87554045 Administrative Law Notes for Exam

7/30/2019 87554045 Administrative Law Notes for Exam

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Dear Reader,

Please note that I have not written down notes for 3.4 (Administrative Appeal), 4.4.2

(Constitutional imperatives and use of discretionary authority), 4.4.4 (Non-exercise of

discretionary power), 5.3 (Exclusion of judicial review), 5.4 (Suits against administration),

6.2.6 (Doctrine of legitimate expectation). For 3.4, you just need to know the meaning ofadministrative appeal, for 4.4.2 you just have to show how administrative discretion must be

used to carry out constitutional directions, for 4.4.4 just write how discretion may be

questioned on the ground of non-exercise of such power. With respect to 5.3, you need write

down that HCs power of judicial review cannot be excluded and mention L. Chandra Kumars

case, for 5.4 you need to write down how the government and other authorities can be brought

under the writ jurisdiction of the courts. Please remember that the writs to be used here are

Habeas Corpus, Mandamus and Quo Warranto. Certiorari and Prohibition deal with judicial

authorities primarily. As far as 6.2.6, the doctrine of judicial expectation means that when the

executive declares that it shall do a particular thing, there is a legitimate expectation on the part

of the public that the government shall do the same with reasonable care and caution. Also, my

notes under the RTI Act are incomplete. For this part you need to know about the informationwhich may be disseminated as such, authorities and basic procedure under the act. Also, as

regards the functions of ombudsman, just mention general functions and nothing more. Further,

the important chapters for the examination are Chapter 1 (2 questions), 2( 2 questions), 4 (1

question), 1 or 2 short notes with respect to the writs and 1 question with respect to the RTI

Act.

The source of my notes is MP Jain and class notes. The reading material consists of a total of

59 pages. Kindly let me know incase any doubt arises.

Regards

Ankita

ADMINISTRATIVE LAW

Unit I- Evolution, Nature and Scope of Administrative Law

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

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

century.

2. The 19th century was characterised by the welfare state wherein there was minimum

government control, free enterprise, contractual freedom, etc. Individualistic theories

flourished in this period.

3. The state played a negative role. It was primarily a police state which helped in

maintenance of law and order, protecting the nation from external aggression,

dispensing justice to its citizens and collecting taxes for financing such activities.

4. However, in the 20th century, the evils of this system were realised. Due to contractual

freedom and freedom of enterprise, there was unequal distribution of wealth. This led to


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several socialist movements specially ones in which the grievances of labourers was

voiced.

5. Thus, a need was felt that the state shall be more than a police state. It shall help in

alleviating the poor, regulating individual enterprise and most importantly bringing

about social justice. This led to the establishment of the social welfare state.

6. This may be seen even in case of India. Before independence, India was essentially a

police state as the British were more interested in furthering their own interests rather

than working for the welfare of the people.

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

especially after the adoption of the constitution.

8. The preamble to the constitution states that India shall be a socialist, secular,

democratic, republic and must provide justice, equality, rights, freedom, etc. to all.

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

distribution of wealth.

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

fundamental right.

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

12. Further, various social legislations such as the Factories Act, Minimum Wages Act, etc.

have come into the picture.

1.2 Increase of functions of modern state

1. The growth of administrative law has primarily been due to the growth of

administrative powers and functions which is again the result of increased state

functions.

2. This has also been also attributed to the fact that the international situation in the 20 th

century was such that at times quick decisions required to be taken by the executive in

times of emergency and thus administrative powers increased.

3. The state today has taken up functions which were earlier carried out by the privatesector. It provides for transport, communication, energy, housing, banking, education,

trade and commerce, etc.

4. The functions of the state today may be put into 5 broad categories, namely- as a

protector, provider, entrepreneur, economic controller and arbiter.

5. A state consists of 3 organs- the legislature, executive and the judiciary. Out of the

three, the executive is the most powerful these days.

6. Not only does the executive have powers of administration, it also has powers of

legislation in the form of delegated legislation. Alongwith that it has the power to


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conduct enquiries and investigations and give binding decisions as in case of

administrative adjudication. Sometimes it may even exercise its discretion.

7. However, some sort of check must be exercised on such powers and the same is done

with the help of administrative law. Administrative law helps in balancing public power

and personal rights.

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

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

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

of law, separation of powers, principles of natural justice, judicial and parliamentary

controls, administrative appeals, ombudsman, etc.

1.3 Definition and Scope of Administrative Law

1. According to KC Davis, administrative law is the law concerning the powers and

procedures of the administrative agencies including especially the law governing

judicial review of administrative action. This explains the American approach to the

subject.

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

legislature which affects the rights of private parties through adjudication and rule

making.

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

the procedure followed by administrative authorities, it does not talk about certain other

functions of the executive which are non-adjudicatory in nature and do not at the sametime fall within the scope of legislative or quasi-judicial function. Also, it lays too much

emphasis on judicial control and does not mention about other means of control such as

parliamentary control, etc.

4. The British approach has been provided in the definition given by AV Dicey. He

defines administrative law as denoting that portion of a nations legal system which

lays down the legal status and liabilities of state officials, the rights and liabilities of

private individuals in their dealings with public officials and specifies the procedure by

which such rights and liabilities may be enforced.

5. Diceys definition may be criticised on the ground that it is a very restrictive definitionas it emphasises only on the aspect of control over public officials. Further, it only talks

of state officials and ignores others like public corporations, etc. It excludes several

other functions and powers of public authorities.

6. The modern British approach can be seen in the definition given by Sir Ivor Jennings

who states that administrative law is the law of the administration. It determines the

organisation, powers and duties of the administrative authorities.

7. The above definition is the most widely accepted definition of administrative law.

However, it has been criticised on the ground that it doesnt differentiate between

administrative law and constitutional law. Also, it is too broad a definition. Further, it


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does not provide for remedies available to an aggrieved person when his rights are

affected by administrative action.

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

governmental power. The primary object of administrative law is to keep powers of the

government within their legal bounds so as to protect the citizens against their abuse.

9. According to Jain and Jain, Administrative law is deals with the structure, powers and

functions of the organs of the administration, the limits of their powers, the methods

and procedure followed by them in exercising their powers and functions, the methods

by which their powers are controlled including the legal remedies available to a person

against them when his rights are infringed by their operation.

10. Administrative powers have been called a necessary evil as even though they are

required, they may lead to arbitrariness on the part of the executive. They might even

adversely affect the rights of individuals.

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

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

such power.

13. The similarity between administrative law and constitutional law is to the extent that

both deal with functions of the government and both form a part of modern public law.

14. Differences may be discussed as follows-

CONSTITUTIONAL LAW ADMINISTRATIVE LAW

It deals with the organs and functions of the

state at rest.

It deals with the organs and such functions in

motion.

It deals with the structure of the various

organs of the state and regulates their relation

with each other and with individuals.

It deals with the functions of various organs of

the state and controls the exercise of powers

by the executive.

It lays down fundamental and basic principles. It fills in the details.

It is based on a written constitution. It is based on statutes, precedent, etc.

15. However there are similarities between the two such as availability of constitutional

remedies, concern with affected rights of individuals or fundamental rights, etc.

16.As per several American and English authors the difference between the two is more of

degree, convenience and custom rather than that of logic and principle.

1.4 Separation of Powers


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

Montesquieu.

