A RULE OF LAW

MEANING: “RULE OF LAW” is one of the important and foundation

principles of Basic Constitutional Principles Rule of Law are the supreme of the
country. According to it all are equal. Dicey says:” Every man, whatever be his
rank or condition, is subject to the ordinary law of the realm and amenable to
the jurisdiction of the ordinary tribunals.”
“Augusta legibus soluta non -est.” (The wife the Emperor is not exempted
from the laws) is the famous legal maxim in England, which upholds the
prominence of Rule of Law. According to this legal maxim all are equal before
the law, irrespective of their ranks, status, money, etc.
“Quod ad jus natural attained omnes hominess equals sunt.” (All men are
equal as far as the natural law is concerned.) It is another legal maxim showing
the importance to the rule of law and equality before the law.
DEFINITON: A.V. Dicey, the English Jurisprudent, defines: “Rule of Law
means the absolute supremacy of predominance of regular law as opposed to the
influence of arbitrary power and excludes the existence of arbitrariness, or
prerogative, or even wide discretionary authority on the part of the
government.”
Dicey also says: “Englishmen are ruled by the law, and by the law alone;
a man with us may be punished for a breach of law, but can be punished for
nothing else.”
It was A.V. Dicey, the English Jurisprudent, developed the Doctrine of
Rule of Law, and brought the significance and prominence to his dictum. While
the doctrine of rule of law was developing in Britain the France developed a
separate system of, Droit Administratif.’ dicey strongly criticized the system of
Droit Administratif. He wrote a classic book in 1885 – “The Law of the
constitution”, explaining his theory of ‘Rule of Law ‘and also criticisms on
French Droit Administratif.
ANALYSIS OF DICEY’S DEFINITION AND HIS THEORY
1. ABSOLUTE SUPREMACY OF LAW: Absolute supremacy or predominance
of regular law is the first principle enunciated by Dicey. According to this
principle, King, his employees, i.e. Government and its employees are below
the law. ‘The law of the land ‘is the supreme over all. He asserted: “English
men were ruled by law and law alone.”
Wade in his ‘Administratif Law’ also supports Dicey’s views. Wade
remarks: “The rule of law requires that the Government should subject to the
law, rather than the law subject to the Government,”
2. EQUALITY BEFORE THE LAW: ‘Equality before the law is the second
principle of Dicey’s theory on rule of law. According to this principle, all men
are equal. The Secretary of State to Clerk and all other citizens are equal before
the law. No one can be degraded. No one can be upgraded. Law gives equal
justice to all. No discrimination among poor and rich, the official or private
 citizens. In France, there have been two sets of courts – (I) Civil Courts: These
Civil Courts the problems and or Courts solve the problems and matters
between the private persons and the Government or its employees. It is known
as ‘Droit Administratif.’’
In Britain, there was no such type of discrimination. Dicey hated the
system of Droit Administratif. He upheld the Britain’s administration, where
judicial review and precedents have played an important role in the
administration. In England, all persons, whether they Government officials or
private persons are treated alike, and are subjected to judicial control and
review.
3. PREDOMINANCE OF LEGAL SPIRT: The third principle is
‘predominance of legal spirit’. Dicey appreciates the Predominance of legal
spirit’ prevailing in Britain. There are two types of Constitutions in the world –
(1) Written, and (ii) unwritten. Britain has unwritten Constitution. It is
depended upon conventions, customs and judicial decisions. All of them have
legal spirit. It has been proved that the unwritten constitution of Britain is
better than written constitutions of some of the countries. It is generally,
presumed that the written constitution is the source of legal rights, liberties of
citizens. This general presumption is not true in the case of Britain.
‘Legal spirit” is the real source of law in England. This legal spirit of
Britain is seen in its customs, conventions, and judicial decisions. Dicey opines
that the individual rights and liberties are more safely protected in Britain than
in France.
4. ARBITRARY POWERS: Lord Action says: “Every power tends to corrupt
and absolute power tends to corrupt absolutely.”
Dicey says: “Wherever there is discretion, there is room for arbitrariness
and that in a republic no less than under a monarchy discretionary authority on
the part of the government must mean insecurity for legal freedom on the part
of its subjects.”
This is the view of Dicey. According to him, the rule of law does not give
scope to absolute and arbitrary powers to the executive. There could not be any
special privileges for a government official or any other person.
M.P. Jain explains: “the principle implicit in the rule of law that the
executive must act under the law, and not by its own decree or fiat, is still a
cardinal principle of the common law system. The executive as not having any
inherent powers of its own but all its power flow and emanate from the law, a
principle which plays such a vital role in all democratic countries of to –day.”
A.D.M., Jabalpur vs Shivakant Shukla (1976) 2 SCC 521) {Habeas Corpus
Case}
BRIEF FACTS: During the emergency, the petitioner was detained under
national emergency, which was declared in India in 1975. At that time, the
central government declared emergency in India under Article 352 of the
 constitution the fundamental rights can be suspended during the emergency,
including the Article 21. The petitioner challenged it contending that was
unconstitutional.
JUDGEMENT: The Supreme Court held that the parliament has power to
declare emergency and also to suspend the fundamental rights including Article
21. Therefore, their Lordships rejected the petitioner’s habeas corpus petition.
RESULT: The decision of the Supreme Court was criticized by the press and
bar. It also caused political effect. Due to the atrocities created by congress-1
during emergency, it lost it power in election Janata party came into power. As
soon as the Janata party formed government, it brought 44 th Amendment, 1978
which provided that Article 21 relating to personal liberty cannot be suspended
even during the emergency.
DROIT ADMINISTRATIF
DROIT ADMINISTRATIF: In France, the distinction between public law and
private law has been observed not only in theoretically in science of
jurisprudence, but also in practice. A separate system of tribunals for the
administration of public law has been established there ‘Droit Aministratif’ is
that part of public law, which deals with the rights and liabilities of individuals
in relation to the administration. This law is administered by special tribunals
or ‘administrative courts. Counseil d’ Etat is the highest administrative tribunal
in France.
SCOPE: There are some important characteristic features of French
Administrative law. They are
1. BODY OF SPECIAL RULES: Firstly, the relation of the Government and its
officials towards private citizens have been regulated by a ‘Body of Special
Rules’. They are quite different with the rules which govern form one citizen to
another citizen.
2. DIFFERENT COURTS: There are two different courts:
i) Ordinary Courts: The ordinary law courts administer the ordinary civil law
between private citizens. It administers purely private law.
ii) The administrative courts: These courts administer the law between
private citizens and the Government (including its officials).
3. TRIBUNAL DES CONFLICTS: ‘Tribunal des conflicts’ means ‘Court of
Conflicts’ if a conflict of jurisdiction arises between the two systems of courts,
it is settled by a special Tribunal, called as Tribunal des conflicts’ (Court of
Conflicts). This Tribunal solves such problems and conflicts between these two
sets of courts, i.e. Ordinary Courts and the Administrative Courts.
4. PROTECTION TO GOVERNMENT SERVANTS: Droit Administratif tends
to protect from the control of the ordinary civil law/courts any Government
servant, who performed his duty with good faith, even though such act of the
servant consisted guilty or illegal.
5. CONSEIL d’ ETAT: It is the highest administrative tribunal in France. It is
staffed by judges of great professional expertise, and by a network of local
tribunals of first instance.
Wade praises this tribunal. He says, “Courts of this kind, whose work is
confine administrative law, may have a clearer view of the developments
needed to keep pace with the powers of the state than have courts which are
maids of all work. Certainly, the Conseil d’ Etat has shown itself more aware of
the demands of justice in respect of financial compensation”.
HISTORY: Droit administrative is a specialized law, born in France. It is very
old. It was given nonour and put in regular practice by Napoleon in the
Eighteenth century.
OBJECT: It gives cheap, immediate and efficient remedy to the aggrieved
person.
LIVERSIDGE vs. ANDERSON (1942 AC 206)
Brief Facts: The Secretary of State had issued an order to detain Liversidge
under regulation 18-B of the defense (General) Regulations 1939. Liversidge
sued the Secretary of State for damages for wrongful imprisonment. The
Secretary argued that he had reasonable cause to believe Liversidge to be a
person of “hostile associations”. And that by reason thereof, he ordered for
detention. The high court and the court of appeal negatived liversidge’s
application. He appealed to the House of Lords.
JUDGEMENT: The House of Lords too gave judgment against liversidge, and
opined that the courts could not inquire in to whether the secretary of state had
good grounds for his decision to order the detention of liversidge. The matter
was one for the secretary of state’s executive discretion.
PRINCIPLES:
i. Viscount Maugham observed. “To my mind this is so clearly a matter for
executive discretion and nothing else that I cannot myself believe that those
responsible for the order in council could have contemplated for a moment the
possibility of the action of the secretary of state behind subject to the discussion,
criticism and control of judge in a court o law. If, then, in the present case the
second requisite, as to the grounds on which the secretary of state can make his
order for detention, is left to his sole discretion without appeal to a court, it
necessarily follows that the same is true as to all the facts which he must have
reasonable cause to believe.”
ii. “Secondly, it is admitted that the Home Secretary can act on hearsay and is
not required to obtain any legal evidence in such a case, and clearly is not
required to summon the person whom he proposes to detain and to hear his
objections to the proposed order. Since the Home Secretary is not acting
judicially in such a case, it would be strange if his decision could be questioned
in a court of law.”
(This case-law may also be cited in Topics Administrative Action, Judicial
Review.)
CRITICISM: Dicey, jurisprudent strongly criticized the system of droit
administratif. He opined that the separate hierarchy of administrative courts
established under this Droit Administratif resulted in denial of equality before
the law. The jurisprudents. Who have experienced the judicial review on
administrative discretion, could not properly analyze the French System. In
fact, the criticism was true in 18th century.
DOCTRINE OF SEPARATIN OF POWERS IN INDIA
Like American constitution, our constitution does not mention the clear
provisions of separation of powers. Yet, by the perusal of Articles and their
arrangement, on e could easily understand that the framers of our constitution
too inclined towards the doctrine of separation of powers. All the executive
powers have been vested in president. All the legislative powers have been
vested in parliament. All the judicial powers have been vested in Supreme
Court. The constitution clearly demarcates spheres mentioned, each of these
branches of the Government, viz. judiciary, executive and legislative. As basu
mentioned, each of these branches does not encroach the other branches in
essential elements, but each of the branches may encroach the other branches in
the matters of incidental elements.
The history proves that after independence, India is one of the countries
which favor doctrine of separation of powers. Raj Naraian vs. Indira Gandhi
case is the leading case and example. The Allahabad high court criticized the
then prime minister smt. Indira Gandhi for the misappropriation of her power as
prime minister, and quashed her election in Raiberelly, just like, Nixon’s case in
America, this case is also a leading case in Indian constitutional history.
Sri Subba Rao, the then chief justice of Supreme Court of India, while
disposing the case ‘Golak Nath vs. State of Punjab’ expressed: “The constitution
brings into existence different constitutional entities, namely the Union, the
states, and the union territories. It creates three major instruments of power,
namely, the legislature, the executive and the judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers
without overstepping their limits. They should function within spheres allotted
to them”.
In America, it is strictly and Rigidly Followed. Whereas in India, Its
application is Liberalized and flexible.

