terms of the contract entered into by the State, and a party to
such contract cannot invoke writ jurisdiction of the Supreme Court Under Article 32 or of High Court
Under Article '226 of the constitution of India.
Tortious Liability
The liability of the State or administration in tort is governed by the principles of public Law inherited from
British Common Law and the provisions of the constitution.
In England, before 1947, the crown enjoyed immune status regarding the torts committed by his employees
because of the maxim 'king can do no wrong'. After the enactment of the crown proceeding Act, 1947 the
above position has changed and now the king may become vicariously liable to a very large extent for the
torts committed by its servants.
In USA, the Federal Tort claims Act, 1946, defines the tortious liability of the government but government is
not liable for any tort committed in discharge of statutory duties as long as duties are performed with due
care and caution.
In India, this topic can be studied in the phases:
52
Before the commencement of Constitution of India -
The liability of government is co-extensive with that of secretary of State Under Section 32 of the
Government of India, Act, 1915 which in turn made it co-extensive with East India Company through
Section 65 of Government of India Act, 1858.
34
Leading case on this matter was P and a Steam Navigation Co. Vs Secretary of State in this case Court
allowed an action against the Secretary of State for the negligent act of government workers. The Court
Stated that where an act was some in exercise of 'sovereign powers' no action would lie against State. If the
company were carrying on activities which could be carried on by private persons, the company would be
liable for the torts committed by its servants.
After the commencement of Constitutional India -
Article 300 of Indian Constitution deals with the extent of the liability of Union of India and the government of
a State.
35
In State of Rajasthan Vs Vidyawati. , it was vicariously liable for the negligence of the driver of collector
who fatally injured Vidhyawati's husband. In this case the court seemed to be suggesting that it would not
hold the government immune from the tortious acts of its servants whether committed in exercise of
sovereign or non sovereign functions. Court was in favour of a broader view of the State's liability for
tortious act of its servants but did not specifically overrule the test of sovereignty as given in case of P and 0
Steam Navigation Co.
36
Later on, in case of Kastuti Lal Ralia Ram Jain Vs State of U.P' the court went back to the P and 0 steam
Navigation case and held that State government was not liable as the activity of police officer (to seize gold
negligently) was a sovereign activity. The court made a distinction between 'sovereign' and non-sovereign'
function and maintained that such distinction had been uniformly followed in India by judicial decision.
Present Situation: Now judiciary opts a new and restrictive view regarding so called 'sovereign' functions.
Thus, while the basis of the law still remains traditional, the law developed in a new dynamic shape which is
in tune with the contemporary social needs. Now only the distinction between 'sovereign' and 'non-
sovereign' function is not a considerable factor in order to decide the extent of liability and damages. In
several cases the State has been held liable to pay compensation for the torts committed by military
vehicles engaged in doing various odd jobs.
37
In case of Satyawati Vs Union of India it was held by the court that the work of transportation could have
been done by a private person and so it was not a sovereign function even though a military truck was
involved. Therefore the State was held liable to pay compensation.
38
In case of Rudual Sah Vs State of Bihar Supreme Court laid down an important principle of compensation
against government for the wrong committed by its officials.
In another landmark judgment, the Supreme Court in Chairman Railway Board Vs Chand rima Das39 held
that when a woman, even though a foreign national, is gang raped by railway employees in Railways Yatri
Niwas, the Union of India which runs the Railways as commercial activities, would be vicariously liable to
pay compensation to victim of the rape.
53
In the other words, it can be concluded that the State will become liable for the tortious acts committed by its
officials irrespective of the fact of 'sovereign' and non-sovereign functions during the course of
employment.
Meaning of Ombudsman: 'Ombudsman" means a delegated person, agent, officer or commissioner of

parliament.
According to Garner; "Ombudsman" means an officer of parliament, having as his primary function, the
duty of acting as an officer or agent of parliament, for the purpose of safeguarding citizens against misuse of
administrative power by the executive.
OMBUDSMAN
Meaning of Ombudsman : 'Ombudsman” means a delegated person, agent, officer or commissioner or

parliament.
According to Garner; “Ombudsman” means an officer of parliament, having as his primary function the duty
of acting as an officer or agent of parliament, for the purpose of safeguarding citizens against misuse of
administrative power by the executive.
Importance of Ombudsman: Ombudsman 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.
Ombudsman inquires and investigates all complaints, made by citizens against the above of discretionary
power, maladministration. He is empowered to grant relief to the aggrieved person. He can act even
suomoto. His powers are not limited like the power of civil courts.
Historical Growth and Development: The ombudsman institution originated in Sweden in 1809 and
thereafter it has been accepted in other countries including Finland, Denmark, Newzealand, England
(Parliamentary Commissioner) and India (Lokpal and Lokayukta).
In New Zealand: The concept was introduced in New Zealand in the year of 1962 by passing Parliamentary
Commissioner (ombudsman) Act 1962. This Act was replaced by Act 1975. This act provided for one or
more ombudsmen.
The ombudsman holds office for a term of 5 years and can be re-appointed. He can be appointed by
Governor General on the recommendation of house representatives and can be removed by the Governor
General upon an address of house representatives on the grounds of disability, bankruptcy, neglecting duty
or misconduct.
In England: The ombudsman is officially known as the 8arliamentary commissioner in England. It is