2. This doctrine has 3 meanings, namely-

(a) The same person cannot be a member of more than one organ of the government.

(b) One organ of the government cannot control or interfere with the functions of the

other.

(c) One organ of the government cannot perform the functions of another.

3. This doctrine was theoretically very sound but posed certain practical problems such as-

(a) Its historical basis which describes separation of powers as thriving in England is

faulty.

(b) It is based on the assumption that all 3organs of the government have completely

distinct powers. This is wrong as any one organ of the government performs atleastsome of the functions of the other two.

(c) Also, complete separation is neither practical nor desirable. If the legislature were

only to legislate, it could not punish anyone for its contempt.

(d) Modern state is a welfare state characterised by complex socio-economic problems

and the same cannot be solved with complete separation.

(e) The primary aim of this doctrine was to ensure greater freedom for the people and

strict separation may not necessarily ensure the same.

4. This doctrine is used more in the form of a system of checks and balances these days

wherein every organ of the government performs some functions of the other 2 organs,

thereby exercising a check on arbitrary use of power.

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

system of checks and balances.

6. This doctrine has been used in a strict sense in the US wherein legislative powers rest

with the Congress, executive powers with the President and judicial powers with the

Supreme Court and the subordinate courts. All three organs exercise a system of checks

and balances on each other and no one organ can encroach upon the power of another.

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

point of time has there been strict separation in the UK inspite of there being three

different organs having three different functions which may even overlap at times. An

example may be given of the Lord Chancellor who is the head of the judiciary, is the

chairman of the House of Lords which is the legislature, is a member of the executive

and is generally part of the cabinet.

8. In India although this doctrine has been implicitly set out in the constitution and forms

part of the basic structure of the constitution, there is no complete separation of

functions as such inspite of there being a scheme for separation of powers. The same is

not practically possible as well.


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1.5 Rule of Law

1. Rule of law is a basic principle of the British constitution and has even been adopted by

the Indian and US constitutions. It forms the entire basis for administrative law.

2. It was first stated by Sir Edward Coke who stated that the King cannot be above God

and the law and thus upheld the supremacy of the law over the executive.

3. It was further developed by Dicey who stated that rule of law means the absolute

supremacy or predominance of regular law as opposed to influence of arbitrary power

and excludes the existence of arbitrariness of predominance, or even wide discretionary

authority on the part of the government.

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

law and predominance of legal spirit.

5. Supremacy of the law- This means that no man may be punished without due process of

law for an established breach of the law in the ordinary legal manner in the ordinary

courts of law. It also means that administrative discretion leads to arbitrariness and thus

the same should be avoided. The law is supreme and even the administration is under

the law.

6. Equality before law- This means that every citizen must be subject to one and the same

body of law which is the ordinary law of the land administered by the ordinary courts

of the land. Dicey criticised the principle of Droit Administratiff as in the French legal

system which provided for separate tribunals for settlement of disputes between the

government and individuals. He saw this as a negation of the principle of the rule of

law as it took away the jurisdiction of the courts and subject government officials to a

law different from that which the general public was subjected to. Also, it allowed the

administration to adjudicate upon matters which was primarily a function of the

judiciary.

7. Predominance of legal spirit- As per Dicey it is the courts which enforce rights of

individuals while a written constitution merely declares such rights. Thus, the

constitution is not the source but only a consequence of legal rights. It was emphasised

that in order for rights to be secured, enforcement by courts was required rather than a

mere declaration whereby such rights could easily be trampled upon. He used the

example of the various Habeas Corpus Acts which actually went ahead to talk of the

enforcement of rights rather than defining them.

8. One of the merits of Diceys theory was that it helped exercise a check on executive

powers and kept administrative authorities within their limits. It became a touchstone

to judge administrative acts.

9. However, even during Diceys time in 1885 there were several acts which conferred

wide discretionary powers on the executive without allowing any sort of judicial

review, thereby contravening this doctrine.

10.One of the major drawbacks of this theory lies in the fact that discretionary powers are

regarded as being arbitrary and in a modern welfare state, administrative discretion isindispensible.


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11. Another drawback is a presumption made by Dicey about the judiciary being the

solution to all suits. His mistrust over the system of Droit Administratiff in France was

wrong as this system exercised checks in a much better manner than the judiciary. The

Counseil d Etat which exercised judicial control over the administration was infact a

part of the administration itself while being a court in reality.

12.Diceys rule of law however has been identified in democracies across the world with

rights of the people. The International Commission of Jurists in their Delhi Declaration,

1959 accepted the idea of rule of law as the modern form of law of nature.

13.Though Diceys original rule of law cannot be accepted in totality, the modern rule of

law as given by Davis has the following 7 connotations-

(a) Law and order

(b) Fixed rules

(c) Due process or fairness

(d) Elimination of discretion

(e) Principles of natural justice

(f) Preference to ordinary courts over administrative tribunals

(g) Judicial review of administrative actions

14. Rule of law is a part of the basic structure of the Indian constitution. A few examples

of where it may be seen in the constitution are as follows-

(a) The preamble talks about justice, liberty and equality.

(b) There is provision for judicial review by the SC and the HC s for the enforcement

of fundamental rights.

(c) If there is any abuse of power by the executive, the same may be challenged on the

grounds of malafide, etc. before a court of law.

(d) Art. 21 provides that no person shall be deprived of his life or personal liberty

except in accordance with procedure established by law. This brings in the principles of

natural justice especially after the Maneka Gandhi case.

(e) Art. 13 provides that all rules, ordinances, by-laws, orders, etc. would be regarded

as law and could thus be subjected to judicial review.

(f) The Constitution is supreme and all three organs of the government are below the

constitution.

(g) In India there is no rule of the King can do no wrong.

(h) Art. 14 talks about equality before law and equal protection of the law. Even the

state and its officials are liable in torts and contracts and if any wrong is committed by

an employee of the state, the state may be made liable for such act.


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15. However, in several areas, there exists a great deal of executive interference. This is

primarily due to excessive delegation of powers by the legislature and the judiciary to

the executive. Also, the executive has been given wide discretionary powers. Further, it

is not just the executive but even the legislature which by passing demonic acts such as

the Prevent Detention Act or the Maintenance of Internal Security Act encroaches upon

the rights of the people.

16.In Chief Commissioner, Punjab v. Om Prakash, it was held that the rule of law is a

characteristic feature of the constitution by which the judiciary may question any

administrative action on the ground of legality especially when there is a violation of

fundamental rights.

17.In ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), the freedoms under Art.

19 were suspended and enforceability of Art.s 14, 21 and 22 was suspended during

emergency. Several persons were detained and they approached the courts by filing

writ petitions asking the courts to issue writs of habeas corpus. The majority held in

this case that Art. 21 of the Constitution is the rule of law as far as the Indianconstitution is considered and as the enforceability of the same is suspended, it cannot

be enforced. This was an erroneous judgment and J. Khanna in his dissenting judgment

stated that the rule of law is the antithesis of arbitrariness. The right to life and personal

liberty as enshrined in Art. 21 is inherent in all human beings and thus no person may

be deprived of his life and personal liberty even by state action of suspending such

right

Unit II- Legislative Powers of Administration

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

2. This term is used in two senses. It is either when the subordinate agency exercises

power as conferred on it by the legislature or when such subordinate agency makes

subsidiary rules in accordance with such power conferred on it.