DISTINCTION BETWEEN ADMINISTRATIVE AND QUASI-JUDICIAL FUNCTION

ADMINISTRATIVE FUNCTION
1. Granting of mining lease is an
administrative function.
2. Admission of a student in to the
institution is an administrative
action.
3. Granting of a license to cinema
theatre is an administrative
function.
4. The decision of administrative
function may generally
positively affect upon the
person.
5. The applicant comes before
administrative officer with a
requisition to grant license. To
issue license means it depends
upon several administrative
factors. He could not grant
licenses to every person who
puts the application. This is
purely administrative action.
6. An administrative action,
ordinarily, cannot be challenged
before the court.
7. It decided the matters
subjectively.
8. An ordinary administrative
function does not require such
duty to act judicially
9. Purely administrative order
does not require to give reasons
10.Case-laws:
a) Radhe shyam vs. state of
QUASI-JUDICIAL FUNCTION
1. Cancellation, revocation,
suspension, enhancement of cess
without notice, etc., are the
quasi-judicial functions.
2. Dismissal of student from the
institution is a quasi-judicial
function.
3. Cancellation or suspension of the
license to cinema theatre is a
quasi-judicial function
4. The decision of quasi-judicial
function may adversely affect
upon the person.
5. There are no parties before
quasi-judicial authority. But
there are two conflicting factors
before him. One represents the
aggrieved/affected person and
another statute of the
government. Therefore, the
quasi-judicial officer sees that no
injustice should cause that
person.
6. A quasi-judicial decision can be
challenged before court, and can
be rectified by the writs of
certiorari, rohibition. Mandamus
and habeas corpus.
7. It decides the matters
objectively.
8. An administrative officer must
have a duty to act judicially.
Then only it becomes quasi-
judicial function and that duty
and power must be vested in
administrative officer ‘to
determine questions affecting the
rights of subjects.
9. A quasi-judicial decision should
give reasons.
10.Case-laws:
a) Ridge vs. Baldwin (1964)
 M.P(1959) b) Menaka Gandhi vs. Union of
b) A.K. Kraipak vs. Union of india(1978)
india(1970) c) ShriBhagwan vs.
c) Union of india vs. J.N.Sinha Ramchand(1965)
(1971)

RADHE SHYAM vs. STATE OF M.P.9AIR 1959 SC 107)

Brief Facts: The C.P. and Berar Municipalities Act, 1922 contained two
important provisions, selections 5-a and 57. Section 53-A empowered the
Government to supersede a municipality for a temporary period not exceeding
18 months for securing general improvements in its administration. Section 57
empowered the government to suspend a municipality for an indefinite period
for its incompetent and ultra virus Act section 57 provided that a reasonable
opportunity should be given to the municipal committee before such
suspension. Whereas section 53-a did not provide such type of protective
clause. The petitioner /municipal committee challenged the discrepancy
between these two sections.
JUDGEMENT: The Supreme Court held that section 53-A was purely
administrative action, whereas section 57 was quasi-judicial in nature.
Therefore, former section did not require reasonable opportunity. what we the
later section required reasonable opportunity under the principles of natural
justice.
UNION OF INDIA vs. J.N SINHA (AIR 1971 SC 40)

Brief Facts: The petitioner J.N. Sinha was Government servant. He was
compulsorily retired from service by giving three months notice under
fundamental Rule 56 without furnishing any reasons. The petitioner challenged
it as unconstitutional under Article 311, and against to the principles of natural
justice.
JUDGEMENT: The Supreme Court held that the petitioner was removed from
the service as per rule 56 which was a specific rule. Article 311 can be invoked
only in cases of dismissal and suspensions compulsorily retirement shall not
come under Article 311. The order of the Government was purely
administrative. It was not a quasi-judicial action. No doubt, the principles of
natural justice would be applicable to quasi –judicial and administrative actions.
Here in this case, no principles of natural justice were violated.

MENAKA GANDHI vs UNION OF INDIA (AIR 1978 SC 597)

Brief Facts: It is famous case on the topic of “Protection of life and personal
liberty” A dynamic and sensational judgment was given by the Bench of
Supreme Court consisting of 11 Judges headed by Shah Justice.
 Smt. Menaka Gandhi was the wife of late Sanjay Gandhi She was the
daughter-in-law of smt. Indira Gandhi the then Prime Minister. After the death
of Sanjay Gandhi, disputes arose between Smt. Indira Gandhi and Menaka
Gandhi. Smt. Indira Gandhi was the President of the Congress Party and also
the Prime Minister of India. Smt. Menaka Gandhi wanted to visit foreign
countries. The Central Government impounded the passport of Menaka Gandhi
under section 10(3)(C) of the passport Act, 1967, to harass her she challenged
the validity of the Central Government’s order. The Central Government
contended that they impounded the passport “in the public interest”. The
Supreme Court opined that “it is not the object of the authority making the law
impairing the right of citizen, nor the form of action taken that determines the
protection he can claim. It is the effect of the law and of the action upon the
right which attracts the jurisdiction of the court to grant relief”.
JUDGEMENT: The Supreme Court gave the judgment in favour of Smt.
Menaka Gandhi [Refer Topic freedom of speech in constitutional law Notes for
further details and discussion]
11. DISTINCTION BETWEEN JUDICIAL AND QUASI-JUDICIAL
FUNCTIONS
JUDICIAL FUNCTIONS QUASI-JUDICIAL FUNCTIONS
1. As lis inter partes (a dispute 1. A lis inter partes is not an essential
between two parties) is an essential characteristic feature of quasi-
characteristic feature and judicial judicial function
function
2. The evidence shall be taken on oath 2. The evidence Is not taken on oath
3. The rules of evidence. Civil 3. The rules of evidence. C.P.C.,
procedure code etc. are strictly Cr.P.C, etc. are not strictly followed.
followed 4. Court fee is not required to be paid
4. The court fee, as per rules, is
required to be paid 5. These doctrines are not followed
5. The doctrine of precedents, stare strictly
decisis, etc. shall strictly be
followed 6. Sometimes, it may be relaxed here.
6. No man a judge in his own case.
This maxim is strictly followed 7. It is only a trapping of a court, but
7. The court is the real forum of in reality, it is not a court.
judicial proceedings

12. DISTINCTION BETWEEN ADMINISTRATIVE AND LEGISLATIVE

FUNCTIONS
ADMINISTRATIVE FUNCTION LEGISLATIVE FUNCTION
1. The executive has only delegated 1. The Parliament has the supreme
legislative powers. legislative power.
2. The legislative power of executive is 2. The legislative power of
flexible. Parliament is rigid.
 3. It functions according to its present-
day needs.
4. The legislation made by executive
supplement the supreme legislation,
but it cannot supplant it.
5. Griffith and street propounded two
tests:
i) Institutional test;
The rest is administrative.
ii)Specific cases;
The power is given to executive
to meet the ‘specific circumstance’
and ‘specific case’ and the rule
made by such executive called
executive power.
6. If a legislation made by administrators
is against the fundamental rights and
against the principles of natural
justice. Such legislation can be
quashed by Courts by writ of
Certiorari.
7. Administrative powers can easily be
delegated and also sub-delegated.
8. Administrator has to give reasons for
their decisions to the parties
concerned, and mainly to their higher
officers.
9. All administrative actions need not be
published.
10.Generally, if an exemption or favour
is made in favour of an individual it
is administrative in nature,
11.Case-laws:
Lewisham Borough Council vs.
Roberts.
BLACKPOOL CORPORATION vs. LOCKER (1948) 1 KB349
BRIEF FACTS: There was an Act “The Defense Regulations Act, 1939’. It
was a parent Act. Sec. 51 of this parent Act delegated certain legislative powers
3. It looks to future.
4. The legislation made by
Parliament and state legislatures
always superior than the
administrative legislations
5. Griffith and street propounded
two tests:
i) Institutional test;
Whatever is enacted by
legislature is ‘legislation’.
ii) General application:
The legislature is
empowered for the purpose of
‘general application’ and such
act or rule is called legislative
rule.
6. A legislation made by the
Parliament cannot be interfered
by Courts.
7. In rarest cases only, Sub-
delegation of legislative powers
can be made by Parliament.
8. The legislation need not give
reasons However, in every Act,
the objects and reasons are
explained.
9. All legislations shall necessarily
be published.
10.Generally, if an exemption or
favour is made in favour of class
of people or entire area it is
legislative in nature.
11.Case-laws:
Blackpool Corporation vs.
Locker.
to the Minister of Health to acquire the vacant houses for accommodating the
army during Second World War. The Minister of Health sub-delegated this
power to ‘Blackpool Corporation’ through a circular. The corporation
requisitioned locker to hand over his house with furniture. Locker did not
comply. Corporation filed a suit against locker. The question of law raised by
locker was that the sub-delegation and delegation both were ultra vires, the act
of Blackpool Corporation was avoided.
JUDGEMENT: The court of Appeal held that the delegated legislation was
proper. The order of corporation was legislative in nature. Act, 1939 empowers
‘acquisition of houses only’, whereas the order of corporation was ‘to acquire
house with furniture’. Therefore, the order of corporation was ultra vires, and
was avoid.
PRINCIPLES:
(i) SCOTT LJ OBSERVED: “The delegation of powers, bath executive and
legislative, was effected by what the Minister of Health styled “circulars”. The
instruments of delegation were justly entitled to that name as they were on their
face addressed to all councils with powers of local government above the level
of parish councils…(T)he delegation of power was in reality to the corporation.
The series of delegations which finally came before the learned judge and on
appeal before us was progressive, in the sense that, as the housing need
increased, the scope was from time to time extended and more and more houses
brought within the compulsory powers.”
ii) The Ministers “circulars” were not mere executive directions but delegated
legislation with statutory force. The content of any given instrument issued by a
minister in exercise of a power of delegated legislation may include
administrative or executive instructions and directions and other matter not
legislative in character which “might equally well be expressed in a circular
letter”.
iii) Scott LJ observed: “it is a principle of our constitution that whatever laws
are passed by Parliament are binding, as the law of the land, on everybody. But
it is also a principle of our constitution that no one may be deprived of his
liberty or of his rights except in due course of law- that is, unless he has done
something which the law says specifically shall have that effect. In the absence
of a common law or a statutory authority. A cannot be deprived of rights by an
executive act a minister; and if the minister claims to have made a regulation
entitling him to interfere with A’s rights, the court will interfere to stop the
minister unless he can show by what authority, statutory or otherwise, he has
made the regulation in question. It follows, therefore, that to safeguard the
second of the two principles just mentioned the precise limits of the law-making
power, which parliament intends to confer on a minister, should always be
defined in clear language by the statute which confers it.”
DISTANCE BETWEEN LEGISLATIVE AND JUDICIAL FUNCTIONS
LEGISLATIVE FUNCTION
1. The Parliament or state legislative
assembly makes the laws.
2. Law-making is the legislative
function.
3. Laws are the result of legislative
function, and are applicable to all.
4. Legislation is a new source of law.
At the same time, if has a unique
feature, that it can abolish any law
or laws which are out-dated. This
abrogative power is most
advantageous than the other sources
of law.
5. It allows division of labour.
Therefore, it increases efficiency. It
is one of the advantages of
legislative function.
6. It only makes the law making of the
law is the only function.
7. Delegation, sub-delegation is found
only in legislative functions.
8. Anticipation is the advantage of
legislation. It foresees the
consequences of certain wrongs.
9. Legislative function is complete,
certain and systematic.
10.Legislation is made for future.
11.It creates new rights and liabilities
JUDICIAL FUNCTION
1. The Supreme Court and its
subordinate courts interpret such
laws.
2. Interpretation is the judicial
function.
3. Judgement is the result of judicial
function and is applicable only to
the parties concerned in majority
cases. The precedents may be
applied to all other people in
similar facts and laws.
4. Judicial function is also a source
of law, but comes next to the
legislation. The precedents which
are the result of judicial function
have only constitutive efficacy.
Its operation is irreversible. It
cannot go back upon its footsteps.
5. It interprets the minutest points of
man’s thoughts and applies them
into cases.
6. It interprets the laws, and
implements them. sometimes, it
also makes the laws for smooth
running of administration of
justice and implements such laws.
7. Judge-made law(precedent) is the
creation of judicial function.
8. Anticipation is quite inconsistent
with judicial function. It always
looks back, the things happened
in the past.
9. Judicial function differs from case
to case; it goes into minute things,
whereas legislative function goes
into general ways.
10.Judiciary inquires past and
present.
11.It determines the existing rights
 and liabilities is cannot create
new rights.
12.Prof. Dickinson analyses: 12.
“what distinguished legislation
from adjudication is that the former …. While adjudication operates
affects the rights of individuals in concretely upon individuals in
the abstract and must be applied in their individual capacity.
a further proceeding before the
legal position of any particular r
individual will be definitely touched
by it……