created by parliamentary commissioner Act 1967. He is appointed by crown and holds office till the age of
65 years. He had an independent status and been given statutory powers. His function is to report his
findings to the parliament and it is left to the parliament to decide what action should be taken on his report.
In Australia: Since Australia is a federation, there is a two tier ombudsman system. As regards the
54
commonwealth ombudsman system, it was established by the ombudsman Act 1976.
In India: In India the creation of the institution of Lokpal is similar to that of ombudsman. In 1964 the
Santhanam committee on prevention of corruption, in 1966, the Administrative Reforms Commission
headed by Murarji Desai recomendeded the institution of the Lokpal. The Lokpal proposal was introduced
in 1968, 1971, 1977 without Lok Sabha getting around to approving the Bill. In 1985 the Lokpal Bill was
introduced but it was lapsed again because it was not sufficient to incorporate all the required offices. The
Govt. of India was of the view that the Prevention of Corruption Act 1988, contained adequate provisions to
deal with cases involving corruption of all public servants. In 1989, the v. P. Singh Govt. also introduced a
Lokpal Bill bringing for the very first time the Prime Minister within the domain of Lokpal. In 1996. again the
Bill was introduced. At the time of dissolution of 12th Lok Sabha on 26th April 1999, the Bill was under
consideration of Department related to Parliamentary Standing Committee.
Once again in 2003, the Lokpal Bil was introduced. This Bill was introduced in Lok Sabha for nine times.
The Bill is likely to ensure transparency in the government system. The proposed Bill provides for the
establishment of the institution of Lokpal to enquire into allegations of corruption against public
functionaries including the Prime Minister. Recent discussion on Lokpal Bill was held in parliament in 2006
but the bill had not been passed yet.
Powers and Duties of Ombudsman: The ombudsman inquires and investigates into complaints made by
citizens against abuse of discretionary power, maladministration and takes appropriate actions. He had
access to departmental files. The powers of ombudsman are not limited. The complaint is not required to
lead any evidence before the ombudsman to prove the truth. It is the function of the ombudsman to satisfy
himself whether or not the complaint was justified. He can act suomoto. He can grant relief to the aggrieved
person as unlike the power of a civil court.
Status of Ombudsman: He is a judge or 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 the party politics. He makes a report to parliament and sets out reactions of citizens against the
administration. He also makes his recommendation to eliminate the cause of complaints. Those reports are
published in the national newspapers and very wide publicity is given to those reports.
In short "He is the "watchdog" or "public safety valve” against maladministration and the protector of
littlemen."
Defects -
1) It is argued that this institution may prove successful in those countries which have a small population,
not in the countries having large population as the number of complaints may be too large for a single
man to dispose of.
2) According to Mukherjee J. in India this institution is not suitable. 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
redressal of their grievances. Since, the present judicial system is not sufficient to deal with all cases of
injustice, an institute like ombudsman may help in doing full and complete justice to aggrieved person. But
ombudsman is not a panacea for all the evils of bureaucracy.
55
Important Questions
Q.1. What do you understand by the institution of ombudsman? Is it desirable and will it be effective in
India?
Q.2. Write an essay on Public Interest litigation specifically mentioning its importance in a country like
India.
Q.3. Define 'Lokayukt'. Who has the authority to appoint 'Lokayukt'? What are the functions of a
Lokayukt after being appointed?
Q.4. Define injunction. How many kinds of injunctions are there?
Q.5. Discuss anyone of the following:
1) Methods of judicial control over administrative actions.

2) Grievance redressal forums against administrative faults.
Q.6. That is the object of Central Vigilance Commission?
Q.7. "The test of sovereign and non-sovereign immunity has disappeared in the modern age". Comment
with special reference to position in India with the help of decided cases.
Q.8. Discuss and illustrate the method of judicial review as an instrument of controlling administrative
actions. Are there any other judicial methods which can achieve the same purpose?
Q.9. Discuss Jurisdiction of High Court under Article 226 and SC under Article 32.
Q.10. Discuss briefly the importance of Art. 32 of the Constitution.
Q.11. Define the writ of certiorari. Can this writ be issued in a case of t,he Natural Justice being violated by
some legal authority?
Q.12. Discuss a case briefly coming in the category of public interest litigation.
Q.13. Write a short note on writs.
Q.14. Against whom a writ of prohibition can be issued?
Q.15. State as to which of the following pairs is correctly matched:
i. Writ of 'Habeas Corpus' is issued to the state only.