3. In the first sense, it refers to subordinate legislation wherein the executive makes laws

within the limits prescribed by the parent act as it is subordinate to such legislation.

4. In the second sense, it refers to all rules, regulations (which are essentially made by

corporations), by-laws, etc. framed by the executive. An example may be given of the

Essential Commodities Act wherein the list of essential commodities given in the

statute are not exhaustive and the executive may add to it as and when it feels

necessary.

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

grounds-

(a) Publication- Usually legislative acts or orders must be published in the official

gazette for the purpose of notification. However, administrative orders generally need

not be published as they are applied with respect to only a particular individual or a

particular group of individuals.


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

which are specified in the statute, while in the case of administrative action, principles

of natural justice must be followed even when the parent statute is silent on such issue.

(c) Grounds of judicial review- Malafide may be pleaded as a ground with respect to

administrative action but the same can several be used as a ground to challengedelegated legislation.

(d) Differences between legislative and non-legislative functions also come to the

forefront when questions about sub-delegation arise.

6. However, it has been stated by the Committee on Ministers Powers that the test to

differentiate between the two is that the power to formulate general laws, rules, etc. is

legislative while the power to apply such rules and make orders with respect to specific

cases is administrative.

7. This has been stated in the Generality and Prospectivity test as given in Union of India

v. Cynamide India Ltd. wherein an order of the Central Government fixing the

maximum prices for sale of certain bulk drugs was challenged on the grounds of

violating the principles of natural justice as it was an administrative action. The HC on

the other hand held that fixing prices here affects the rights of the general public and

not just particular drug manufacturers and hence it was a piece of delegated legislation

and the principles of natural justice would not apply.

8. In K.I. Shepherd v. Union of India, the application of this rule was rejected. Herein the

rights of particular bank employees were affected due to termination of services caused

by the merger of certain banks.

2.1 Need for delegation of legislative power-

1. Factors leading to growth of delegated legislation-

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

laissez faire state.

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

(c) It reduces the burden of the legislature.

(d) If each piece of legislation were to consist of all possible details, it would become

too complex for the common man to understand.

(e) It would be better to leave such tasks to specialists who shall be in a better position

to make such technical rules, regulations, etc.

(f) At times, it might become necessary to hold consultations with persons going to be

affected by schemes and the same may be done by the administration which works at

the grass-root level.


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

experimentation.

(h) It might not be possible for the legislature to forsee the possible effects of an act

each time owing to the changing circumstances.

(i) Such legislation is required especially during times of emergency such as war, armed

aggression, natural disasters, etc. wherein it might not be possible to the extensively

lengthy and complex process of legislation.

2. Drawbacks of delegated legislation-

(a) It has often been criticised as being an abdication of its powers/duties by the

legislature. Many times only the skeleton of the legislation is laid down, leaving even

the policies and principles to be formulated by the executive.

(b) It leads to arbitrariness as many times no guidelines are laid down using which the

delegate may exercise his functions and thus he gets complete authority to do whateverhe likes.

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

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

public opinion.

3. Thus, an effective system of checks and balances must be developed both at the

legislative level by not allowing for excessive delegation and at the executive level by

avoiding arbitrary use of power and application of mind.

4. Restraints on delegated legislation-

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

delegated legislation is also controlled by the Parliament. There is no restriction on the

capacity of the Parliament to delegate and thus the courts cannot question such power.

However, controls may be exercised by the Parliament if it so pleases and it cannot be

compelled by any external agency to do so.

(b) In the United States due to the presence of a written constitution and the principle of

separation of powers, the Congress cannot delegate excessive amount of power as the same

may be struck down by courts as being unconstitutional. Also, the US Supreme Court has

evolved the doctrine of delegatus non potest delegare by virtue of which, the Congress

cannot delegate as it is technically the delegate of the people. However, keeping in mindpractical considerations, it has been stated that the Congress may delegate provided it lays

down discernible standards and policies which the executive must follow while exercising

such powers.

(c) In India, -

(i) The first important case concerning the limits of delegated legislation was that of

Jatindra Nath v. Province of Bihar where it was held that there can be no delegation

beyond conditional legislation. As per the principle of conditional legislation, the general

piece of legislation is made by the legislature and it is to be enforced by the executive

subject to the fulfilment of a condition. Whether or not the law shall take effect will


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depend upon whether or not such condition has been fulfilled by the administration.

However, this principle was followed only at the time of independence.

(ii) Later in the Delhi Laws Act case, a new approach was adopted. After independence,

states in India were divided into three categories- Part A(provinces of British India), Part

B(princely states) and Part C(smaller territories which were previously governed byGovernor Generals). Part A and Part B states had their own legislature to make laws but

Part C states were under the control of the Central Government. Thus, due to time

constraints, the Parliament passed the Part C States (Laws) Act, 1950 by virtue of which

the Central Government could extend any law in force in a Part A state to a Part C state

with modifications as and when required and in doing so it could also repeal/amend the

provisions of any law, provided it is not a law enacted by the Centre, which is in force in a

Part C state to the extent is inconsistent with the former. All 7 judges gave different

opinions but concurred on 2 major points, i.e. keeping in mind the practical need of

delegated legislation, the same must be continued and as the legislature in India derives

authority from a written constitution, there must be certain limits to the capacity to

delegate (there should not be any excessive delegation). Thus, keeping the same in mind itwas held that the part of the law which allowed it to repeal/amend provisions of laws

prevalent in a Part C state was bad and thus should not be allowed (excessive delegation).

Also, when the law is being made applicable to Part C state subject to modifications, the

modifications must not be such that they change the underlying policy of the law itself.

Further, only such laws as under the Union list and are applicable to Part A and Part B

states must be extended to Part C states so that the state legislatures may not abdicate their

duties of legislation. It was also stated in this case that the legislature may not delegate its

basic functions of policy formulation, etc.

(iii) In Gwalior Rayon Co. v. Asst. Commissioner of Sales Tax, it was held that whenever

the legislature delegates power to an authority, it must lay down the basic policy,principles or standards of guidance for such authority to follow. However, in his dissenting

judgment, Matthew J. stated that as long as Parliament retains its power to repeal the

delegating provision, there is no abdication of its duties (stated in previous case by

Attorney General). However, this view is not proper as keeping in mind the current

political scenario the Parliament cannot possibly repeal the delegating statute after

conferring such power as most present day executives exercise almost complete power

over the legislature as they themselves enjoy a majority in the legislature.

2.2 Constitutionality of Delegated Legislation2.2.1 Skeleton Legislation

1. Skeleton Legislation refers to such a legislation wherein the legislature provides for

merely the basic skeleton and the gaps are filled in or the flesh and blood are provided by

the Executive. In many cases, the judiciary has upheld the validity of such legislations.

2. In Bagla v. Madhya Pradesh, it Ss. 3, 4 and 6 of the Essential Supplies Act, 1946 were

challenged. S.3 laid down that the Central Government may lay down rules for regulation

of production, distribution and prices of essential commodities. This was challenged on theground of excessive delegation stating that the legislature had not laid down any policy or


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standards. But, the SC held otherwise and stated that the basic policy has been provided in

the form of maintenance or increase in supply and maintenance of prices in public interest.