REASONS FOR GROWTH OF DELEGATED LEGISLATION

There are certain merits of delegated legislation. Since the beginning of
the twentieth century, the executive has begun to play a very important role.
The previous concept of the governing rule. ‘Police Station’ has been changed
into a new concept ‘Welfare State’ population of every country has also been
increased tremendously to four folds from 19th century to 20th century. The
imposed a work load on Parliament. Therefore, it has become very necessary to
delegate the legislative powers to subordinate authorities. There are several
merits for adopting delegation legislation. These merits and necessaries are the
reasons for the development of delegated legislation.
1. PRESSURE UPON PARLIAMENTARY TIME: The country is big. The
Parliament is busy in solving many problems of the Nation. The affairs of a
modern State are increasing day-by-day. The Parliament could not get time to
discuss in detail on all the matters. Therefore, for the better administration,
delegation of legislation has become necessary and most compulsory.
Sir cecil carr says: “Delegated legislation is a growing child called upon to
relieve the parent of the strain of overwork and capable of attending to minor
matters, while the parent manages the main business”.
2. TECHNICALITY OF SUBJECT-MATTER: Generally, all members of the
parliament are politicians speak to the truth, in India, many of them are illiterates
or below matriculates. They do not acquaint with the technical knowledge, viz.
atomic energy, rocket technology, drugs, electricity, education, etc., Such
subjects require vast knowledge, technicality and experience. Therefore, the
legislative power may be conferred on experts to deal with the technical
problems.
3. FLEXIBILITY: The legislative procedures and their amendments are very
slow and cumbersome. Some of the circumstances require very rapid decisions,
e.g. bank rate, police regulations, terrorist activities, foreign exchange, export
and import policies, share market, etc. Executive can meet such situations
effectively and expeditiously.
4. EXPERIMENT: Supreme legislation is very rigid. Delegated legislation is
flexible. Certain circumstances require first experimental legislation. Thereafter
on getting success. Such legislation may be standardized. Examples: Traffic
problem, excise matters, film industry, share market etc.
5. EMERGENCY: During the periods of emergency or war, the nation requires
immediate steps to prevent the disturbances. Therefore, under such
circumstance, the executive is empowered to meet them. It was proved in the
last two world wars in entire world.
6. SPEEDINESS: Speediness is the merit of the delegated legislation. It does not
require time, voting, lengthy procedure, etc.
These are the important reasons and merits for the growth of delegated
legislation.
KINDS OF SUBORDINATE LEGISLATION
Kinds of Subordinate Legislation: According to Salmond, there are five kinds
of Subordinate Legislation,
1. COLONIAL: Once upon a time, 3/4th of the world was under reign of British.
It was highly impossible to the British Parliament to legislate all the matters for
all the colonies. Therefore, legislative power was delegated to such colonies to
certain extent. All of such Colonial Legislation were subject to the control of
the British Parliament. It can repeat, after, or supersede any colonial
enactment. Such colonies enactments were the first species of the subordinate
legislation. Even now, there are a few colonies. Hong Kong was under the
reign of British up to June 1997. The Britain handed over Hong Kong to China
on 1-7-1997. Until that date, Hong Kong was a colony for Britishers.
2. EXECUTIVE: It is the most important subordinate legislation in the modern
countries, including India A new type of federal and democratic countries, such
as Australia, Canada, America, India, etc. are formed in the recent centuries,
having a strong centre and weak subordinate states. The centre has parliament
which is the source of supreme legislation. Remaining all legislative bodies are
inferior to the parliament. All the democratic countries acquire the
characteristic features of ‘welfare’ to people instead of ‘police’. To implement
the social and welfare programmes, to delegate the legislative powers to the
executive has become compulsory and unavoidable. It is now well popularly
known as “Delegated Legislation”.
3. JUDICIAL: Supreme Court is the highest court in the country. Similarly, High
Court is the highest court in the State, Article 145 empowers the Supreme Court
to make the rules for regulation of its own procedures and the procedures of all
courts in India. Article 145 is the delegation of rule making power from
Parliament to Supreme Court to make the appropriate rules for effective
administration of justice in India. Similarly, the High Courts are also
empowered to make the rules for the proper administration of justice in the
courts subordinate to it.
4. MUNICIPALITIES, etc.: All the municipalities, gram panchayaths, zilla
parishads, etc., are empowered to make rules, bye-laws, etc. with limited powers
for the administration of their respective jurisdiction. Each of them can impose
taxes, give the permissions, etc. All this is possible only by delegated
legislation.
5. AUTONOMIC LEGISLATION: Autonomous legislation or autonomic
legislation is the process of making law by person (and not the state) for their
own guidance within the sphere in which they have been authorized to make
such laws.
IN RE DELHI LAWS ACT, 1950 (AIR 1951 SC 332)
Brief Facts: Before Independence, there were three kinds of states in India, viz
Part-A states Part-B states, and part-c States. Central government wanted to
regularise the administration and to abolish all categories. To get it there were
several acts.
The Delhi Laws Act, 1912 was the earliest of the enactments. Which
was passed n 1912 by the Governor-General in Council. Section 7 of that Act
was a s followed. “The Provincial Govt. May be notification in the official
gazette, extend with such restrictions and modifications as it thinks fit, to the
province of Delhi or any part thereof any enactment which is in force in any
part of British India at the date of such notification.”
The Ajmer-Merwara (Extension of Laws) Act, 1947, was enacted on 31-
12-1947 by the Indian Government Sec.2 of the Act was as follows. “ The
Central government may by notification in official gazette extend to the
province of Ajmer-Merwara with such restrictions and modifications as it thinks
fit any enactment which is in force in any other province at the date such
notification.”
Part-C states (Laws) Act, 1950 has been enacted by the Indian
Parliament after the Constitution came into force. Section 2 of it was as follows
“Power to extend enactments to certain Part-C States,--- The Central
Government may, by notification, in the official gazette, extend to any Part-C
State(other than Coorg and the Andaman & Nicobar Islands) or to any part of
such State with such restrictions and modifications as it thinks fit any enactment
which is in force in a Part-A state at the date of the notifications; and provision
may be made in any enactment so extended for the repeal or amendment of any
corresponding law(other than a central Act) which is for the time being
applicable to that Part-C States.”

Questions/Issued raised:
1. Was Sec.7 the Delhi Laws Act, 1912 or any of the provisions thereof, and in
what particular or particulars or to what extent ultra vires the legislature which
passed the said Act?
 2. Was the Ajmer-Merwara (Extension of Laws) Act,1947, or any of the
provisions thereof, and in what particular or particulars or to what extent ultra
vires the legislature which passed the said Act?
3. Is Sec. 2 of the Part-C States Laws Act, 1950, or ‘any of the provisions
thereof, and in what particular or particulars or to what extent ultra vires the
Parliament?
This Act empowered the Central Government –i) to extend to a part-C
state any Act in force in apart A state, ii) to repeal any law applicable to a part-c
state. This could be done by the Central Government notification in the Official
Gazette. The President got a doubt whether such delegation was proper and
permissible. He made a reference to the Supreme Court under Article 143 for
the advisory opinion seeking its opinion on the validity of the Part-C states
(Laws) Act, 1950 and more particularly Section 2 of that Act which provided a
delegation of legislative power to the Executive.
JUDGEMENT: The Supreme Court held by majority that the provisions
contained in Qns. 1& 2 are not ultra vires the Legislature which passed the Act
containing those provisions. As regards the section mentioned in Qn 3, the first
part was held to be intra vires, but the second portion, which is in the following
terms, “Provision may be made in any enactment so extended, for the repeal or
amendment of any corresponding law (other than a Central Act) which is for the
time being applicable to the Part-C state”, is ultra vires the Indian Parliament
which passed the Act.
IN RE DELHI LAWS ACT,(AIR 191 SC 322) {GWALIOR RAYON MILLS
vs. ASST. COMMR, OF SALES TAX AIR 1974 SC 1471}
Here under some of the circumstances are explained, in which essential
legislative functions cannot be delegated.
A. RETROSPECTIVE OPERATION: The Parliament can make the laws
making them enforceable wit retrospective effect.i.e. with back date. This is the
most important legislative feature. This important legislative feature cannot be
delegated. If the parent Act permits the delegated authorities, then they can
legislate to that extent and to that permissions.
B. REMOVAL OF DIFFICULTIES: Some times, the parent Act empowers the
executive to remove modify some clauses or sections of the parent Act, for the
better application and force of it. It is called ‘Remove of Difficulty clauses’ But
under the veil of this clause, the executive should not be allowed to enact
‘Henry VIII Clauses’(refer topic no 4.E for Henry VIII clause)
C. FUTURE ACTS: To legislate future Acts is an essential feature of the
legislature. This important function cannot be delegated to the executive
D. TAXING STATUTES: Imposing of taxes on the citizens and persons is a very
important feature and function of the legislature. This important function
cannot be delegated to the subordinate authorities. However, the parent Act
may delegate the tax laws after fully enacted, and with some guidelines to
implement them with slight variations. This little relaxation viz. to example a
 particular commodity from levy of tax etc. is also upheld by the Supreme court
in its various decisions (Municipal corporation Delhi vs. Birla cotton Mills (AIR
1968 SC 1232) Corporation of Calcutta vs liberty cinema etc.
E. OFFENCES AND PENALTIES: Deciding an act as an offence and fixing its
liability imposing the penalities.etc are the essential features and functions of
the legislature. This important function cannot be delegated to the executive.
However, the parent Act may fix certain amounts as the maximum for certain
offences, and may leaves to the discretion to fix the penalty. This relaxation
may be allowed.
Example: the Electricity Act, 1910 is the parent Act. Sec 37 of hie Act
empowers the Central Government to legislate the punishments. However, it
should not exceed the maximum prescribed punishment mentioned in the parent
Act.
F. OUSTER CLAUSES: The parliament is empowered to include the ‘ouster
clauses’ in the parent Act” shall be conclusive evidence”, “shall not be called in
question in any court”, “shall not be called in question in any legal proceedings
whatsoever”, etc. are the clauses ousting the judicial review. This is the
essential feature of legislature. This essential feature cannot be delegated to the
subordinate legislative authorities (Refer Topic “finally clause)
G. MODIFICATION: ‘Modification’ means ‘a complete change of the provision
modification of the provisions of the statute is an essential legislative function.
This important function cannot be delegated to ht subordinate authorities. Even
if it is permitted, it can be done so in rarest of rare cases only.
H. EXEMPTION: Exemption of certain sections from the statute means it is a
change from the parent Act. Exemption is also an essential function of the
parliament. It cannot be delegated to the executive. However, it may be
permitted, if the parent Act permits and provides the guide line in this effect.
I. REPEAL OF LAW: Repeal of law is an essential function of the legislature. It
cannot be delegated to the executive. However, if the parent Act may authorize
the subordinate authorities to repeal certain clauses or certain provisions from
the statute with effect from certain time, or on the happening of certain event.
In fact, it becomes the conditional legislation. In such circumstances, the
executive can repeal the provisions of the statue to certain extent only.
HENRY VIII CLAUSE
MEANING: ‘Henry VIII Clause’ is a nick-name given to ‘executive autocracy’.
A statute is enacted by the Parliament, and in that statute, a clause is inserted
delegating powers to the executive to amend the statute. Such a clause is called
as ‘Henry VII Clause’. In England Henry ruled in autocratic manner. The
delegation of Parliamentary legislative powers to the executive means giving a
way to autocracy. Therefore, it is criticized with the nick-name ‘Henry VIII
Clause’.
OBJECT: Power of modification of the statute means it is an act of legislation
itself. Therefore, modification of the statute should be done by the competent
legislative bodies only. This important power should not be delegated to the
executive which may result in autocracy. Therefore, this valuable power should
be given to the executive only on exceptional cases to remove difficulties. The
delegating authorities must keep in mind two factors and these two factors must
be balanced- (i) the danger of misusing of powers by executive; and (ii) the
need and urgency for delegating the power.
JALAN TRADING COMPANY vs. MILL MAZDOOR UNION (AIR 1967
SC 497)
BRIEF FACTS: Section 37 (1) of the payment of Bonus Act1965 enacted by
the parliament empowered the central government to make provisions not
inconsistent with the purposes of the Act. Section 37(2) makes the order of the
Central Government made under sub-section (1) final. The petitioners/ mill
Mazdoor Union challenged Sec. 37 as it gave arbitrary and autocratic powers to
executive.
JUDGEMENT: The Supreme Court admitted the contention of the petitioners
and quashed Section 37 of the payment of Bonus Act1965.
CONCLUSION: The Parliament passes some Acts for implementing the new
socio-economic schemes. It does not know the real practical problems which
the executive knows. Therefore, a removal of difficulty clause equivalent to the
Henry VIII clause is incorporated in such Act. In India there are two types of
‘removal of difficulty clause’ One Is narrow one and another is broader one.
The narrow clause has to be exercised consistent with the provisions of the
parent Act. There must be a balance between the executive autocracy and
urgency to remove the difficulty. The Supreme Court suggested that such as
power should be limited in point of time, say one or two years.