ii. 'Writ of Mandamus' is issued to the public servant.
iii. 'Writ of Quo-warranto is issued to the subo~dinate courts.
Q.16. 'PIL' is a tool in the hands of judiciary to facilitate the protection of the rights of an individual person.
Discuss.
56
Q.17. Lokpal, Lokayuktas and Parliamentary Committees are some of the Grievance redressal forums to
proceed against administrative faults. Discuss the power and procedure of those forums.
Q.18. Public interest litigation is a recently evolved device of controlling administrative faults. Discuss.
Q.19. Discuss briefly the different methods of judicial control of administrative action with special
reference to judicial review suit for injunction, suit for declaration and suit for damages.
Q.20. Discuss briefly the writ jurisdiction of the High Courts in India under Article 226 of the Constitution.
57
UNIT - V
PUBLIC CORPORATION AND PUBLIC UNDERTAKING
LEGAL LIABILITY
The old concept of police state has now been converted into the concept of 'welfare state'. Today the role of
state is not confined to its traditional limits. Now it seeks to ensure social security and social welfare for the
common mass. With a view to achieving the object of socialist, democratic republic, constitutional
protection is afforded against state monopoly and necessary provisions are incorporated in the constitution
itself by laying down the directive principles of state policy. And once the govt. entered the field of trade and
commerce, it became increasingly evident that the governmental machinery hitherto employed merely for
the maintenance of law and order was wholly inadequate and unsuitable for business exigencies, which
remained a flexible approach. It was, therefore, felt necessary to involve a device which combined the
advantages of flexibility with public accountability. It was in response to this need that the institution of
public corporation grew.
'Public corporation' is not defined as such in any statute or by any court. It has no regular form and no
specialized function.
In Dhanoa v. Municipal Corporation Delhi1 a corporation is defined thus:
"A corporation is an artificial being created by law having legal entity entirely separate and distinct from the
individuals who compose it with the capacity of continuous existence and succession notwithstanding
changes in its membership. In addition, it has the capacity as such legal entity of taking, holding and
conveying property, entering into contracts, suing and being sued, and exercising such other powers and
privileges as may be conferred on it by the law of its creation just as a natural person may".
Classification: A logical classification of a public corporations is not possible, and neither parliament nor
the courts have made any serious attempt in that direction.
In India, public corporation may be classified into following groups-
1) Commercial Corporations: Such corporations include all corporations like Air India International,
Indian Air Lines, the L.I.C., Govt. Companies, Hindustan Antibiotic etc.
2) Regulatory Corporations/Financial Corporations: It include a corporation which regulates a particular