S.4 stated that the Central Government may further delegate its powers to its subordinate

officers or such officers working under the State Government. This was challenged on the

basis of the fact that a delegate may not sub-delegate. However, the SC held that as the

officers to whom power may be sub-delegated have been mentioned in a list under S.4,there is infact delegation by the legislature and not the executive as the latter cannot

merely appoint anyone to perform the duty. S.6 provides that orders made by Centre under

S.3 would have effect even if they were inconsistent with any other act in force. This

amounted to repeal of such other act or its provisions. It was thus challenged on the ground

of repeal of a legislative act by way of delegated legislation (as discussed in the Delhi

Laws Act case). However, the SC upheld the validity of this section and stated that it was

provided only to by-pass any other law in force and not to repeal it. Also, even if any act

gets repealed in the process, it is due to an act of the legislature and not of the delegate as

S.6 was declared by the legislature itself.

3. In Bhatnagar and Company v. Union of India, it was held that the power of the Central

Government under the Imports and Exports Act to restrict or prohibit the import or export

of products of a specific category is valid even if no guidelines for deciding as to how such

commodities are to be chosen is provided in the parent legislation. This is because the

policy has been laid down in a preceding legislation- the Defence of India Act. Also,

owing to the dynamic nature of imports or exports, it becomes impossible for the

legislature to predict as to which goods need to be put into such category.

4. In DS Garewal v. Punjab, the provisions of the All India Services Act which empowered

the Centre to make rules to regulate conditions of service was challenged as amounting to

excessive delegation. However, it was also stated that the rules which would have already

been in existence at the time of enactment of the statute would be deemed to be part of the

act itself. Thus, the rules were held to be valid as they were adopted by the act itself and

thus the underlying policy was established.

2.2.2 Power of Inclusion and Exclusion

1. This is a common legislative practice which provides that certain individuals,organisations, commodities, etc. be excluded or included from the purview of the Act

by way of adding or omitting such names from a schedule annexed to the Act by the

executive.

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

any sort of employment under the Minimum Wages Act so that such group of persons

may or may not be entitled to the wages fixed under the act does NOT amount to

excessive delegation. This is because the policy is already laid down in the act which

entitles such persons to minimum wages who do not receive the same due to unfair

practices, unorganised labour, etc.

3. In Jalan Trading Company v. Mill Mazdoor Union, it was held that the government

may decide to exempt certain establishments from the ambit of the Payment of Bonus


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Act taking into consideration their financial capacity, etc. and the same shall not

amount to being excessive delegation as the policy has already been laid down by the

statute.

4. In Hamdard Dawakhana v. Union of India, for the first time after the Delhi Laws Act

case, a Central Act was held to be ultra vires. Herein, S.3 of the Drug and MagicRemedies (Objectionable Advertisements) Act was challenged. This section contained

a list of drugs whose advertisement was prohibited and entitled the government to add

to or remove from such list. This provision was held to be unconstitutional as there was

no specific standard or guideline laid down to be considered by the executive while

adding or removing names of such drugs.

2.2.3 Power of modification of statute

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

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

of the parent statute.

3. This might seem as a drastic power given in the hands of the executive but it is required

to bring about a certain degree of flexibility in legislation so that changes may be

brought about keeping in mind changing social needs.

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

5. Also, it is generally used when a particular law forays into an entirely new area where

socio-economic or other conditions are different.

6. All the above may be carried out by inserting a removal of difficulties clause or a

Henry VIII clause in the statute.

7. It was named Henry VIII clause after King Henry VIII who was called the

impersonation of executive autocracy by the Committee on Ministers Powers

Report, 1932.

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

and another which is broader.

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

act. It must always be in consonance with the parent act. An example may be given of

the Reorganisation of States Act wherein it has been stated that in order to remove any

difficulty, the President may by order do anything NOT inconsistent with the

provisions of the Act which he considers are necessary for the removal of such

difficulty.

10.The broader clause allows removal of difficulty even if the same modifies the parent

act. An example may be given of Art.s 372 and 392 of the Constitution which

empowers the President to make adaptations and modifications in the existing law.

11.In Jalan Trading Company v. Mill Mazdoor Union, the Payment of Bonus Act under

S.37(1) empowered the Central Government to make any orders for removal of anydifficulty not inconsistent with the purposes of the Act and S.37(2) make such orders


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made by the Government binding. Clause 1 was regarded as being constitutional as it

merely sought to advance the purposes of the act while Clause 2 completely excluded

judicial review and thus was unconstitutional due to excessive delegation.

2.2.4 Power to impose tax

1. Under Art. 265 of the Constitution, no tax may be levied except when provided under

statute. Thus, the power to impose tax essentially rests with the legislature.

2. However, the executive may be asked to specify the rates of tax available provided the

maximum and minimum rates have been provided in the statute itself.

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

4. In Orient Weaver Mills v. India, it was held that the provision empowering the

executive from exempting certain excisable goods from duties leviable on such goodsdoes not amount to excessive delegation.

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

6. Power to impose taxes or duties may even be extended to municipal bodies taking into

consideration the nature of the body to whom such authority is being delegated.

2.3 Consultation of affected interest and public participation in rule making

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

helps in getting the views of affected parties so as to make a better piece of legislation.

It also helps the persons affected as their grievances are heard and suggestions are

taken into consideration.

2. It has been on the rise these days due to the involvement of several organisations which

help in eliciting public opinion and bringing them before the government.

3. However, in order that such participation is allowed, a provision with respect to the

same must be made in the parent act.

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

challenged an order made by the government which extended the limits of the

municipal boundaries without making an prior publication thereby not giving anyone

affected a reasonable opportunity to be heard. The court held that the statute did not

provide for any prior publication of such rules and hence the government is under no

obligation to do the same. Also, reasonable opportunity of being heard cannot be

claimed as it is a legislative function whereby principles of natural justice need not be

followed.

5. As per the General Clauses Act, for the purpose of the term previous publication the

draft of proposed rules must be published by the concerned authority in a manner it


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deems fit. It must specify the time and date of such consideration and must keep in

mind the objections/suggestions while finalising the rules.

6. One of the major issues concerned with such pre-publication of draft rules is that there

is no time lag specified which is to be maintained between the publication of draft rules

and final publication. This may allow the authorities to keep a very small time gapthereby making the entire process a sham.

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

and thus too much is dependent on executive discretion.

8. Further, publication of the rules in the gazette is conclusive proof of the fact that the

rules have been duly made.

9. In Lachmi Narain, atleast a 3 months notice to give effect to a modification to a

schedule in the sales tax act was considered a matter of legislative policy and necessary

for taking into consideration of affected interests.

10.In Raza Buland Sugar Company v. Rampur Municipality, the act stipulated that

publication be made in a newspaper published in Hindi but the municipality published

it in an Urdu daily. The court held the same to be valid on the ground that there has

been substantial compliance with the provisions of the statute as the Urdu daily had a

much wider circulation in the area.

11. In England, there is no statutory mention of consultation of interests but never the less

the same is followed as a general departmental practice.

12. In the US, pre-publication is made mandatory under S.553 of the Administrative

Procedure Act unless the authority feels that the use of such procedure would be

impracticable, unnecessary or contrary to public interest.

2.4 Publication of Delegated Legislation

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

legislation.

2. In the US, only after the Panama case in 1935 was such need felt. Thus, the Federal

Register Act and the Administrative Procedure Act came into force.