WHAT IS MEANT BY CONDITIONAL LEGISLATION? WHAT

PURPOSE IT HAS SERVED? DOES IT CONTINUE TO BE OF
UTILITY?
MEANING: ’Conditional Legislation’ is also known as ‘Contingent
Legislation’. In this legislature makes the statue. It is fully qualified and
complete. But the said statute does not come into force immediately. It is kept
in abeyance. It is left to the executive to bring the statute into operation on
fulfillment of certain conditions or contingencies. Here the legislative function
is not delegated to the executive. Legislative function is performed by
legislature itself. The executive authority is given the power only to stop or to
enforce the statute which is depended upon happening of a condition. On
ripening of such condition, the executive is at liberty to bring the law into
motion or extend its periphery of time or area. In fact, it is a full and complete
legislation made by legislative body.
SCOPE: The conditional legislation was invented by Britain Parl8iament
enabling itself to rule its colonies. Three centuries ago 3/4 th of the world was
ruled by it. The British Parliament was very busy in making legislation for
Britain and its colonies. It did not know the actual physical political, social and
economic situation of those colonies. It depended upon the reports of the
Governor-Generals and other important officials of those colonies. After
making the statutes for those colonies the British Parliament used to give the
freedom to those executives to implement or to stop the statute with a condition
regarding periphery or time to be fulfilled. Such legislation was full and
complete in all respects. The Privy Council upheld his type of conditional
legislation. Later in twentieth century also this legislation has been recognized
and accepted by the democratic countries.
CLASSIFICATION: Conditional legislation classified into three categories:
i) Statute enacted by legislature, future applicability to a given area left
to the subjective satisfaction of the delegate as to the conditions
indicating the proper time for that purpose
ii) Act enforced but power to partially withdraw the same from operation
in a given area or in given cases delegated to be exercised on
subjective or objective satisfaction of the delegate as to the existence
of requisite condition precedent; and
iii) Power exercisable upon the delegate’s satisfaction on objective facts
placed by a class of persons seeking benefit of the exercise of such
power to deprive the rival class of persons of statutory benefits.
While disposing State of T.N. vs. K. Sabanarayagam (1998) 1SCC 318 the
Supreme Court observed that in cases under categories(i) and (ii) hearing the
parties is not obligator. In category (iii) cases the opportunity must be given to
the other class of persons to submit their material in rebuttal of the data
submitted by the first party.
QUEEN s. BURAH (1878) 3 A.C.889
Brief Facts: Garo Hills was an agency area and a separate area attached to
Bengal. There were separate laws for it. The British Parliament enacted an Act
by which it removed all the laws existed in it and empowered the Lt. Governor
of Bengal to extend the laws of Bengal to Garo Hills, and also authorized to do
both these acts at the date decided by him. The applicant challenged this as
illegal delegation of legislation.
JUDGEMENT: The Privy Council held that it was a conditional legislation and
valid.
PRINCIPLE: Lord Selborne observed: “it is the duty of the Court of Justice in
ascertaining whether a statute violates a written constitution or not. The only
way in which they can properly do so is by looking to the terms of the
instrument by which affirmatively the legislative powers were created and by
which negatively they are restricted. If what has been done is legislation, within
the general scope of the affirmative words which give the power and if it
violates no express condition or restriction y which that power is limited (in
which category would of course be included any Act of imperial Parliament at
variance with it), it is not for any court of Justice to inquire futher or to enlarge
constructively those conditions and restrictions.
DISTINCTION BETWEEN DELEGATED LEGISLATION AND
CONDITIONAL LEGISLATION
DELEGATED LEGISLATION CONDITIONAL LEGISLATION
1. In this, the subordinate 1. In this, the subordinate
authorities are delegated and authorities are not delegated to
empowered to ‘legislate’. legislate.
2. There is no such condition or 2. It is contingent and conditional.
contingency. It is only a time factor upon
reaching certain time or
circumstance, the readymade
Act (legislated by legislature) is
3. The subordinate authorities use put into motion or stopped.
3. The subordinate authorities
their ‘own discretion’ in making
cannot use their discretionary
the legislation.
power. It is their only duty to
apply or stop the law after fact
finding (e.g. to inquire whether
facts requiring operation of the
4. The Supreme court in Hamdard Act exist).
Dawakhana vs. Union of India 4.
(AIR 1960 SC 1686) case
pointed out the distinction
between them as follows:
“Delegated legislation involves
…. conditional legislation
delegation of rule making power
delegates power is that of
which constitutionally may be
determining when legislative
exercised by the administrative
declared rule of conduct shall
agent………
5. It is also called as Subordinate become effective.”
5. It is also called as “Contingent
Legislation
Legislation”

SUB DELEGATION vs. DELEGATUS NON POTEST DELEGARE

MEANING: Sub-delegation means transfer of legislative power from a
superior to a subordinate authority and from subordinate authority to his
subordinate authority to his subordinate authority. As a general rule such sub-
delegation is not allowed. However, under certain circumstances only
sub-delegation is allowed. The Supreme Legislature delegates legislative power
to its subordinate authorities. Again, such subordinate authorities delegate this
legislative power to their subordinate authorities. It is called “Sub-Delegation”.
This sub-delegation of delegated legislation is emanated from the legal maxim
‘Delegatus non potest delegare’ (A delegate cannot delegate). Sub-delegation
can only be authorised in exceptional cases.
EXAMPLE: Sec. 3 of the Essential Commodities Act confers power on the
Central Government Again, Sec. 5 of the said Act empowers the Central
government to delegate powers to its own officers, or to the State Governments
or their officers. The State Government may itself further sub-delegate these
powers to its officers or authorities.
PRINCIPLE: The principle of sub-delegation consists two conflicting values,
which intercircled with each other. On one hand, the emergency and necessity
allow sub-delegation of the power of delegated legislation and on the other
hand, it is emanated and controlled by the maxim ‘A delegate cannot delegate’.
Sub-delegation of a ministerial function, i.e. a function which does not require
discretion is the exception to the above legal maxim. This maxim applies apply
to judicial matters, where discretion plays an important role.
Ganapati Singhji vs. State of Ajmer (AIR 1955 Sc 188)
Brief Facts: In this case, State of Ajmer enacted a statute, according to which
the Chief Commissioner was empowered to make the rules for the maintenance
of fairs. Accordingly, the Chief Commissioner made the rules and then entrusted
all the duties to the District Magistrate, with an endorsement that he may alter if
he required. The petitioner contended that the sub-delegation of rule –making
power or alteration from the Chief Commissioner to the District Magistrate was
ultra vires, as the parent Act permitted only the Chief Commissioner.
JUDGEMENT: The Supreme Court quashed the orders of District Magistrate,
and held that the sub delegation was invalid.
Central Talkies vs. Dwaraka Prasad (air 1961 Sc 606)
Brief Facts: The Ultra Pradesh Government enacted ‘The U.P. (Temporary)
Control of Rent and Eviction Act, 1947.’ According precedent was
incorporated in a section of that Act was that the owner of a talkies should first
obtain permission from the District Magistrate authorized the Additional
District Magistrate to grant such permission. The petitioner challenged it as
‘delegatus non potest delegare’.
JUDGEMENT: The Supreme Court held it as valid, opining that the parent Act
itself permitted the sub-delegation.
BLACKPOOL CORPORATION vs. LOCKER 1948 KB
The Defense Regulations, 1939 was the parent Act. It empowered the Minister
to take possession of land and building for the defense purpose. The said Act
empowered the Minister to sub-delegate his power to acquisition. Accordingly,
the Minister sub-delegated the power of acquisition to Black pool Corporation,
which requisitioned Locker’s dwelling house with furniture. He challenged it as
ultra vires. The Court of Appeal admitted the contention of the petitioner and
aside the requisition orders of Black pool Corporation. (Refer Topic
“Classification of Administrative Actions for brief facts, judgment and
principles of this case)
Radhakishan vs. State (AIR 1952 Nag 387)
Brief Facts: The Essential Supplies (Temporary Powers) Act, 1946 was the
parent Act. Section 4 of it empowered the Central Government to sub-delegate
the powers to the Provincial Governments. With a condition that before making
any orders the Provincial Government first should get approval of the Central
Government. In this case Government passed a rule, which was challenged by
the petitioner basing on the excess of its jurisdiction.
JUDICIAL CONTROL OVER DELEGATED LEGISLATION
SCOPE: The Courts have competent authority to interpret the Statutes.
Regarding the subordinate legislation, the Courts have the right to declare that
purported exercise of delegated power is ultra vires. The courts can only control
the legislative powers of the executive after the proposals have been duly
promulgated as Acts of Parliament or subordinate legislation. They can inquire
whether any statutory procedure required for the making of subordinate
legislation has been complied with and on proof of non-compliance, can declare
such legislation invalid. In England and India, Judicial Control over delegated
legislation is very effective, efficient, impartial and welcome.
MEANING:
Ultra Vires =Beyond the power. An act in excess of the authority conferred by
law therefore becomes invalid.
All the statutory powers are government by the Doctrine of Ultra Vires.
Delegated legislation shall be held ultra vires by the Court, if such legislation
goes beyond the scope of the authority conferred by the statute and if it conflicts
with the delegating statute, or if it is against procedural aspects.
OBJECTIVE: The doctrine of ultra vires applies both to public and private
bodies. In the field of public administration, it gives protection by enabling the
Courts to put a full stop to excessive zeal on the part of executive.
KINDS OF ULTRA VIRES
There are two kinds of ultra vires for the purpose of judicial control over the
delegated legislation. They are:
i. Substantive Ultra Vires
ii. Procedural Ultra Vires.
I.SUBSTANTIVE ULTRA VIRES:
MEANING: Substantive = actual law.
Substantive ultra vires relates to matters of law and fact or to matters of
discretion. Delegated legislation will be held ultra vires by the Courts, if it goes
beyond the scope of the authority conferred by the parent Act, and if nit
conflicts with the delegating parent Act. The Courts can quash such
unauthorized delegated legislation on the ground of substantive ultra vires, and
declare such legislation is not actual (substantive) law.
 PROCEDURAL ULTRA VIRES