task, e.g., Reserve Bank of India (constituted under the Reserve Bank of India Act, 1934) regulate the
issue of Bank notes and maintenance of the reserves in order to secure monetary stability in India.
3) Commodity Corporations : These corporations are related to the control of productions and
distribution of essential commodities, e.g., the Oil and Natural Gas Commission.
4) Development Corporations: The corporations are basically related to the development in any field in
the nation, e.g., Damodar Valley Corporation.
5) Social Services Corporations: These corporations provide social services, for instance, Employees
State Insurance Corporations etc., provide certain benefits for the employees in case of sickness,
maternity, employment injury etc.
58
Legal liability of Corporation in India: In India, co-operations are established by the authority of the
statutes. It is a body corporate with common seal. It has a legal personality, recognised by the statute. It
does not have the privileges and immunities like a Govt. department. The corporations are not deemed to
be Govt. bodies and, therefore, their tortious and contractual liabilities are not dissimilar to those of an
ordinary person.
CHARACTERISTICS
1) A corporation is established by or under a statute. It possess an independent corporation
personality and it is an entity different from the union or of the State Government. It has a common
seal. It can sue and be sued in its own name.
2) There may be several members or shareholders of a corporation. The law, however, knows only
one body corporate. Juristic personality of corporation is distinct from its individual members.
3) A corporation having neither soul nor body, it acts through natural persons.
4) A corporation exercises its rights, performs its functions and discharges its duties and obligations
entrusted to it by its constituent statute or charter by which it is created. Its power does not extend
beyond what the statute provides expressly or by necessary implication.
5) Every action of corporation not expressly or impliedly authorised by the statute or charter is ultra
vires and having no legal effect whatsoever.
6) The doctrine of ultra vires, however must be interpreted and applied reasonably. All incidental and
consequential actions should be held legal and lawful.
7) A corporation can possess, hold and dispose of property.
8) Subject to the provision of the State by or under which a corporation is created, such corporation is
by and large an autonomous body. Even though the ownership, control and management of a
corporation might be vested in the Union or the State, in the eye of law, the corporation is its own
master in day to day management and administration.
9) An appropriate Govt. may issue directives relating to policy matters. The corporations are bound by
them and have to act in accordance with· such directions.
10) The constituent statute or charter may delegate the rule making power to a corporation. Such rules,
regulations and bye-laws are enforceable and binding unless they are ultra vires the parent Act,
constitution of India or are otherwise bad in law.
11) A corporation created by or under a statute can be said to be an agency or instrumentality of the
Government and 'State' within the meaning of Article 12 of the constitution and, therefore, is subject
to the jurisdiction of the Supreme Court under Article 32 and of the High Courts unde1 Article 226 of
the constitution.
12) Employees of a corporation do not hold 'civil post' under the union or the State within the meaning of
part XIV of the constitution of India.
59
13) A corporation cannot be said .to be a 'citizen' within the meaning of part II of the constitution and
therefore, it cannot claim benefits of those fundamental rights which have been conferred only on
the citizens.
14) A corporation is liable for breach of contract and also in tort.
15) Since a corporation is neither a department nor an organ of the Government, the doctrine of 'crow
privilege' cannot be claimed by it.
Rights and Duties of Public Corporations
Status: A public corporation possesses a separate and distinct corporate personality. It is a body corporate
with perpetual succession and a common seal. It can sue or be sued in its own name. Public corporations
have been recognised in the constitution. It expressly provides that the State may carry on any trade,
industry, business or service either itself qr through a corporation owned or controlled by it to the exclusion
of citizens. The laws providing for State monopolies are also saved by the constitution by way of Article
1996) (ii) and Article 305 of the constitution of India.
Rights: Like any other legal person, a public corporation can sue for the enforcement of its legal rights. It is
not a citizen but merely a legal entity and, therefore, it cannot claim any fundamental right conferred by the
constitution only on the citizens. Fundamental rights can be enforced against such public corporations.
Powers: There is no doubt that a statutory corporation can do only those acts as are authorised by the
statute creating it and that powers of such corporation do not extend beyond it. A statutory corporation must
act within the framework of its constitution. Its express provisions and necessary implications must at all
events be observed scrupulously. If it fails to act in conformity with law, the action is ultra vires and invalid.
Duties: A statutory corporation being an instrumentality of the State must exercise its powers in just, fair
and reasonable manner. Its approach must be beneficial to general public. It must act bonafide. Wide
powers conferred on corporations are subject to inherent limitations that they should be exercised honestly
and in good faith.
Lifting of Veil: In the expanding horizon of modern jurisprudence, lifting of corporate veil is permissible.
The court can look behind the veil to see the real face of the corporation.
CONTROLS OVER PUBLIC CORPORATIONS
The main purpose of establishing public corporation is to promote economic activity through autonomous
bodies. In fact, these corporations have been granted very wide powers and there is no interference by any
authority in exercise of these powers by the corporations. Yet, it is necessary that same control over these
'corporations should be there so that the powers conferred on such corporations may not be J Cirbitrarily
exercised or abused.
1) Judicial Control
Traditional View : According to the traditional theory, since a public corporation is created by a statute, it
is required to exercise its powers within the four corners of the constituent statute. Therefore, if a
60
corporation exceeds its authority, the action may be declared ultra vires.
Modern View: Modern State is not merely a 'Police State' performing law and order functions, but has
become a welfare state, which acts through statutory corporations and companies. Thus, corporations
have become 'a third arm' of the Government. Being a creation of the State, a public corporation must
be subject to the same constitutional limitations as the State itself. Again, statutory corporations as well
as government companies are held to be 'other authorities' and therefore, 'State' within the meaning of
Article 12 of the constitution. In these circumstances, there is no reason why these corporations should
not be subject to the same judicial control as the Government itself.
2) Governmental Control: Government also exercises some control and supervision over public
corporations as the custodian of public interest in different ways.
Appointment and Removal of Members
Chairman and members of a public corporation are to be appointed by the Government generally. The
term of the office of a member is also left to be determined by the Government. In some statutes, a
provision is made for removal of a member on the ground that the member is absent from meetings for a
specified period he is adjudged a bankrupt or is otherwise unsuitable to continue as a member.
The Government exercises effective control over a public corporation when such corporation is
dependent on the Government for finance. A statute. may require previous approval of the Government
for undertaking any capital expenditure exceeding a particular amount. It may also provide to submit to
the Government its programme and budget for the next year and to submit the same in advance.
Directives: A statute may empower the Government to issue such directives as it may think necessary
on question of policy affecting the manner in which a corporation may perform its functions. The
corporation will give effect to such directives issued by the Government.
Rules and Regulations: Usually a Statute creating a public corporation contains provisions to make
rules and regulations. The provisions empower the Central Government to make rules to give effect to
the provisions of the Act.
ADMINISTRATIVE TRIBUNALS
Nothing is more remarkable in our present social and administrative arrangements than the proliferation of
tribunals of many different kinds. There is scarcely a new statute of social or economic complexion which
does not add to the number.
- Sir G.K Allen
There are a large number of laws which charge the executive with adjudicatory functions and the authorities
so charged are, in the strict sense, administrative tribunals. Administrative Tribunals are agencies created
by specific enactments to adjudicate upon controversies that may arise in the course of the implementation
of the substantive provisions of the relative enactments. Unlike that of a country, the jurisdiction of
administrative tribunal is not general but specific. –
- T G.A Ramanujacharia
61
The traditional theory of 'laissez faire' has been given up and the old 'police state' has now become a
'welfare state' and because of this radical change in the philosophy as to the role to be played by the state,
its functions have increased. Today it exercises not only sovereign functions but as a progressive
democratic state. The controversies and issues arising are not purely legal issues rather they are socio-
economic problems and ordinary courts cannot take care of such problems expediously and effectively.
Administrative tribunals are, therefore, established to decide various quasi-judicial issues in place of
ordinary court of law.
Definition: Administrative Tribunals may be defined as administrative bodies setup solely to discharge
quasi-judicial functions. In certain circumstances, justice lies not in disposal of the case in accordance with
the law but in fair disposition.
2
In Durga Shankar Mehta vs. RaghuraJ Singh the Supreme Court defined 'tribunal' in the following words:
"The expression 'Tribunal' as used in Article 136 does not mean the same thing as 'Court' but includes,
within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with
judicial as distinguished from administrative or executive functions.
Constitutional Recognition
Article 323-A and 323-B have been inserted by the parliament by 42nd amendment in the constitution of
India. These articles have been authorised to constitute administrative tribunals for settlement of disputes
and adjudications of matters specified therein.
Characteristics of Administrative Tribunals