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

practice rules are published in the Gazette of India.

4. In 1960, the Central Government commenced the publication of various orders under

the title of statutory rules and orders.

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

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

6. In Maharasthra v. George, it was held that where there is no statutory provision for

publication of rules, it must be published in such media as is generally adopted to

notify all such persons concerned with such rules.


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7. Publication in the gazette is advantageous as-

(a) It gives authenticity to the rules.

(b) It creates certainty in the mind of the people that the rule exists.

(c) The individual may have easy access to the rules.

8. Rules should be generally published in one customary channel and not in several

channels depending on the will of the executive.

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

resolution not published under the act was still valid due to a provision in the act which

stated that no action existed merely on the ground of any defect or irregularity in an act

or proceeding which does not affect the merits of the case.

10. If there is due publication in the mode specified in the statute or in the usual mode, it

amounts to sufficient notice being given.11. Delegated legislation comes into force on the day it is published and not on the day it is

made.

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

publication, the same shall be considered.

2.5 Legislative Control of delegated legislation

2.6 Laying procedures and their efficacy

1. As it is the legislature which delegates, it can exercise a better check.

2. The first step comes into the picture at the time when the rules are being made.

3. As per Rule 70 and Rule 65 of the rules of procedure of the Lok Sabha and the Rajya

Sabha respectively, every form of delegated legislation must first be introduced as a

bill in Parliament.

4. Such bill must be accompanied by a memorandum stating the reason for delegation as

well as the scope of such delegation.

5. This shall enable the legislature to discuss the bill at length and pose questions.

6. The second step comes into the picture after the rules have been made. This is with

respect to the laying procedure.

7. A laying procedure is generally provided for in all common law countries.

8. It ensures that all such rules are placed before the house for discussion and informs the

legislature as to what rules have been made as part of delegated legislation.

9. The laying procedure generally takes place under the parent statute. The rules,

regulations, etc. are laid before the house for a period of 30 days and they can be

annulled if they violate the provisions of the constitution or the parent statute.


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2.7 Judicial Control of delegated legislation

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

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

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

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

delegated legislation made under it shall also be considered as being unconstitutional.

This may happen if the act is contrary to fundamental rights or if it does not adhere to

the centre-state distribution of powers or if it provides for excessive delegation, etc.

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

legislation has been considered in the following cases-

(a) Dwarka Prasad Laxmi Narain v. State of UP- Rules were made under the EssentialSupplies Act as per which in order to carry on coal business, a license is required to be

got from the State Coal Controller who has the power to refuse or exempt any person

from taking such license. This order was held to be arbitrary and violative of Art.s 14

and 19(1)(g).

(b) Chintamani Rao v. State of Madhya Pradesh- The district collector was authorised

to make rules regulating and prohibiting the manufacture of bidhis. This was struck

down as being unreasonable and unconstitutional.

(c) Himmat Lal Shah v. Commissioner of Police- The Commissioner of Police was

given the authority to regulate processions and under Rule 7 of the rules, permission of

the Commissioner must be sought before convening any meeting or assembly. It washeld that this rule was unconstitutional as it was violative of the right to peaceful

assembly.

(d) Air India v. Nargesh Mirza- Air India Service Regulation which provided for

termination of service of airhostesses on marriage or on pregnancy or on attainment of

35 years of age were held to be discriminatory under Art. 14.

(e) Muthamma v. Union of India- Service rules made by the central government stating

that any employee of the government was to seek permission from the government

before getting married and that service of women employees shall be terminated on

marriage was held to be discriminatory under Art.s 14 and 15(2).

(f) Deepak Sibbal v. Punjab University- The Bar Council of India passed a rule stating

that a student of law could not pursue another professional course. The same was

struck down as being violative of Art. 14.

(g) Parag Ice and Oil Mills v. Union of India- It was held that even if the parent act

shall be exempted from judicial review if it is placed in the IXth schedule, the rules

made under such act cannot be regarded as being immune from judicial review.

5. Rules violating parent act- This is called substantive ultra vires. It is when the delegated

legislation either goes beyond the purview of delegated legislation or when it is in

conflict with the delegating statute.


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6. In Lachmi Narain v. UP, under the Part C laws act, certain laws prevalent in other states

could be extended to union territories with such modifications as do not change the

underlying policy of such law. In one such case, a schedule was amended and as per

the requirements of the parent act, a 30 days notice was not provided before such

amendment and thus it was held to be void.

7. In Bar Council of India v. Surjit Singh, it was seen that for the purpose of voting at an

election or being a member of the state bar council, qualifications are to be provided by

rule made by the Bar Council of India. If such rule is made by the state bar council, it

shall be invalid even if it is approved later by the Bar Council of India as an approval

cannot validate it and making a rule is different from approving it.

8. In V.Sunder v. Bar Council of India, it was seen that before getting registered, a law

graduate is to practice under a senior advocate. It was held that the Bar Council can

only specify standards and not impart training.

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

applicable retrospectively unless expressly provided under the parent statute. In Union

of India v. Krishnamurthy, it was held that amendment of a previous regulation so as to

make it applicable retrospectively was invalid.

10.Unreasonableness- This may be seen in the case of Kruse v. Johnson, wherein the local

authority made rules prohibiting playing of music or singing in a public area 50 yards

away from a dwelling house. The same was held as being unreasonable.

2.8 Sub-delegation of legislative powers

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

2. Sub-delegation is not allowed generally because it would then dilute the level of

accountability and it can never be ascertained whether an official making a rule

actually has the power to do so.

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

authorises the delegate to sub-delegate.

4. Sub-delegation must not be made in a very wide language. Also, a sub-delegate cannot

act beyond the power granted to him.

5. Sub-delegated legislation must also be published. This has been held in Narendra

Kumar v. Union of India and Maharashtra v. George.

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

mode is to be followed.

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

published.

8. If the statute provides that only rules shall be laid before the legislature, the sub-

delegated rules might escape legislative scrutiny. However, this is also useful as it

reduces the burden of the legislature.


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Unit III- Administrative Adjudication

3.1 Reasons for the growth of administrative adjudication

1. The functions of the state have increased due to the coming in of the concept of a

welfare state. This has led to several situations where there are disputes between

citizens or between citizens and the state and thus a proper mechanism is required to

settle such disputes.

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

3. Court procedure is very time consuming and dilatory, requiring several formalities to be

completed. Administrative adjudication does not follow such procedural requirements

and is thus faster.

4. Following court procedure not only leads to overburdening of the judiciary but due to

the slow and cumbersome process, administrative decisions and policies also remain

blocked.

5. Further, due to the changes in society certain new socio-economic problems have come

up which need to be decided not just based on law and facts but also on the basis of

policy considerations.

6. Judges generally take a very rigid and technical approach applying only the law in its

literal sense to every problem. This is not a practical approach when it comes to

solving new problems which the law may not always have a solution to.

7. Further, judges are generalists applying general principles of the law. Problems of the

society require expertise and specialised knowledge which is possessed by the

administrative authorities.

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

judiciary is independent from the other governmental organs while the administrative

tribunals cannot possibly remain independent. Also, the procedure followed by the

judiciary such as cross examination of witnesses, giving reasoned decisions, etc. may

not always be present in case of administrative adjudication.

3.2 Difference between quasi-judicial and administrative functions

Administrative function Quasi-judicial function

It does not affect the rights of private

parties.