MEANING: While delegating its legislative powers to subordinate authorities,

the parent Act prescribes certain procedures to be followed. The subordinate
authorities have to strictly adhere to the instructions and requirements laid down
by the parent Act. If’ the subordinate violates such procedures then it becomes
‘Procedural Ultra Vires’, and will be held invalid.
Examples of Procedures to be prescribed:
a) Publication of draft rules;
b) Consultation with particular bodies or interest before making them into
force;
c) Laying on the table; etc.etc
PRINCIPLE: There are two kinds of prescriptions byu the parent Act. They
are 1) Directory provisions and 2) mandatory provisions generally non-
compliance of directory provisions does not vitiate the subordinate legislation,
but non-compliance of mandatory provisions shall invalid the subordinate
legislation.
KINDS OF PROCEDURAL ULTRA VIRES: There are two kinds of
procedural ultra vires. They are
1. Publication; and
2. Consultation
1. PUBLICATION:
OBJECT: ‘Ignorantia facti excust; (ignorance of fact may be excused but
ignorance of law shall not be excused) is famous legal maxim. Ignorance of
law is not excusable but, at the same time the law must be made to know to the
general public. Then only the maxim gets fruitful results. If the law is made
and is kept in the almirahs of bureaucrats then how the public could know.
Therefore, all laws shall be published.
Domat says:” all laws ought either to be known or at least laid open to the
knowledge of all the world in such a manner that no one may with impunity
offend against them under pretence of ignorance”.
Roscoe Pound says: “The fist knowledge that those affected have of a rule is
usually after it has gone into effect. The first opportunity they have to challenge
it is usually after it is enforced against them.”
IN ENGLAND: In England there are sufficient and adequate Acts to make
the publication compulsory such acts are (a) The Rules of Publication Act 1893
(b) The Statutory instruments Act 1946 etc.
IN AMERICA: In America also, certain Acts are enacted, viz(a) The Federal
Register Act 1935(b) The Administrative Procedure Act1946 etc.
IN INDIA: In India, there are no Acts for the publication of delegated
legislation. But from time to time courts formulated certain principals and
precedents requiring the publication as an essential requirement for subordinate
delegation. The courts also opine that the publication of rues is a part and
parcel of principles of natural justice.
State of Bombay vs. M.H. George AIR 1965:
Brief Facts: The Parliament enacted the prevention of smuggling Act.
Under the said Act the central government was empowered to issue notifications
from time to time whenever necessary. Accordingly the central government
issued a notification date 8-11-1962 prohibiting import of gold in India. The
said notification was published in official Gazette on 24-11-1962. M.H George
the delinquent was arrested at the Bombay airport on 28-11-1962 with gold. He
pleaded that the notification was not published.
JUDGEMENT: The Supreme Court held that it had been validity published.
2. CONSULTATION
MEANING: While making the law the subordinate authorities shall consult
with the persons whose interests affected by such subordinate legislation. It is
one of the measures to check and control the subordinate legislation.
OBJECT: It is a valuable safeguard against misuse of the legislative power by
the subordinate authorities. The interested persons can bring the necessary
alterations in the draft of the law.
Wade and Philips explain “One way of avoiding a clash between department
exercising legislative powers and the interest most likely to be affected is to
provide for some form of consultations”
IN AMERICA: In America the Administrative Procedure Act, 1946 makes the
necessary provisions making ‘consultation’ as a necessary requirement. It is a
mandatory provision there.
IN BRITAIN: In England there are no such enactments providing mandatory
provisions for consultation
Sir Cecil Carr says: “It is unthinkable that any important rules would be made
about solicitors is England without consulting the law society or about doctors
without consulting the British Medical Association or about local government
without consulting the country council association and the Association of
municipal corporation”.
IN INDIA: In India there are no enactments so far regarding the compulsory
consultations. However, the parent Act may provide consultation as compulsory
which making the subordinate legislation. If the parent Act makes a provision
for consultation then it should strictly be adhered.
BANWARILAL vs. STATE of Bihar (AIR 1961 SC 849)
Brief Facts: The Mines Act, 1952 was enacted by Parliament. It is the parent
Act; Section 59 of this Act provides compulsory consultation with the mining
boards by the central government before formulating rules and regulations. The
provisions of section 59 are mandatory. In this case which formulation
regulations no consultations were conducted. The petitioner challenged it.
JUDGEMENT: The Supreme Court quashed the regulations as ultra vires.
 LEGISLATIVE CONTROL OVER DELEGATED LEGISLATION
SCOPE: Legislative control over delegated legislation is exercised at two
levels:
1. Supreme Legislation: At the time of making the supreme legislation, i.e.
parent Act itself, the Parliament keeps the control of such delegated legislation.
2. Administration: At the time of exercise of delegated power by the
administration, the Parliament keeps the control over such subordinates.
In fact, both these controls are supplementary to each other. The efficient
control at the second stage depends upon the first stage. If the Supreme
Legislation gives wide discretion and chances to the delegated authorities, then
the control at second stage weakens. If the Supreme Legislation gives narrow
discretion and restricts the delegated authorities it is controlled ab initio. It
resembles principal and agent relation. The Parliament is the Principal. The
Executive is the agent. The principal can entrust a work to his agent and also
can revoke it. Similarly, the Sovereign can delegate the legislative power to its
subordinate, can modify it, can revoke it and control it.
Jain an Jain explains this: “It is the function of the legislate, but if it seeks to
give this power to the executive in some circumstances, it is not only the right
of the legislature, but also its duty, as principal, to see how its agent
(executive) carries out the agency entrusted to it. Since it is the legislature
which delegates legislative power to the administration, it is primarily for it to
supervise and control the actual exercise of this power, and ensure against the
danger of its objectionable abusive and unwarranted use by the administrative.”
VARIOUS METHODS OF PARLIAMENTARY CONTROL OVER
DELEGATED LEGLSLATION:
There are various effective methods of legislative control over delegated
legislation in almost all Common Wealth countries, including India. These can
be studied in two headings. They are:
i. Laying on the Table; and
ii. Scrutiny Committees.
1. LAYING ON THE TABLE
MEANING: ‘Laying on the Table’ means putting the subordinate legislation
before the parliament. The executive authorized to legislate by the supreme
legislative authority. The law made by the subordinate authority shall have to
submit for the verification of the Parliament. It is called ‘Laying on the Table;
OBJECTIVE: ‘Laying on the Table’ is a check on the subordinate authorities.
By it, the Sovereign could know what the subordinate authorities did, how far it
performed its duty, whether it exceeded its limits, etc., etc. If necessary, it makes
debate and voting. It also can question the subordinate authority if the defects
and excesses are found in the legislation.
KINDS OF ‘LAYING ON THE TABLE’: The Indian Law Institute reported
about the kinds of ‘Laying on the Table ‘in its book ‘Delegated Legislation’
 basing on the select Committee on Delegated Legislation. According to the
Select Committee, there are seven kinds of ‘Laying on the Table; they are.
(1) Informal Laying: It is an informal manner. The parent Act has a clause to direct
the subordinate authority to lay the law before the Parliament. As soon as it is
laid before the Table, it becomes operative. It is lad without further provision for
control. Sometimes, the law becomes operative, even before its laying on the
Table.
(2) Lying linked with postponement: The parent Act restricts the subordinate
authority and gives more control to parliament. The law prepared by the
subordinate authority first laid before the Parliament and until Parliament
confirms the legislation, the operation of the law postponed.
(3) Negative resolution procedure: The law made by subordinate authority is laid
before Parliament. As soon as it laid before the Parliament, it becomes
operative. It may cease its operation, when the Parliament disapproves and
annuls.
May the famous Jurist, in his book ‘Parliament Practice’ describe this
method of Laying as follows: “This is the most common form of Parliament
control and is suitable to be named as negative resolution procedure.”
(4) Laying in draft: In this method, first the parent Act provides clauses
empowering the subordinate authorities to make the law to submit them in draft
form before the Parliament, and such rules and law should not become into
force until a particular and fixed date announced by the Parliament. In this
procedure, some qualities of ‘conditional legislation’ are mixed. It is also one
type of ‘negative resolution procedure;
(5) Positive resolution procedure: The draft of law made by the subordinate
authority shall first be discussed, supervised and checked by the Parliament.
Then only, it is liable to become the full force of law. Therefore, this type of
laying is known as ‘Positive Resolution Procedure.’
(6) Laying with operation deferred until approval: It is also a positive resolution
procedure. In this kind, the rules are actually made. They are not draft. But they
do not come into force until approved by the Parliament. In fact, there is no
difference between 5 and 6, except very slight variation
(7) Operation of law + affirmative resolution: this type of delegated is seen in
taxation or the law in emergency. Laying of the law on Table, its immediate
Parliamentary suspension and also the operation of it come into effect
immediately.
EFFECT OF LAYING ON THE TABLE
In England, a statute by name ‘The Statutory Instruments Act, 1946’
had been enacted. Before enacting this Act, there was no appropriate law
regarding the laying on the Table. There were different decisions of Privy
Council. However, the Act of 1946 put the full – stop to the conflicting
decisions. This Act resolved that ever y delegated legislation becomes valid
only after it is laid before Parliament and approved. A joint committee has been
established under this Act.
Yardley, the Head of the Joint Committee said: “In recent years this
Committee has done more and more work, serving valuable scrutiny
committees.”
In India, the position is not yet clear. So far no Act, like “The Statutory
instruments Act, 1946(England)” has been made in India. The Supreme Court
laid down various propositions according to the circumstances.
In Jan Mohd. Vs. State of Gujarat (AIR 1966 Sc 385), the Supreme Court held
that when the parent Act permits and makes the subordinate rules as valid, then
it is not necessary to lay on the Table.
In Papaiah vs. Excise Commissioner, AIR 1975 case, the Supreme
Court upheld the rules made in parent Act, and opined that the rules would
come into force as soon as they were made, and no control of legislature would
be helpful. While disposing this case, Mathew, Justice said: “The dilution of
Parliamentary watch – dogging of delegated legislation may be deplore but, in
the compulsions and complexities of modern life, cannot be helped.”
DIRECTIONS BY THE SPEAKER< LOK SABHA: According to
Direction 103 of directions by the Speaker, Lok Sabha, the Lok Sabha
Committee on Subordinate Legislation may examine all legislative orders
framed by the executive under the Constitution or a statute whether laid on the
table of the House or not.
CONCLUSION: ‘Laying on the Table ‘has not been made compulsory and
mandatory. It depends upon each circumstance of each delegated legislation, as
there has been a heavy work load on Parliament, which could not spare the time
to study, verify, make alterations and scrutiny. Only in exceptional cases it can
be done.
SCRUTINY COMMITTEES:
MEANING:
SCRUTINY= A close investigation; a strict inquiry;
An inquiry into the validity of the statutes made by subordinate
authorities.
SCOPE: There are two Scrutiny Committees in India. They are:
1. The Lok Sabha Committee on Subordinate Legislation; and
2. The Rajya Sabha Committee on Subordinate Legislation,
OBJECTIVES: Indian Law institute’s book “Delegated Legislation in India”
explains the object of he establishment of Scrutiny Committees by the
Parliament as follows: “They (Scrutiny Committees)
APPOINTMENT OF SCRUTINY COMMITTEES:
1. The Lok Sabha Committee on Subordinate Legislation: There shall be 15
members. All of them shall be appointed by the Speaker of the Lok
Sabha. They are appointed from all the parties. Their duration is only
one year. So that all political parties represent it. The chairman of the
 committee shall be appointed from the opposition parties. The Ministers
are not eligible to become the members fo the Scrutiny Committee
unanimous decisions are generally adopted. The members are not
permitted to invoke their parties ‘policies’
2. The Rajya Sabha committee on subordinate Legislation: it also consist
15 members form all parties. The Members and the chairmen of the
Scrutiny committee are appointed by the chairman of the Rajya sabha. A
Minister can also become as a members in the scrutiny committee. The
duration of the committee is that it will continue until a new committee is
formatted by the chairman.
EFFECT OF THE SRUTINY COMMITTEES:
The working condition of the Scrutiny committees i.e. The Lok Sabha
Committee on Subordinate Legislation and The Rajya Sabha committee on
subordinate legislation is quite satisfactory, effective and efficient. They have
proved their ability in controlling the improper delegated legislation in India.
Sir Cecil Carr, in his book ‘Parliamentary control of Delegated Legislation’
remarks. “it is evidently a vigorous and independent body.”
 TABLE SHOWING CONTROLS OVER DELEGATED LEGISLATION