i. Administrative Tribunals are established b y the Executive under the provision of statute.
ii. Although they are required to act judicially, they perform quasi-judicial functions.
iii. Tribunals are independent and impartial and work without the influence of Govt.
iv. They have the powers of civil courts in certain matters and their proceeding are considered to the
judicial proceedings.
v. Tribunals are required to follow the principles of natural justice in deciding the cases.
vi. Tribunals are not bound to follow the technical rules of the procedure and evidence prescribed by
the Civil Procedure Code and Evidence Act. But they adopt the procedure which may be prescribed
in the Statute, or may be prescribed by the rules made under the Statute or may be adopted by the
tribunal itself.
vii. Tribunals are not courts in the proper sense of term. Distinction between Administrative Tribunal
and Courts
Distinction between Administrative Tribunal and Courts
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. On the other hand, an administrative tribunal is
an agency created by a statute and invested as the judicial power.
62
2) Ordinary civil courts have jurisdiction to try all suits of a civil nature, excepting those whose cognizance
is either expressly or impliedly barred. Tribunals have power to try cases in special matters statutorily
conferred.
3) The mere lack of general jurisdiction to try all cases of a civil nature does not necessarily lead to an
inference that the forum is tribunal and not a court. A court can also be constituted with limited
jurisdiction.
4) Judges of ordinary courts are independent of the executive in respect of their tenure.
PROTECTION OF CIVIL SERVANTS UNDER CONSTITUTION OF INDIA