It affects the rights of private individuals

and binds such individuals.

It does not follow any particular procedure

unless provided by the parent statute.

It must necessarily follow the principles of

natural justice as part of its procedure.

It may not be provided for under an statute

as such.

It must necessarily involve a statutory

exercise of power.

There may be delegation of suchfunctions. There can be no delegation of suchfunctions unless expressly provided by


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statute.

3.3 Principles of Natural Justice or fairness

3.3.1 Nemo judex in re sua

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

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

unfair.

3. The rule of bias has 2 connotations- no person can be a judge in his own cause and

justice must not only be done but also be seen to be done.

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

policy bias.

5. Incase of pecuniary bias, even the slightest of pecuniary interests may disqualify a

person from acting as a judge.

6. In Annamalai v. Madras, it was held that a permit granted by the regional transport

authority to one of its members amounts to bias and thus such order needs to be

quashed.

7. Personal bias may come up due to various reasons such as friendship, animosity, etc.

8. In Mineral Development Ltd. v. Bihar, it was seen that the revenue minister cancelled

the petitioners license for a lease on account of personal animosity. Thus, there existed

a bias in this case.

9. In England, the rule which was previously followed was that of likelihood of bias.

This means that it is not bias what the judiciary feels it is but it is what the reasonable

man considers it to be bias.

10. This test was followed by the broader reasonable suspicion test which states that even

when a reasonable man would not construe something as being bias, if there is

reasonable suspicion in the mind of the judiciary that there infact exists such bias, the

person cannot be allowed to judge. This test is mainly the outcome of the fact that

justice must not just be done but it must be seen to be done.

11.This maxim has been followed in India as well. Proof of bias is not required as the

same is very difficult to prove. It is sufficient if there is a reasonable suspicion of bias.

This was also held in AK Kraipak v. Union of India.

12. There may also exist a subject matter or a policy bias which has often been termed as

an official bias. This may be seen especially in case of administrative adjudication

wherein the adjudicator being part of the administration might have a bias towards the

policy.

13.However, it may be very difficult to exactly lay down as to what shall come under such

bias.


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14. One of the factors is that there must be a direct and close connection between the

adjudicating authority and the issue at hand.

15.In Parthasarathi v.Andhra Pradesh, it was held that an officer who has framed charges

cannot act as the inquiry officer in disciplinary proceedings against an officer.

16.In Hari v. Deputy Commissioner of Police, an externment order was passed by the

Deputy Commissioner of Police. This was challenged on the grounds of bias as it was

the police department which had initiated the proceedings and also sat as judge in the

case. However, the SC held that as the proceedings were initiated by an officer above

the rank of inspector, the Commissioner could only pass such order and thus there was

no bias. Hence, it may be seen that there will be no presumption of bias if the case

involved 2 officers of the same department provided the posts are held by 2 different

persons.

17.In Gullapalli Nageshwar Rao v. Andhra Pradesh State Road Transport Corporation, an

authority had the power to regulate transport activities in the state. The General

Manager of this body made rules for nationalisation of transport in the Krishna district

of Andhra Pradesh whereby private transport companies would require a license from

the government. 88 objections were raised and were all heard by the Secretary of the

Transport Department and later a report was given to the Chief Minister. It was held

that the secretary here had departmental bias and thus could not have given a fair

decision.

18.In Kameshwar Prasad v. State of Bihar, as well the court maintained the distinction

between the Chief Minister and the Secretary. It was stated that when the decision is

taken by the Secretary, it amounts to bias as the secretary is part of the department.

Also, it was stated that the principles of natural justice cannot be dragged to any sphere

and there must be a limitation on the same.

19.In Maharashtra State Secondary and Higher Secondary Board v. Paritosh Kumar,

students got less marks in their HSC and thereby asked to take a look at their papers to

ascertain the marking scheme. However, the parent statute provided only for a

revaluation of marks and nothing else. The petitioner claimed that the Boards decision

to refuse to show papers was invalid as they would have a bias in favour of their

teachers who corrected the papers. The SC held that there was no bias and that this rule

must not be dragged unnecessarily without any limitations. It stated that as the Board

merely followed express provisions of the statute, there was no bias as such.

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

(a) Statutory provisions- If the parent statute provides expressly for a fair procedure,

the same must be followed and it need not be substituted by the principles of natural

justice. If however such procedure is ambiguous, the principles of natural justice might

come into play.

(b) Statutory limitations- This is when specific limitations are laid down by the statute

itself to minimise bias in any form.

(c) Contempt of Court- Incase of contempt of court , the rule cannot be used. A judge

or judges of the court might initiate proceedings against the party even if they are the

interested parties in such case.


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(d) Waiver- Where the party knows about the existence of bias but does not object to

the same, he waives his right.

3.3.2 Audi Alteram Partem

1. This literally means hear both sides.

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

right to defence oneself.

3. The first constituent of a fair hearing is the rule of notice. As per this rule, adequate

notice must be served on a person so that he may be informed about the charges against

him and he is able to prepare to defend himself.

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

of hearing, etc.5. It must be properly served on an individual and must give him sufficient time to come

up with his defence.

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

details.

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

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

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

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

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

10. Whether a notice is adequate or not is to be decided by the court. The test is whether the

irregularity in the notice is such that it adversely affects the rights of the person on

whom it is served or not.

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

12. This means that the person against whom charges are levelled must be allowed to

present his case before the adjudicatory authority.

13. A personal or oral hearing is however not required. It is sufficient if the person gets to

present a written memoranda alongwith an explanation to the court.

14. A fair hearing involves the following three essentials-

(a) The adjudicatory authority should receive all relevant material which the individual

wishes to produce.

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

against him.

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


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15.In Dhakeshwari Cotton Mills Ltd. v. CIT, the authorities refused to accept account

books by the appellant as part of evidence. This was held to be violative of the

principles of natural justice.

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

relevant.

17. Also, the adjudicating authority might issue summons for attendance of witnesses. But,

they cannot compel such attendance unless the statute expressly provides for the same.

18.In Brajlal Manilal and Co. v. India, it was held that when the Central Government

considers a report of the state government as being evidence against the party

concerned, the same must be disclosed to such party.

19.In Gurbachan Singh v.Bombay, the appellant was not allowed to cross examine

witnesses or have the witnesses examined before him. But, he was given an opportunity

to be heard. This was held by the SC as being valid as at times witnesses might not like

to depose in the presence of the party.

20.In Jammu and Kashmir v. Bakshi Ghulam Mohd., it was held that the defendant would

be only allowed to cross examine such witnesses as had deposed orally and not others

who had merely given affidavits.

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

India, it was held that incase of preventive detention proceedings, if the government or

the detaining authority is represented through a legal practitioner or a legal adviser, the

person detained shall also have a right to such practitioner or adviser. Herein, the court

broadly interpreted the term adviser.

3.3.3 Reasoned Decision

1. In England, there is a general rule that reasoned decisions are not required while

following principles of natural justice. However, the Franks Committee in its report

stated that even administrative bodies must give reasons for their decisions. This got

statutory recognition under S.12 of the Tribunals and Enquiries Act.

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

3. A reasoned decision is required because of the following-

(a) To reduce arbitrariness as when the authorities would know that they would have to

give reasons for their decision, they would be more careful while considering the case

and not merely rely on policy as such.