JUDICIAL CONTROLS LEGISLATIVE CONTROLS OTHER REMEDIES

Substantive Procedural Ultra ViresLaying on the table Scrutiny

Committees
Ultra Vires

Publication Consultation

1. Where parent Act unconstitutional; 1. Informal laying; 1. Loksabha committee on

2. Inconsistency; 2. Laying linked with postponement subordinate legislation;and
3. Where delegated legislation is unconstitutional; 3. Negative resolution procedure; 2. Rajyasabha committee on
4. Unreasonableness; 4. Laying in draft; subordinate legislation
5. Mala fides; 5. Positive resolution procedure
6. Sub-delegation vs, Delegatus non potest delegare; 6. Laying with operation deferred until approval;
7. Exclusion of judicial review 7. Operation of law + affirmative resolution
8. Retrospective effect.
 NATURAL JUSTICE
Some jurisprudents share of opinion that, there are four important principles of
natural justice:
1. Rule against bias;
2. Rule of a fair hearing;
3. Reasons should be given; and
4. A copy of a report or other similar evidence shall be made available to the
effected person.
The committee on Ministers’ Power classified the rules into three important
principles, as follows;
1. No one shall be a judge in his own cause;
2. No one shall be condemned unheard; and
3. A party is entitled to know the reasons for decisions.
Some English jurisprudents classified the principles of natural justice in two
Important categories/ Maxims. They are
1. Nemo debet esse judex in propria causa (No man shall be a judge in his
own cause) and
2. Audi alteram partem (Hear the other Side)
PECUNIARY BIAS
Nemo debet esse judex in propria sua causa’ (No man can be a judge in his own
cause) is the fundamental rule in the administration of justice, that a person cannot
be judge in a cause wherein he is interested. Any direct pecuniary interest however
small, in the subject-matter of inquiry, will disqualify the judge. It is generally
accepted that a justice, who is interested in a matter pending before the Court shall
not take any part in the proceedings, unless indeed all parties know that he is
interested and consented, either tacitly or expressly, to his presence and
interference. In such a case, it has been held that the presence of one interested
justice renders the court improperly constituted, and vitiates the proceedings. It is
immaterial that there was a majority in favour of the decision without reckoning
the vote of the interested justice.
Visakhapatnam Co-op, Motor Transport Ltd. Vs. G. Bangaruraju(AIR 193
Mad 709)
Brief Facts: The District Collector, Visakhapatnam was also the President of
Visakhapatnam Co-op. Motor Transport Ltd. He was also the Chairman of the
Regional Transport Authority. He issued motor permits to co-operative Society.
G.Bangaruraju challenged it contending that it was a clear pecuniary interest and
bias.
JUDGEMENT: The Supreme Court quashed the District collector’s permits,
opining that he had pecuniary interest in the co-operative society, he being the
president of the Society.
A.K. KRAIPAK vs. UNION OF INDIA (AIR 1970 SC 10)
Brief Facts: Selections were made by the Selection Committee for the posts in the
Indian Forest Service. A candidate of the post was also a member of the Selection
Committee. He was selected for the post. The petitioner, one of candidates
challenged the selections by a writ petition contending that the Selection
Committee acted with personal bias.
JUDGEMENT: The Supreme Court quashed the selections, opining that the
section was a clear proof of personal bias and the Selection Committee was
influenced by personal friendship of that candidate. Who happened to be a
member of the selection committee.
PRINCIPLES:
i. The Supreme Court observed: “The aim of the rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of justice. These rules can
operate only in areas not covered by any law validly made. In other words, they do
not supplant the law of the land but supplement it”.
ii. The Supreme Court opined: “Till very recently it was the opining of the courts
that unless the authority concerned was required by the law under which it
functioned to act judicially, there was no room for the application of the rules of
natural justice. The validity of that limitation is now questioned. If the purpose of
the rules of natural justice is to prevent miscarriage of justice one fails to see why
those rules should be made inapplicable to administrative enquiries”.
iii. The Supreme Court observed: “What particular rule of natural justice should
apply to a given case most depend to a great extent on the facts and circumstances
of the case, the framework of the law under which the enquiry is held and the
constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice
had been contravened, the court had to decide whether the observance of that rule
was necessary for a just decision on the facts of that case.
“MINERAL DEVELOPMENT LTD. vs. STATE OF BIHAR (AIR
1960 SC 468)
Brief Facts: The Chairman of Mineral Development Ltd. had political quarrel
with the Revenue Minister both of them were rival candidates in Assembly
Elections, from different parties. In that election period the Chairman had also
filed a criminal case against the Revenue Minister, who won M.L.A seat and later
became the Revenue Minister. Keeping in view of the previous grudges, Revenue
Minister cancelled the license of Mineral Development Ltd. for the quarrying
lease pertaining to certain lad. The chairman challenged the cancellation
contending that the Revenue Minister acted with personal hostility born in
elections.
JUDGEMENT: The Supreme Court quashed the order of Revenue Minister,
opining that Revenue Minister was influenced by personal hostility.
Maharashtra State Board of Secondary and Higher Secondary Education and
another (Appellants) vs. Paritosh Bhupesh Kurmarsheth, and other
(Respondents)
(AIR 1984 SC 143)
Brief Facts: Several thousands of students appeared for the Higher Secondary
Certificate and Secondary School Certificate public examinations conducted by the
Divisional Boards functioning under the supervision and control of the
Maharashtra state board of secondary and higher secondary education (the board).
Out of them a considerable number of disappointed candidates petitioned for
revaluation and paid prescribed fees and asked for personal inspection of papers.
The board revalued the papers but did not allow them personal inspection. They
filed writ petitions before the Maharashtra High Court contending that their papers
were not correctly invalidated, and they had right to inspect hem at the time of re-
valuation. The Board contended that as per Regulation 104(1) of the Regulations
made under the Maharashtra Secondary and Higher Secondary Education
Certificate Examination may apply to the Divisional Secretary for verification of
marks in any particular subject. The verification will be restricted to checking
whether all the answers have been examined ant that there has been no mistake in
the totaling of marks for each question in that subject and transferring marks
correctly on the first cover page of the answer book and whether the supplements
attached to the answer book mentioned by the candidate are intact. No revaluation
of the answer-book or supplements shall be done.”
“GULLAPALLI NAGESWARA RAO vs. A.P.S.R.T.C (AIR 199 SC 308)
Brief Facts: This case is the leading case showing the department bias. The
petitioner was having motor transport business. The Andhra Pradesh Government
wanted to nationalism the transport and call ed for objections through newspaper.
The petitioner field objections. The objections were received and heard by the
secretary, and later the Chief Minister nationalized the transport without
considering petitioner’s objections/ the petitioner challenged it.
JUDGEMENT: The Supreme Court held that it was a clear department (official)
bias, as the objections were heard by one authority decided by another authority
PROBLEM: A case which involved disciplinary action against a railway
employee and an inquiry was conducted by a committee come consisting of three
persons, one of whom was replaced by another during the course of hearing. The
committee submitted its report to the disciplinary authority without taking fresh
hearing after the change in the composition of the committee. Is this inquiry valid/
(Ajnl.98 B.U.)?
SOLUTION: This problem is identical with case-law Gullapalli Nageswara Rao
vs. A.P.S.R.T.C. The inquiry is not valid.
iii) PRIOR UTTERANCES AND PRE-JUDGMENT OF ISSUES: It is the
general principle that any policy first shall be decided in the Cabinet Meeting.
After it, the concerned Minister and his department implement it. Sometimes,
some Ministers with over zeal declare the policy in advance in public meetings or
press. It is criticized by press and public. Courts also discourage such type of
enthusiasm.
AUDI ALTERM PARTEM
Scope: According to English Law, there are two important principles of natural
justice. They are:
1. Nemo debet esse judex in propria sua causa. (No man shall be a judge in
his own cause.) it is also called ‘Bias or interest’
2. Audi alteram partem. (Hear the other side).
We have studied about “Nemo debet….” in previous Topic. Now we shall study
about the second legal maxim. This can be studied in two main headings: (i)
Notice; and (ii) Hearing.
MEANING:
Audi alteram partem =Hear the other side. Both the sides must be neard. No man
should be condemned unheard. No evidence should be taken at the back of the
party. The deciding authority must decide the dispute hearing the two sides with
fairness.
‘Hearing’ means ‘hearing by an impartial tribunal’. Natural justice is satisfied, if
there is a hearing by a tribunal –judicial, administrative, provided only that tribunal
is impartial and provides the person affected an ‘opportunity of being heard’.
RIDGE vs BALDWIN (1964 AC 40)
Brief Facts: Mr. Ridge was the Chief Constable of Brighton during 1957-58.
During his tenure, there were several complaints and criticisms about his
corruption. Trials we commenced against him by the local Watch Committee. He
was suspended during the trails. In the trials, no convictions were recorded against
him. Even after completion of trials, he was not reinstated into service. The watch
committee dismissed ridge from the service in March, 198 under Section 191(4) of
the Municipal Corporations Act, 1882. No specific charges were mentioned in the
dismissal order. Ridge represented the Committee by a solicitor. He was not
reinstated. He appealed to the Home Secretary, who dismissed the appeal. Finally,
Ridge appealed to the House of Lords.
Corporations Act,1882. No specific charges were mentioned in the dismissal
order. Ridge represented the Committee by a solicitor. He was not reinstated. He
appealed to the Home Secretary, who dismissed the appeal, Finally, Ridge appealed
to the House of Lords.
JUDGEMENT: The House of Lords allowed the appeal of Ridge, and opined that
the Committee should have informed him of the charges against him, and given
him a proper opportunity to be heard, which had not been done.
PRINCIPLES: i) Lord Reid: “it appears to me that one reason why the
authorities on natural justice have been found difficult to reconcile is that
insufficient attention has been paid to the great difference between various kinds of
cases in which it has been sought to apply the principle. What a minister ought to
do in considering objections to a scheme may be very different from what a watch
committee ought to do in considering objections to a scheme may be very different
from what a watch committee ought to do in considering whether to dismissal.
These appear to fall into three classes: dismissal of a servant by his master,
dismissal from an office held during pleasure and dismissal from an office where
there must be something against a man to warrant his dismissal.
Nathulal vs. Bombay Corporation (AIR1959 SC 34)
Brief Facts: The building of Nathulal was very old aged, above 200 years, in
which several families were residing. The condition of the building was very
ruinous. If it was allowed, it would collapse and several hundred persons would
die. Similar conditioned buildings were collapsed and several hundred persons
died. Municipal authorities forcibly got vacated the inhabitants of that building
and demolished it. The petitioner-building owner sued the respondent for not
giving notice before demolition.
JUDGEMENT: The Supreme Court upheld the decision of the Municipal
Corporation.
*HIRA NATH MISHRA VS. Principal, RAJENDRA MEDICAL COLLEGE
(1973 SCC 80) (AIR 1973 SC 1260)
Brief Facts: There were two separate hostels for boys and girls. One night, some
boys entered into the girls’ hostel without wearing dresses (naked) and caused
nuisance and inconvenience to the girl students. The girl students reported the
matter to the Principal, who conducted the enquiry. The statements of the girls
were recorded behind the wrong-doers. In enquiry, it was found true. Then he
gave notice-cum-charges. The delinquents refused the charges. The principal
dismissed those students. They sued the principal that he did not adopt the
principles and natural justice, and conducted without their presence, had not given
an opportunity to represent their defense, and also had not given an opportunity of