1) Services under the Union and the State Article-308 to 323
2) Doctrine of Pleasure (Article 310)
Service-308: In an efficient machinery system, civil services are playing an important rule. A country can
not progress without efficient civil services. So it is essential to protect the public services as far as possible
from political or personal influence.
Recruitment and regulation of conditions of services Article 309: Article 309 empowered Parliament
and State legislature to regulate the recruitment and conditions of civil services.
Under Article 309 the President and the Governor may make rules for the regulation of recruitment and
conditions of the civil services.
The opening words of Article 309 "Subject to he provisions of this constitution" make it clear that the
conditions of services whether laid down by constitution or prescribed by rules must conform to the
mandatory provisions of the constitution as laid down for e.g. in Article 310, 311 and 320.
Although the words "Conditions of Services" in Article 309 will include tenure, no rule made under this
article can trespass on rights guaranteed by Art-311.
3
In Moti Ram Vs N.E. Frontier Rly : The court held Rules 148(3) and 149(3) of the Railway code (Providing
for termination of services of permanent employee by giving them notice for a period mentioned in that rule)
invalid for being violation of Article 311.
Doctrine of Pleasure
Tenure of office of persons serving the Union and the State Art-310 : In England the normal rule is that
a civil servant of the crown holds his office during the pleasure of crown. The service of that person can be
terminated at any time by the crown without assigning any reason. Crown is not bound by any contract. If
the other word, if a civil servant is dismissed from their services, he can not claim arrears of salary or
damages for premature termination of his service.
The doctrine of pleasure is based on the Public Policy. The doctrine has been introduced in Article 310(1). It
expressly provides that all the members of the defence services or the civil services of Union or all India
services hold office during the pleasure of the President. Similarly members of state services hold their
offices during the pleasure of Governor of the State. But the rule of English common law was not adopted
63
fully in Article 310.
4
State of Bihar Vs Abdul Majid : A civil servant in India can always sue for arrears of salary.
The rule is qualified by the opening words· of Article 310 "except or expressly provided by the constitution",
Thus Article 310 itself places restrictions and limitations on the exercise of the pleasure and is further limited
by Article 311 (2).
Restriction of Doctrine of Pleasure
1) The pleasure of the President or Governor must be exercised in accordance with the procedural
safeguards provided by Article 311.
2) The tenure of the Supreme Court Judges (Art 124). High Court Judge (Art 218), Auditor-General of
India (Art 148(2)), The Chief Election Commissioner (Art 324), and the Chairman and members of
the Public-Service Commission (Art 317) are not dependent on the pleasure of the President or the
Governor.
3) The doctrine of pleasure is subject to the Fundamental Rights (Union of India Vs PD. More 1962)
Constitutional Safeguards to Civil Servants - Article 311: Provides the following two safeguards to civil
servants against any arbitrary dismissal from their posts :
1) No person holding a civil post under the Union and the States shall be dismissed or removed by authority
subordinate to that by which he was appointed (Art 311 (1).
2) No person shall be "dismissed", 'removed' or 'reduced' in rank except after an inquiry in which he has
been informed of the charges against him and given a reasonable opportunity of being heard in respect
of those charges.
1. No Removal by Subordinate Authority - Art-311(1) says that a civil servant cannot be dismissed or
removed by any authority subordinate to the authority by which he was appointed.
However Article 311 (1) cannot be read as implying that the removal must be by the authority who made
the appointment or by his direct superior. It is enough that the removing authority is of the same or co-
ordinate rank as the appointing authority.
5
In Mahesh Vs State of U.P. - The person appointed by the Divisional Personnel Officer, EIR, was
dismissed by the Superintendent Power, E.I.R. The court held the removal valid as both the officers
were of the same rank.
2. Reasonable opportunity to defend - Art- 311(2) the other safeguard which the Constitution affords to
a civil servant is that he shall not be dismissed or removed or reduced in rank except after an inquiry in
which he has been informed of the charges against him and given a reasonable opportunity of being
heard in respect of those charges.
Originally, this opportunity to defend was given to a civil servant at two stages
64
1) At the Enquiry Stage: This is in accordance with the rule of natural justice that no man should be
condemned without hearing.
2) At the Punishment Stage: When after the inquiry the charges have been proved any of three
punishments - dismissal, removal or reduction of rank was given. But the 42nd amendment Article
1976 of the constitution has abolished the right of the Govt. Servant to make representation at the
punishment stage.
6
In Khem Chand Vs Union of India Supreme Court held that reasonable opportunity under Art-311
includes-
1) An opportunity todeny the servant his guilt and establish his innocence which can only be done if he
is told what the charges against him are and the allegation on which the charges are based.
2) An opportunity to defend himself by cross-examining the witness produced against him and by
examining himself or any other supporting witness of his defence.
3) An opportunity to make his representation as to why the proposed punishment should not be
inflicted or imposed on him.
A new dimension of the Principle of Natural Justice has been added in Union of India Vs Mohd. Ramzan
7
Khan - In that case the court has drawn a distinction between the disciplinary inquiry conducted by
disciplinary authority and by an inquiry office.
Termination of Services when amount to Punishment: The protection of Art-311 is availaple only when
the 'dismissal', 'removal' or reduction in rank is by way of punishment.
8
In Purshoottam Lal Dhingra Vs U.O.l. Supreme Court has laid down two tests to determine whether the
termination is by way of punishment-
3. Whether the servant had a right to hold the post or the rank.
4. Whether the servant has been visited with evil consequences.
If a government servant had a right to hold the post or rank under the any contract from or -under any
rule, governing the service, then the termination of his service or reduction in rank amount to a
punishment and he will be entitled to the protection of Art-311.
In the above case the appellant was appointed to officiate on a higher post. After 2 years, the rank of
appellant was reduced on the grounds, reversion would not stand in the way of his promotion if in the
future his work and conduct justified.
The SC held that the appellant has no right to post as he was merely officiating in the post and the
implied term of such appointment was terminable at any time on reasonable notice by the Government.
The appellant was not reduced in rank by way of punishment so he can not claim the protection' of
Article 311 (2).
Reduction ,of Rank: According to Article 311 (3) Reduction of Rank means reduction from a higher to
lower rank or post.
65
9
In State of Punjab Vs Kishan Das : Respondent was a police constable in Punjab Police. In 1960 the
charge of arrogance and indiscipline was served on him. A departmental inquiry was held under the
Punjab Police rule. The charges have been proved and an order was issued forfeiting his entire service.
This meant bringing down his salary to rupees 45 pm., which was the starting point salary for a
constable. Supreme Court held that the order did not amount to the reduction of rank.
10
In State of Mysore Vs M.K. Godgoli : The Supreme Court held that the reversion in this case had not
amounted to reduction in rank by way of punishment and hence Article - 311 (2) was not attached.
Suspension is not Punishment: The suspension of a government servant from service is neither
dismissal or removal nor reduction in rank. Therefore, if a government servant is suspended he can not
claim the constitutional guarantee of reasonable opportunity (Sukh Bansh Singh Vs State of Punjab 1962)
and where the termination is due to the abolition of the post held by government-servant for bona fide
reasons Article 311 (2) need not be complied with the termination of services of the government servant.
The abolition of post does not involve 'punishment' at all and therefore the protection of Article 311(2) is not
available.
Compulsory Retirement is Simply not Punishment: A permanent retirement of a government servant in