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

done.

(c) It gives a firm basis to the case and supports the decision when there is an appeal.

Thus, there is scope for judicial review.

(d) It acts as res judicata.


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4. If a statute in India expressly provides that reasons must be given for any decision

taken, the adjudicating authority must necessarily adhere to the same. However, this

may not always be the case. But, the courts have now substituted it with the principles

of natural justice and constitutional provisions.

5. In the US, due to the existence of the due process doctrine, it is necessary to givereasons for every decision taken. It is a procedural requirement that the executive shall

implement what is just and reasonable.

6. In India, after the case of Maneka Gandhi v. Union of India, the concept of reasoned

decision assumed greater importance. In this case, the term procedure established by

law in Art. 21 of the constitution was deemed to include the due process principle as it

is followed in the US. Thus, greater emphasis was now laid on the principles of natural

justice. (Read ADM Jabalpur case, Indira Gandhi v. Raj Narain and AK Gopalans

case)

7. In Bhagat Raja v. Union of India, it was held that both the authority which hears the

case at the first instance as well as the appellate authority must furnish reasons for their

decision.

8. In Anumati Sadukhan v. AK Chatterjee, it was held that an order empowering an

authority to cancel a licence without giving reasons is invalid.

9. Further, it is not sufficient for the authority to furnish such information which has

already been written down in the statute as reasons. Adequacy of reasons however

differs from case to case.

10. Also, the adjudicatory authority must necessarily maintain a record of the hearing along

with the reasons for future reference.

3.3.4 Institutional Decision

1. Institutional decision is one which is taken by the designated official with the assistance

of his subordinates in the department.

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

3. There are however two main problems associated with it namely, the authorship of the

decision is unknown and secondly it leads to division in the decision making process.

4. In Local Government Board v. Alrdige, the borough council declared a house unfit for

human habitation and asked for its closure. The landlord approached the Local

Government Board to conduct investigations and help him. The Board asked an

inspector to carry out the task who in his final report stated that the house was infact

unfit for habitation. This was challenged by the landlord who stated that he had not

been given a fair hearing as he was not allowed to be heard by the officer who had

actually examined the case. The court held otherwise stating it to an institutional

decision. Herein it is not necessary to identify the officer who had conducted the

enquiry as the decision is deemed to be that of the department. Further, in this case it is

not necessary that the official conducting enquiry must hear the case as well as is seenin case of judicial decisions.


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

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

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

tribunal as it is the decision of the department.

7. In the US, the Administrative Procedure Act has provisions for regulation of

institutional decisions. In UK as well, it is an accepted fact that when a decision is to be

taken by a minister it means that such decision is to be taken by the department as a

whole.

8. In Union of India v. Shripati Rajan, the respondent was dismissed from service by the

collector of customs. As per the law, he appealed to the President but his appeal was

dismissed by the Finance Minister without consideration by the President. The SC held

such decision as being valid as the Finance Minister disposed off the case in accordance

with the rules of business and the President is a mere constitutional head. It was thus an

institutional decision.

9. In Mahavir Prasad Santosh Kumar v. State of UP, it was held that an executive

authority can exercise power through their subordinates.

10. Generally speaking, the report made by the hearing officer which is submitted before

the authority which sits in judgment is not necessary unless it prejudices the case to a

great extent.

3.4 Administrative Appeal

3.5 High Courts superintendence over Tribunals

1. According to Art. 227(1) of the Constitution, the High Court has the right ofsuperintendence over tribunals within its territorial jurisdiction except for those

established under the armed forces.

2. This power is wider than Art. 226 as the HC not only exercises administrative but

judicial control as well on the tribunal. Under Art. 226, a writ of certiorari may be

issued quashing the decision of a tribunal. However, under Art. 227 the same may be

done with something else added to it.

3. Under Art. 226, the tribunal is a necessary party but this is not the case under Art. 227.

The tribunal is a necessary party in case of a writ petition as the court requires a record

of the proceedings of the tribunal to decide on the matter.

4. The SC has stated that the decision of the HC under Art. 227 is binding on the tribunal.

5. The grounds for instituting a suit under both Art.s 226 and 227 are the same such as

arbitrary exercise of power, abdication of powers, exceeding its jurisdiction, etc.

6. However, Art. 227 has a narrower approach as compared to Art. 226 in one matter. Art.

227 can be used to superintend only courts and tribunals while Art. 226 applies to

administrative bodies as well.

7. Art. 227 empowers the court to intervene suo moto while in case of Art. 226, a petition

is required to be filed first.


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8. In Gujarat v. Vakhatsinghji, it was held that the HC may exercise its jurisdiction under

Art. 227 even when the decision of the tribunal is deemed to be final and conclusive.

9. In L.Chandrakumars case and Sampath Kumars case, the same aspect as that in the

above case was discussed. The rule as it stands now is that the HCs jurisdiction cannot

be excluded in any case and the HC can exercise its powers under Art. 227 even whenthe decision of the tribunal is final.

Unit IV- Administrative Discretion

4.1 Administrative Powers

4.2 Formulation and Execution of Policy

1. Administrative Powers have increased particularly after the coming in of the welfare

state.2. Functions dischargeable by the executive are either ministerial or discretionary.

3. Ministerial functions are those which are prescribed in clear and definite terms under

the parent statute and which the delegate must adhere to and wherein he has no option

to exercise his discretion.

4. In Hriday Narain v. ITO, it was seen that under S.35 of the Income Tax Act, the Income

Tax Officer was to rectify any mistakes in assessment and he did not do the same even

after the same was brought to his notice. It was held that when a statute lays down that

a particular procedure shall be followed by an authority in a particular set of

circumstances. It is not what he may do but what he shall do.

5. Discretionary powers on the other hand are wherein the administrative authorities are

given considerable power to choose between different alternatives by applying their

subjective satisfaction.

6. Examples might be given of investigation of facts, making of choices as in the case of

the Land Acquisition Act, etc.

7. Thus, administrative discretion involves the taking of a decision by the administration

not just on the basis of evidence but also in accordance with policy and expediency in

exercise of their discretionary powers.

8. An authority conferred with such powers must exercise the same taking into

consideration the facts and circumstances of each case and by applying their mind to

every case.

9. This was severely criticised by AV Dicey who said that such powers would lead to

arbitrariness and could be used to override the law, which is quite the case today. An

example may be given of S.10 of the Industrial Disputes Act wherein the government

has discretionary powers to decide as to whether a tribunal would be constituted or not.

4.3 Need for Administrative Discretion


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1. The primary reason why administrative discretion comes into play is because of the

need to distinguish each case from the other and avoid applicability of general rules in

all cases.

2. Some of the reasons why there is a need to exercise discretion are as follows-

(a) Recent problems are more complex and thus require a different degree of expertise

which may not necessarily be always taken care of with the help of legislation.

(b) The coming in of new types of problems which requires a new approach to be

taken. Lack of experience to tackle such problems warrants discarding of use of

general rules.

(c) It is not always possible to forsee each and every problem. However, there must

always be some solution available when a problem comes up inspite of there being no

legislation to control the same.

(d) Also every case differs from the other and the use of discretion makes it possible togo in for a case to case application of general rules.

3. Never the less, there are certain disadvantages of this system. The same may be listed as

follows-

(a) The case to case approach may take an individual by surprise who will not know

what to expect considering nothing is laid down as to what should or should not be

done.