cross-examination, etc.
JUDGEMENT: The Supreme Court upheld the action of the principal.
PRINCIPLES:
i. The Supreme Court observed, “The girls would not have ventured to make their
statements in the presence of the miscreants because if they did, they would have
most certainly exposed themselves to retaliation and harassment thereafter. The
college authorities are in no position to protect the girls students outside the college
precincts.”
ii. Dismissing and student from the college is a quasi-judicial act.
iii. If a show cause notice is issued and explanation is considered by the authorities
before taking action, the principles of natural justice cannot be said to have been
violated on the ground that more opportunity should have been given.
PROBLEM-1: Sharada appeared in Matriculation examination and answered all
the question papers. The Board cancelled her examination on the grounds of
shortage of attendance. She challenges the decision. Decide. Does it make any
difference if she was not allowed to appear in the examination because she was
having shortage of attendance?
Solution: This problem is identical with the case of “Board of high School vs.
Kumari Chitra (AIR 1970 SC 1039). In this case, the Supreme Court set aside the
decision of the board, which acted as a quasi-judicial capacity, and it should
observe principles of natural justice. If the same Board did not accept her
application basing on the ‘shortage of attendance’, then their act becomes
administrative. Under such circumstance, she could not be allowed to write the
examination. ‘Attendance’ is a basic qualification of the examinee; the students
should have to fulfill it.
PROBLEM-2: The examination result of the petitioner was cancelled and he was
debarred from appearing in the next year’s examination, for using unfair means in
the examination. The examination committee of the Board which had cancelled
the results afforded no afforded no opportunity to the petitioner. Advice the
petitioner above the grounds on which he can proceed to the court.
Solution: Here the petitioner’s result could be withheld by the Examination
Committee subject to the condition that they should give a reasonable opportunity
of hearing to him. Whereas they had taken one-side decision by cancelling his
previous examination, and also imposed penalty by debarring h m in the next
year’s examination, that too without notice and hearing. Both of these acts of
Examination committee badly affect on the petitioner. The petitioner is entitled to
‘Notice’ and ‘fair hearing’. Hence the decision of Examination Committee shall be
set aside.
PROBLEM-3: Chief Controller of imports cancelled the import license of X on
the ground that he has obtained it by misrepresentation and fraud. X field a writ
petition on the ground that reasons for decisions were not communicated to him
and his plea for personal hearing was rejected.
Solution: The action taken by the Chief Controller of imports and exports does
not come under nay exception to the ‘Fair Hearing’. X must be given notice and
an opportunity of fair hearing. The action of Chief Controller was bad in law and
against the principles of natural justice.
ERROR APPARENT ON THE FACE OF THE RECORD
Meaning: Error apparent on the face of the record means some mistake or error in
the foundation, proceeding, judgement or execution of an action in a court of
record, or in a tribunal. Such error must not mean a mere accidental or formal
error. It must be a substantial error
R vs. NORTHUMBERLAND AND COMPENSATION TRIBUNAL EX
PARTE SHAW (1952)1 KB 338(CA)
Brief Facts: The applicant-Thomas Shaw worked as a clerk in ‘the Gosforth
Urban District Council’ in England. Later he was transferred to ‘the west
Northumberland Joint Hospital Board’. While he was serving in ‘Hospital Board’,
the Parliament passed an Act known as ‘the national health service act, 1946’. By
that Act the petitioner and some others were removed from the services.
‘Northumberland Compensation Tribunal’ was established under that Act to
provide the compensation to the retrenched employees. That Tribunal calculated
the services of the applicant served in Hospital Board, i.e. from -10-1936 to 31-3-
1949, and paid the compensation for that period only under the National Health
Service (Transfer of Offices and compensation Regulations, 1948. It did not
calculate the services of the applicant under the Gosforth Urban District Council.
The order of the tribunal was a ‘speaking order’ showing the patent error on the
face of the record.
Thomas Shaw fields his objections, and requested that his services in Gosforth
Urban District Council should be included in the compensation. The Tribunal did
not accept his request. He sued the Tribunal.
JUDGEMENT: The Kind bench issued the Writ of Certiorari against the Tribunal
for correcting error of law.
PRINCIPLES: (i) In England, this is the first case-law from which ‘error of law
apparent on the face of the record’ has become an independent ground for issuing
the Writ of Certiorari to correct it. Previous to this case-law, Writ of Certiorari was
not available on such grounds against the Tribunal. The Tribunal’s decision was
final. There was no remedy. Therefore, Northumberland case has brought a
change in judicial field. Now error of law apparent on the face of the record is a
good and independent ground for issuing the Writ of Certiorari.
SPEAKING ORDER
MEANING: ‘Speaking Order’ is an order, which says its own story, and is
intelligible. It speaks for itself and gives reasons for such decision. Errors, if any,
are apparent on the face of it. ‘Speaking orders’ consisting errors could be quashed
by the Writ of Certiorari. It is also called ‘Reasoned Decision’
OBJECTIVES: The objectives of ‘Speaking Order’ are four-fold:
1. The executive authorities are now called rigid bureaucrats. They enjoy a
wide range of discretionary powers. ‘To record the reasons’ condition
functions as a deterrent on such rigid bureaucrats. It checks their
atrocities.
 2. To-day, the administration or the State has been changed from ‘Police
State’ to ‘Welfare State’ ‘Reasoned decision’ is the reflection of ‘welfare
state’.
3. Speaking order gives clarity to the decision, and excludes arbitrariness,
ambiguity and uncertainty.
4. ‘Errors are apparent on the speaking order. ‘The aggrieved party can get
remedy of it by Writ of Certiorari. If the affected party himself is in
error, then too the speaking order satisfies him.
‘Menaka Gandhi vs. Union of India (AIR 1978 SC 597) (Passport Case)
Brief facts: Smt. Menaka Gandhi was the wife of late Sanjay Gandhi, S/o Indira
Gandhi. After the death of Sanjay Gandhi, rivalry arose between Menaka Gandhi
and her mother-in-law Indira Gandhi. The passport was issued to Menaka Gandhi
on 1-7-1976 under the Passport Act, 1967. The Regional Passport Officer, Delhi
wrote a letter dated 2-7-1977 to Menaka Gandhi intimating her that the
Government of India decided to impound her passport under Sec. 10(3) (c) of the
passport Act, 1967 “in the public interest” and also asked her to surrender her
passport in their office. The letter was received by her on 4-7-1977. She wrote a
letter to surrender her passport in their office. The letter was received by her on 4-
7-1977. She wrote a letter to the said office asking him to furnish a copy of the
statement of reasons for making the order as provided in Sec. 10() of passport Act.
The said officer gave a reply that the copy of statement of reasons could not be
given “in the interest of the general public”. Aggrieved by it, she filed a writ
petition challenging the act of the passport authorities and also challenging the
validity of Sec. 10(3)(c) that it was against the Articles 14,19(1) (a), 19(1)(g) and
21.
JUDGEMENT: The Supreme Court gave judgment in favor of Menaka Gandhi.
The supreme Court quashed impounding order of passport authorities, and also
criticized their attitude for not giving the reasons and also not furnishing a copy of
their decision.
PRINCIPLES:
i. Bhagawati J. Opines, “Recording reasons is a health check against abuse or
misuse of power”
ii. Section 10(3)(C) of the passport Act, 1967 was violative of Article 21, since it
did not prescribe procedure within the meaning of Article 21, Section 10(3) was
also violative Articles 19(1) (a) and (g) since it permitted to impose restrictions on
the passport holders that too without assigning reasons for doing so. The Supreme
Court struck down sec. 10(3) (c) of passport Act.
iii. The Supreme Court opined that the Passport authority did not follow the
principles of natural justice in issuing orders against Menaka Gandhi. They had
not followed’ audit alter am preterm’ (hear the otherwise). They simply tried to
avoid under the pretext of ‘public interest’. But they did not show what public
interest was going to be protected by impounding the passport of Menaka Gandhi.
If the public interest was a real one, they might have disclosed it in the order itself.
Their order itself spoke about their mala fide intention
iv. Menaka Gandhi case is a high-water mark in the development of the law
relating to ‘speaking orders’
TRIBUNALS
Tribunals=Bodies with judicial or quasi-judicial functions set up by statute and
existing outside the usual judicial hierarchy of Supreme Courts, e.g. Administrative
Tribunals, Industrial Tribunals, sales Tax tribunals. Income-Tax Tribunals, etc. in
most cases, Chairman are judges r retired judges of High Courts appointed by the
President or India with the consultation of the Chief Justice of the Supreme Court.
Scope: The necessity for establishment at Administrative Tribunals was
recommended by the Swaran Singh Committee appointed by Parliament. The
Central Administrative Tribunal with a Principal Bench at New Delhi and
additional Benches at Delhi, Mumbai, Calcutta, Chennai, etc, has been established
from 1st November, 1985. The Administrative Tribunals Act(Act XIII of 1985) was
passed by Parliament in the early part of 1985 in pursuance of the power given by
Article 323-A (Part-DIV-A) of the constitution of India. The Act XIII also
empowers for the establishment of a separate Administrative Tribunal for a State of
a Joint Administrative Tribunal for two or more states.
KINDS OF ADMINISTRATIVE TRIBUNALS: There are two kinds of
Administrative Tribunals. They are:
1. Central Administrative Tribunals and
2. State Administrative Tribunals.
1. CENTRAL ADMINISTRATIVE TRIBUNALS: The central
Administrative Tribunal has its Principal Bench at New Delhi and additional
Benches at Delhi, Mumbai, Calcutta, Chennai, and Hyderabad. These Central
Administrative tribunals deal the matters and particulars relating to the Central
Government employees, viz railway, postal, telecom, insurance, etc., who are
under the service of union. The matters in relation to recruitment and all service
matters in respect of officers belonging to all India Services or of members of the
civil service of the Union or holding a civil post under the union or civil post
connecte4d with defense or in the defense services shall vest with the Tribunal
2. STATE ADMINISTRATIVE TRIBUNALS: A separate Administrative
Tribunal has been established for each State. For small State a Joint
Administrative Tribunal has been established Example: Punjab & Haryana. The
matter in relation to recruitment and all service matters in respect of officers
belong to all state services or members of the civil service of the state or holding
a civil post under the state shall vest with the state administrative tribunal.
Andhra Pradesh state administrative tribunal is situated in Hyderabad.
 REASONS FOR THE GROWTH OF THE ADMINISTRATIVE
TRIBUNALS
1. The merits and advantages of the Administrative Tribunals are ‘speaking
reasons’ for the growth of them.
2. Minimum norms of fair hearing are observed in the Administrative
Tribunals. They do not adopt the lengthy process of the courts
3. Speedy disposal of the matters is a great advantage of them. They need not
adhere with C.P.C., Evidence rules, etc.
4. Administrative Tribunal is specialized n service matters. They deal with
only service matters. Whereas other courts also deal with other branches of law.
To-day, specialization has become in every field, viz. eye specialist, ENT
specialist, gynecologist, children’s specialist, cancer specialist, etc, etc. in
medicine field. They are separated from a single genus of medicine, and
thereafter each specialized as separate subject in its own field. The object of
specialization is to provide the best services, similarly, in law; Administrative
tribunal renders its services in service matters, in which it is specialized.
5. Judiciary, legislature and executive are there important branches for
democratic country. To-day the functions of executive have been changed from
‘police state’ to ‘welfare state’. Hence there is a heavy work load on executive.
Naturally, where the work is heavy and the number of employees is large, there
must be some disputes in service matters, to solve their problem through
ordinary courts means consumption of their valuable time. Otherwise such time
can be allotted for the other aggrieved people. Therefore, a separate
administrative tribunal is justified.
6. To get the remedy through administrative tribunals is cheaper, speedy,