'Public Interest' does not caste a stigma on him and no element of punishment is involved in it and hence the
protection of Article 311 (2) will not be available.
In an Important Judgement (Hindustan Times 18th March 2002): Sounding a warning to :

Dead wood" in government employment, The Supreme Court has held that the government has the
absolute right to compulsorily retire an employee if his conduct becomes untenable to public interest or
obstructs the efficiency of Public Service.
11
In Shyam Lal Vs State of U.P. : The question involved whether compulsory retirement amounted to
removal, dismissal within the meaning of Article 311 of Constitution. Supreme Court held that a compulsory
retirement does not amount to dismissal or removal. Therefore, it does not attract the provisions of Article
311 (2). The compulsory retirement under service rule is not violative of Article 311 (2) if it is exercised
bonafide and in the public interest.
12
In K. Nagaraj Vs State of A.P. : In this case, The Supreme Court held that the reduction of age of
retirement from 65 to 58 under the A. P. Public Employment (Regulation of Conditions of service)
ordinance, 1983 was not violation of Article 14 or 16. The retirement in accordance with a law or rules
regulating his conditions of services does not amount to his removal from service.
13
In a Significant Judgement - Baikunth Nath Vs Chief Medical Officer : The Supreme Court has held that the
government can compulsorily retire its employees without assigning any reason or following the principles
of natural justice.
Art 311 Applies to Both Temporary and Permanent Servants: The constitutional guarantee of
reasonable opportunity is available to both permanent and temporary servants.
14
In Parshootam Lal Dhingra Vs Union of India Supreme Court has held that Article 310 in terms, makes
no distinction between permanent and temporary servants or between persons holding temporary or
66
permanent posts in the matter of tenure being dependent upon the pleasure of the President or the
Governor, so does Article 311, make no distinction between the two classes, both are in its protection and
the decisions holding the contrary view cannot be supported as correct.
In which cases opportunity must be given: If the 2 conditions are satisfied –
1) The employee is a number of a civil service of the Union or an all-India service or a civil service of
State or holder a civil post under the Union or the State.
2) Such employee is sought to be dismissed, removed or reduced in rank.
Exceptions of Article 311(2) - The protection of Article 311(2) for giving 'reasonable opportunity' is
not available in the following circumstances
1) Where a person is dismissed, or reduced is rank on the ground of misconduct which has led to
conviction or criminal charges.
2) Where it is impracticable to give the civil servant an opportunity to defending but the authority taking
action against him shall record the reasons for such action.
3) Where in the interest of the security of State, it is not expedient to give such an opportunity to civil
servant (Art 311, Proviso).
Is Protection of Article 311 available to Members of Defence Forces
Protection under Article 311 is available for those who hold the 'civil posts' under the Union or the State.
These safeguards are not available to defence forces or even to a civilian employee in defence service like
military engineer etc. The protection of Article 311 is not available to military personnel who are governed by
Army Act.
The term 'civil post' is not defined in the constitution but having regard of Article 310, 311 it appears to have
been used in centre-distinction to defence post.
The term civil post means an appointment or employment on the civil side of the administration.
Are the Protections available to Employees of Co-operation or University: No. It was held in Sukhdev
15
Singh Vs Bhagwat Ram - that the employees of statutory corporation or government companies
registered under the companies Act the protection of Article 311.
67
IMPORTANT QUESTIONS
Q.1. Define and distinguish between a public corporation and public undertaking. What are the various
ways of exercising control over public corporations to stop them from abusing the power granted to
them? Discuss.
Q.2. What in your view are the causes for the failure of certain public sector undertakings in India in
recent years? Whether prevarication is the cure of such undertakings and corporations? Discuss.
Q.3. Describe the structure jurisdiction and procedure of an administrative service tribunal. How is it
different from the regular courts system?
Q.4. Constitution of India has provided certain definite safeguards to public servants against their
removal or any other punishment. Discuss those provisions and illustrate with the help of leading
cases.
Q.5. The constitution (42nd amend) Act, 1976 has added a new chapter relating to administrative
tribunals in the Constitution while the Administrative Tribunals Act, 1985 has implemented such
provisions. Discuss briefly the jurisdiction and procedure before these tribunals.
Q.5. Briefly discuss the causes of the growth of 'Administrative Tribunal'.
Q.7. What is a tribunal? What is the main feature of a tribunal?
SUGGESTED READINGS
1) C.K. Allen, "Law and Orders".