(b) It may lead to discrimination against many individuals.

(c) It is a time consuming process and involves multiplicity of cases.

(d) It might lead to arbitrariness on the part of the executive.

4.4 Limitations on exercise of discretion

Judicial Control on exercise of discretion-

1. Judicial control on administrative discretion may be exercised at 2 levels, namely-

(a) At the time the parent statute is made by the legislature, the judiciary may prevent

excessive delegation by challenging the statute as violating the provisions of the

constitution especially Part III.

(b) It may hold some sort of a post decisional review to look into whether the

administrative authorities have exercised their discretion within the ambit of the parent

statute and within constitutional limits.


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2. However, the basic principle of administrative discretion is that administrative

discretion cannot be substituted by judicial discretion. This means that the judiciary

cannot go into the merits of the case and look into whether the opinion of the authority

was right or wrong.

3. In AK Gopalan v. State of Madras, it was held that decision as to whether a person shallbe detained or not under the Preventive Detention Act lies solely within the power of

the executive and the judiciary cannot substitute such decision with its own decision.

4. Another important case is that of Arora v. State of UP, wherein the State Government

acquired a piece of land under the Land Acquisition Act for manufacturing a factory

for public purpose. Arora contended that even he required the land to manufacture a

factory for public purpose. It was thus a case of public purpose v. public purpose.

However, the court held that if the government has satisfied the requirements of public

purpose under the act, they have the discretion to acquire the land.

4.4.1 Malafide exercise of discretion

1. This is a ground on which administrative discretion may be challenged.

2. It means corrupt or ill motive or bad intention, etc.

3. It primarily results out of animosity, personal vengeance, spite, involvement of personal

benefit, etc.

4. Malafide can be of 2 types- malafide in fact and malafide in law.

5. Malafide in fact is when there is some sort of personal animosity of the authoritiesagainst a particular person. It thus involves the facts and circumstances of the case as

here the ill motive is against a particular individual.

6. Herein, the burden of proof lies on the person alleging malafide in fact as presumption

is in favour of the executive.

7. Malafide in law is when the law is made such that it involves some sort of corrupt

intention on the part of the executive in order to benefit itself or otherwise.

8. In Pratap Singh v. State of Punjab, a civil surgeon was suspended on the grounds of

taking bribe. It was later found out that there was malafide involved in taking such

decision as the Chief Minister had some personal animosity with the surgeon.

9. In Rowjee v. Andhra Pradesh, the state transport corporation had framed a scheme for

nationalisation of certain transport routes on the directions of the Chief Minister. It was

later discovered that such decision was taken in order to nationalise only such routes

which were used by private transport operators who were the Chief Ministers political

opponents. Thus, malafide was involved.

10.In Shivaji Rao Patil v. Mahesh Madhav, it was alleged that there had been tampering of

mark sheets of the Chief Ministers daughter and the same was held invalid due to

malafide.

4.4.3 Irrelevant Consideration


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1. This means that the executive has exercised its powers taking into consideration such

factors as are not relevant to the purposes of the statute.

2. It may distinguished from malafide exercise of power in the sense that it does not

involve any ill will or corrupt motive but an honest mistake on the part of the

administration.

3. In Ram Manohar Lohia v. State of Bihar, a person was detained under the Defence of

India rules in order to prevent him from acting in a manner prejudicial to maintenance

of law and order. However, the rules provided for detention only in case of subversion

of public order. This was distinguished from the maintenance of law and order and the

detention order was held invalid due to irrelevant considerations.

4. In Hukum Chand v. Union of India, the divisional engineer was given the power to

disconnect telephone lines on the occurrence of any public emergency. In one such

case, he disconnected the telephone lines as they were being used for illegal purposes.

This action was held to be invalid due to irrelevant considerations.

5. In Madhya Pradesh v. Ram Shankar Raghuvansh, a teacher was to be employed in

government service after checking his antecedents and medical fitness. One such

teacher was refused employment due to his political views (he was involved in

activities of the RSS and Jan Sangh). This was held to be invalid on the grounds of

irrelevant considerations.

6. In Barium Chemicals Ltd. v. Company Law Board, the Company Law Board ordered

an investigation into the activities of a company due to delay in carrying out a

particular project and financial losses. This was held to be invalid as the Board could

investigate only in case of managerial fraud.

Other factors based on which administrative discretion may be challenged and judicial

review be conducted-

I Non- Application of Mind

1. When the executive is empowered to exercise its discretion, it must do so taking into

consideration the facts and circumstances of each case.

2. When it does not take into consideration a vital and relevant fact, it amounts to non-

application of mind.

3. Non-application of mind may take place under any of the following categories-

(a) Condition Precedent-

i) Where law requires that power must be exercised only after satisfaction of a

condition, such power will be valid only after fulfilment of the condition.


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ii) In Orient Paper Mills v. Union of India, it was held that when the law stipulates

that action be initiated only after a definite matter of public importance comes

up, such requirement must be satisfied.

(b) Acting Mechanically-

i) This means that an authority cannot use its discretion without taking into

consideration the facts and circumstances of every case.

ii) In Assistant Collector of Estate Duty v. Prayag Das Agarwal, it was held that

when the government has the discretion to accept or reject certain property

offered to it, it cannot merely reject such property without even considering

such request.

(c) Abdication of functions-

i) Wherein the authority which is supposed to exercise its discretion does not do

the same and merely delegates authority to its subordinate, such orders as maybe made by the subordinate are invalid.

ii) In Manikchand v. State, it was seen that wherein nationalisation of certain bus

routes was to be done based on the scheme of the road transport corporation and

the same was merely delegated to the manager of the corporation without any

consideration by the corporation, such order of the manager was invalid.

(d) Acting under dictation-

i) Orders made by an authority are invalid when he does not exercise his

discretion but merely works under the dictation of his superior.

ii) In Punjab v. Suraj Prakash, it was held that the East Punjab Holdings Act does

not entail that the consolidation officer shall follow instructions of the state

government and hence any such instructions of the state government shall be

deemed to be invalid and any order passed in consonance with such instructions

is also invalid.

(e) Imposing fetters on the exercise of discretion-

i) This means that where the executive is required to exercise its discretion as per

certain standards laid down in the parent statute on a case to case basis, the

same authority cannot impose fetters on such discretionary power by merelyframing general rules for exercise of power.

ii) In Gell v. Teja Noora, the Commissioner of Police was required to grant or

reject licenses for land conveyance taking into consideration factors like public

benefit, etc. Instead of considering each case as per its merits, he passed a

general order laying down standards which were to be followed while granting

or rejecting such licenses. This order was held to be invalid.

II Non-compliance with procedural requirements

1. An exercise of discretionary power may be considered bad due to non-compliance with

procedural requirements provided such procedure is considered mandatory by thejudiciary.


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2. In Narayana v. Kerala, it was held that wherein revocation of a license to supply

electricity is to be revoked provided there has been consultation with the state

electricity board, the same is valid only after such consultation.

3. In Naraindas v. Madhya Pradesh, it was held that wherein text books where to be

prescribed for schools only after consultation with the Board of Higher Education, suchrequirement must be satisfied.

4. In Vimal Chand v. Pradhan, it was held that no person can be detained under the

Preventive Detention Act without being gi

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