effective and efficient than courts.
7. The subject of administrative adjudication has received serious attention in
recent years in all countries.
8. The Supreme Court emphasized the great need for simplifying and
streamlining service rules and giving them statutory scope so as to promote
contentment among the services by extending the area of equal treatment and
imparting stability in the conditions of service.
9. The Tribunal is composed with the experienced civil servants and also
justice of High Court (whether retired or transferred). Once a public servant is
appointed as a member or chairman of the tribunal, he is ineligible for further
employment in other government departments or undertaking. Such types of
guarantees are similar to those provided for the justices of the High Courts, the
Auditor-General and other constitutional authorities. It gives impartial results.
10.The Frank’s committee was appointed in England in 1955 to make
recommendations about administrative tribunals. It stated that Tribunals have
certain characteristics, which often give
DISTINCTION BETWEEN ADMINISTRATIVE TRIBUNALS AND COURTS
ADMINISTRATIVE TRIBUNAL
1. Administrative Tribunal need not
follow C.P.C Evidence rues
2. It deals with only the service matter
3. The members need not be a trained
person in law.
4. The decision is subjective
5. It is more rapid, cheap and efficient
6. It is new trend in the world,
including India
7. It solves the service matters basing
on departmental policy and
technicality
8. It need not follow precedents,
principals of res judicator.
Estoppels.
9. ‘Independence of judiciary’
principle is not seen in
administrative tribunals. The
executive interferes with the
tenure, terms and conditions of
service of the members and
chairman. Of course, certain
constitutional guarantees are
provided to check the executive
power.
10.Strictly speaking, it is a branch of
Government Lord Greene criticizes
Tribunal’s functions are ‘hybrid
functions’ i.e. executive plus
judicial.
11.To solve the over-burden on the
courts the system of administrative
tribunals has been developed.
12.They are functional rather than a
theoretical and legalistic approach
13.They enjoy a wide discretion
14.A tribunal possesses some of the
trappings of a court but not all.
15.An administrative tribunal cannot
decide ‘vires’ of legislation.
COURT
1. Court has to follow C.P.C.,
Evidence rules
2. It deals all matters
3. The judge or magistrate in the
court is a trained person in law
4. The decision is objective
5. It is more lengthy, costlier, and
inefficient particularly in-service
matters, when compared with
tribunal
6. They system of court was
established some centuries back
7. It solves all matters basing on
the rule of law procedure, oath,
evidence, etc.
8. It should follow precedents,
principles of res judicata,
estoppels.
9. Courts function under the
principles of ‘independence of
judiciary’. Therefore, the
executive does not interfere with
the judges ‘tenure, terms and
conditions of service,
10.it is purely judicial
11. The traditional courts are
overburdened with accumulated
cases.
12.These are conservative, rigid,
and procedural technically
adhered
13.They enjoy a lesser discretion
compared with administrative
tribunals
14.The court possesses all the
judicial qualities.
15.A court of law can decide ‘vires’
of legislation. Example; Sec. 303
IPC was removed after the
decision of Mithu vs. State of
Punjab 1983.
2. IMPOSING FETTERS ON DISCRETION BY SELF-IMPOSED RULES
OF POLICEY: The authority has discretion in certain general policy. But he
imposes fetters on policy to be applied by it rigidly to all cases coming before him
for decision.
GELL vs. TEJA NOORA (ILR 1903) 27 Born 307)
Brief Facts: The Bombay Police Act, 1863 delegated powers to commissioners of
policy, Bombay to issue licenses to the carriages or to refuse licenses for any one
which he might consider to be insufficiently sound or otherwise unfit for the
conveyance of the public. The commissioner issued a general order setting forth
the details and models of construction of the carriage.
JUDGEMENT: The Bombay high court held that the commissioner was
empowered to inspect carriage and issue licenses or to refuse, but he was not
empowered to frame the new rules ducting for the construction of new models of
carriage. The commissioner, by issuing the order, imposed fetters on discretion by
self-imposed rules of policy, which was bad in law
3. ACTING UNDER DICTATION: The parent Act delegated certain powers
upon certain administrative authority. He himself should perform such action. If
he seeks the instructions from any other person, or from his superior person, it
becomes bad in law. It is known as acting under dictation.
Orient Papers Mills vs. Union of India (AIR 1970 SC 1498)
Brief Facts: The parent Act delegated powers to levy excise to the Deputy
Superintend. He was to decide and collect the levy excise depending upon the
circumstances. In this case, the deputy superintendent imposed certain levy in
accordance with the directions of the collector.
JUDGEMENT: The Supreme Court quashed the orders of Deputy Superintendent
opining that he acted under dictation, and such orders were bad in law, and were
the result of failure to exercise discretion
Ram Manohar Lohia vs. State of Bihar (AIR 1966 SC 740)
Brief Facts: Ram Manohar Lohia, the petitioner, was detained by police under the
Defence of India Rules, 1962 to prevent him from acting in a manner prejudicial to
the maintenance of “law and order” whereas the rules, 1962 empower the
authorities to detain any person, if he acted prejudicial to the maintenance of
“public order”
JUDGEMENT: The Supreme court quashed the detention order, as the grounds of
detention were irrelevant
Ubi jus ibi remedium’
Ubi jus ibi remedium’ (Where there is a right, there is a remedy) is famous legal
maxim. We have seen our constitution has provided and guaranteed the
fundamental rights. For the protection of these important rights., the constitution
has provided the writ jurisdiction to the Supreme court under Article 32 and tot the
 High courts under 226 respectively. Whenever the fundamental rights are
infringed, the aggrieved citizen can have effective remedy with the help of these
two Articles. Actually, Article 32 itself is a fundamental right. Article 32
guarantees to move the Supreme Court by appropriate proceedings for the
enforcement of the fundamental rights, similar power has been conferred to the
high courts by Article 226. Articles 32 and 226 are also called as ‘constitutional
Remedies”.
The Supreme court and High courts have authority to issue prerogative writs.
They are
1. Writ of Habeas Corpus,
2. Writ of Mandamus,
3. Writ of Prohibition,
4. Writ of certiorari, and
5. Writ of Quo Warranto.
LOCUS STANDI vs. PUBLIC INTEREST LITIGATION
LOCUS STANDI = A PLACE OF STANDING. The right to be heard in court
or other proceeding
The person, who approached the court, first must possess the quality and right to
approach the court on his own title for example: There is a dispute on the question
of owner ship of the land between A and B. Any one of them, i.e., A or B may
approach the court. Third person is not entitled to file the suit against the said land,
unless he shows that he is also having interest on that land. This is called “locus
standi”
EXCEPTION:
(I) Third Persons: The principle of ‘locus standi’ is not applicable in the cases
of writs of Habeas corpus and Quo Warranto. Any person can file the
applications for the writs of Habeas corpus and Quo warranto on behalf of others.
(II) Consumer Disputes: The consumer societies can file petitions before the
Consumer Redressal for a on behalf of the real aggrieved consumers. This we
have seen in “Law of Torts & Consumer Protection Act”.
(III) PUBLIC INTEREST LITIGATION: There are certain circumstance, in
which the principle of ‘locu standi’ does not applicable. Any person a body of
persons can approach the Supreme Court of High court for seeking the relief for
others. For example: In Jeedimetla industrial Area (Hyderabad). The affluent
from industries caused danger to animals and villagers. Most of the villagers
are very restrain the industries. The A.P. High court issued orders against the
industrialists and the government restraining affluent for the protection of
villages. This is called “Public interest litigation”. A public interest litigation is
a litigation filed by any person in the public interest and welfare. In fact, the
Environmental Law developed on the public interest litigation only. Now not
only environmental cases, in other fields also this type of proceedings are filed
 before the courts, such as human right, consumer protection, prisoners, labour,
minimum wages, etc., etc.
BANDHU MUKTI MORCHA vs. UNION OF INDIA& OTHERS
(AIR 1984 SC 802) (BONDED LABOUR CASE)
Brief Facts: There were several hundreds of bonded laborer’s working in Stone-
quar5ries in Faridabad District. Bandhu Mukti Morcha, an association registered
under societies Registration Act, 1860. Wrote a letter to the Supreme court
describing “inhuman and intolerable conditions of such bonded laborer’s”. The
supreme court treated that letter as a writ petition and appointed a commission
consisting two advocates. The commission visited the stone –quarries and reported
that the facts mentioned in the letter of Bandhu Mukti Morcha were true and
genuine. The supreme court immediately gave the judgment to release the bonded
laborers, and condemned the Government’s attitude.
WRIT JURISDICTION OF THE HIGH COURT (ARTICLE 226)
Article 226 empowers every high court to issue any writ to any person or authority
including any government in appropriate cases. The writ jurisdiction of the High
court can be divided into four heard
1. Territorial jurisdiction
2. Subject-matter
3. Discretionary nature of the remedy; and
4. Relief cannot be barred by statute.
1.Territorial Jurisdiction: A High Court is established in every state. A high
court established in Hyderabad has territorial jurisdiction of entire A.P state. For
smaller states, a high court is established for two or three states. Example. High
court of Haryana and Punjab, which has territorial jurisdiction over Punjab and
Haryana states. As a general rule, each High Court can issue any writ within its
own jurisdiction. The constitution amendment Act, 1963 empowers the high court
to issue any writ against any person or authority situate outside its jurisdiction in
the necessary and genuine reason
2.Subject-Matter: the writ jurisdiction of the High court is wider than that of
supreme court the writ jurisdiction of the supreme court is limited only to
safeguard fundamental rights, whereas the power of the high court’s extends to
issuing writs of the enforcement of fundamental rights was well as for any other
purposes.
3.Discretionary nature of the remedy: The issuing of writs by the high court
solely depends upon its discretion/ “the power to issue a writ purely discretionary.
The high court can issue writs bashing upon the genuineness, worthiness, and
compete nature of the issue. There are certain principles which influence the issue
of writs. This principled equality applies to the supreme courts and also to the high
courts. They are
I) Doctrine of laches; II) Futile writ;
 III) Suppression of facts IV) Disputed quested of fact etc
(i)Doctrine of laches: (refer Topic 9 unreasonable delay and laches in writ
proceedings).
(ii)Futile writs: futile writ means useless writs. where they were it applied does
not serve any truthful purposed then the court may reject it with its own discretion.
Secretary of State vs. G.T.Sarin & co.
Brief facts: In this case, the plaintiff company supplied the goods to a government
Department on the request of an officer. Later, when the company prepared the bill
for the goods supplied, the state government objected under section 175(3) of the
government of India act, 1935 and denied payment.
JUDGEMENT: The Lahore High court held that the Government was stopped to
claim the provisions of section 175(3), being it already consumed the goods
applied by the plaintiff-company. Moreover, when compared the rates of goods
supplied and the market rates, the rates of goods supplied were found cheap and
reasonable. Therefore, the government was ordered to pay the amount of the
goods consumed.
EXEMPTION: Clause (2) of Article 299 exempts the president, the Governor of
the state and the officials making a contact under article 299 (clause1) on behalf of
the president or the Government from personal liability. It provides that neither the
president nor the governor shall be personally liable in respect of any contract or of
any assurance made or executed for the purposes of the constitution of India or for
the purpose’s enactment relating to the government of India. Nor shall any person
making or executing any such contract or assurance or promise on behalf of any of
them be personally liable in respect thereof. It does not mean that the central
government or state government is completely exemption from the doctrine of
estoppels. The doctrine of promissory estoppels applies against the government for
the quasi-contracts or promises or assurances as explained in the above case -laws.