2) C.K. Takwani, "Administrative Law".
3) I.P. Massey, "Administrative Law".
4) Jain and Jain, "Principles of Administrative LaW".
5) Maheshwari, "Indian Administration".
6) D.O. Basu, "Comparative Administrative Law".
7) Wade, "Administrative Law".
8) De Smith, "Judicial Review of Administrative Action".
9) J.J. Ram Upadhyay, "Administrative
68

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ADMINISTRATIVE LAW

UNIT - I ADMINISTRATIVE LAW

UNIT - II CLASSIFICATION OF ADMINISTRATIVE ACTION

UNIT -III Legislative Powers of Administration

UNIT -IV JUDICIAL CONTROL OF ADMINISTRATIVE ACTIONS

DEFINITION, NATURE AND SCOPE OF ADMINISTRATIVE LAW

GROWTH OF ADMINISTRATIVE LAW WITH SPECIAL REFERENCE TO INDIA

DOCTRINE OF SEPARATION OF POWERS

In conclusion, "Doctrine of separation of powers" in today's context of Iiberalisation privatisation and

CONCEPT OF THE RULE OF LAW

1. Law and order

4. Due process of law or fairness

In Chief Settlement Commissioner, Punjab v. Om Prakash28 the Supreme Court observed:

Q.3. Briefly explain the meaning of the "doctrine of separation of powers".

which may have originated during its growth?

Q.7. Define Administrate law. Discuss its nature and scope.

General: There must be three organs of government:

1) Rule making action or quasi-legislative action.

1) Disciplinary proceedings against students.

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

i. Issuing direction to subordinate officers not having the force of law.

RULES OF NATURAL JUSTICE

Introduction: Natural justice is an important concept in the administrative law. It is envisaged in

The concept of Natural Justice entails two principles-

Rule Against Bias

1) No one should be judge in his own cause (Lord Coke)

3) Judges, like Caesar's wife should be above suspicion (Justice Bowen)

4) Departmental Bias: Departmental bias is inherent in administrative process. If it is not checked it

Policy bias is inherent in administrative process and it cannot be eliminated. It is useless to

Audi Alterm Partem : Rule of Hearing

Reasoned Decisions or Speaking Order

Q.2. Define Administrative Actions. Distinguish between-

Q.4. Define "Audi alterm partem".

Q.6. Classification of administrative action into administrative, quasi-judicial and quasi-legislative

CONSTITUTIONALITY AND REQUIREMENT FOR VALIDITY OF DELEGATED LEGISLATION

Major Premise : Legislative power cannot be constitutionally delegated by congress.

In India: The constitutionality of delegated legislation can be seen in two perspectives:

a. Section 7 of the Delhi Laws act, 1912

2. Doctrine of separation of power is not a part of the Indian Constitution.

3. Parliament cannot abdicate or efface itself by creating a parallel legislative body.

4. Power of delegation is ancillary to the power of legislation.

Functions which can be delegated i.e. Permissible Delegation

Functions which cannot be delegated Le. Impermissible Delegation

Distinction between delegated Legislation and Conditional Legislation: In conditional legislation, it is

SUB-DELEGATION OF LEGISLATIVE POWERS

The necessity of sub-delegation is sought to be supported on the following grounds -

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

CONTROL OVER DELEGATED LEGISLATION

a. Power of judicial review should not be taken away or curtailed by rules.

b) Publication: It is a fundamental principle of law that, "Ignorance of law is no excuse" (Ignorantia

Is the Requirement of Prior Publication of Delegated Legislation Mandatory: The requirement of

According to Griffith, such consultations are of two types - .

I. Ordinary Consultation Divided : Into 2 categories –

II. Extra Ordinary Consultation: Also divided into two categories –

1) Substantive Ultra Vires

3) Where Deleted Legislation is unconstitutional: Sometimes delegated legislation is consistent with

1. Special Leave Petition - Article 136

Article 136 Special leave to appeal by the Supreme Court -

ii. Supervisory Jurisdiction of High Courts

a) Call for return for such courts,

Article 32 - Remedies for enforcement of right conferred by this part –

4) Ordinary Remedies by Way of Injunctions, Declaration-Remedies available by virtue of Article

Grounds : A writ of certiorari may be issued on the following grounds –

Conditions Necessary for the Grant of Quo Warranto-