!

writs (mandamus certiorari quo-warranto)

! separation of power/droit administrative/rule of law/development and growth of
admin law
! natural justice rule of biasness
! doctrine of legitimate expectation
! constitutionality of delegated legislation (grounds of substantive ultra-vires
)
! public accountability
! right to information
! constitutional safeguard of civil servants
? administrative adjudication (administrative tribunal, domestic tribunal)

REASONS FOR GROWTH Administrative Law is the branch of law

which deals with the powers of administrative authorities,
the manner of exercising such powers,
and the remedies available to an aggrieved incase there is a misuse of such powe
rs.
The reasons for the growth of administrative law are as under:
1. Law and order of laissez faire is seen as a negative process.
A negative process deals with rules and limitations to prevent injustice.
Effective justice is, hence, a lengthy process.
However, in a welfare state, a positive process is to be applied.
Administrative authorities provide such functions as a welfare state harbinger a
nd guardian.
2. Judiciary in India is overburdened and a judicial process is a lengthy one.
Thus, administrative authorities aid in the judicial process to make it short an
d effective.
Speedy justice is one of the tenets of a modern democratic society,
and disputes between employer and employees, strikes, lockouts, etc.
are handled by industrial tribunals, labour courts, etc.
and hence administrative authorities provide such framework for quick and effect
ive justice.
3. Legislative process in India is very rigid and technical.
It is impossible to change a law once made until the next legislative session.
Administrative authorities aid in the process of rule-making.
Such authorities can make a rule, put it into practice, and, if it is found defe
ctive, scrap the rule altogether.
This helps in building a progressive and just law.
4. Judicial process in India is also very right and technical.
It is impossible to provide effective justice without looking into rules, eviden
ces and procedures to determine proper justice.
Administrative authorities met out such quick justice by not being bound by legi
slative control,
such as evidence and procedure,
and hence provides practical justice when required.
5. Administrative authorities may met out precautionary rules, such as licensing
, rate-fixing, etc.
to prevent injustice from happening at all.

It is considered better to remove the cause of injustice than remedy such injust
ice
and hence administrative authorities play a vital role in such a process.
For the enforcement of such precautionary rules, administrative authorities may
revoke licence of a wrongdoer,
destroy damaged and harmful materials,
confiscate controversial substances, etc.

SEPARATION OF POWERS There are three government organs in a state, the legislature, executive and jud
iciary.
Each have their own governmental functions.
The legislature enacts the laws,
the executive executes the laws,
and the judiciary interprets the laws.
Such are the functions that if one of them intertwines with one another,
It would lead to ineffective administration of the laws.
Hence if the executive enacts laws and interprets them, or
if the legislature executes laws and interprets them, or
if the judiciary enacts laws and executes them,
it would go against the very fundamentals of a free democracy.
Locke and Montesquieu were the proponents of this theory of separation of powers
,
to prevent a free democratic society from becoming tyrannical.
They propounded that the separation of powers are a must to prevent injustice to
the people of a nation,
and it is the harbinger of peace-keeping and protecting the liberty of the indiv
iduals in a state.
If a man is given the power to enact, execute and adjudicate laws,
it would create an uncertainty amongst the people,
and would not guarantee free and effective liberty to the individuals of the sta
te.
Such man can turn into a tyrant at the blink of an eye,
and destroy the pillars of democracy.
However, it was not without criticism.
President Woodrow Wilson stated that the government is a living organism,
and if the organs of a living organism are removed from one another,
the organism would cease to live.
Separation of powers play an important role in maintaining the checks and balanc
es,
but to completely segregate them would mean that none of the functions of the st
ate would be completed,
as a states government functions when all three organs work in tandem with each o
ther,
not in complete isolation.
Situation in USA In USA, The doctrine of separation of powers are accepted and strictly applied.
Legislative functions are conducted by the Congress,

Executive functions by the President and

Judicial functions by the Supreme Court.
There is a distinct check and balance in place and no organ can step into the sp
heres of the other.
When the American Constitution was first drafted, the functions of the organs we
re rigidly distinct from one another.
However, with the onset of administrative process, the rigours of the doctrine h
as been relaxed.
Thus, the President performs certain legislative functions such as veto, sending
messages to Congress, etc.
The Congress has judicial power of impeachment and acts has delegated legislativ
e powers to various administrative authorities.
The Supreme Court has never objected to any of the encroachments as being uncons
titutional.
Situation in England In UK, there is a doctrine of integration of powers and not separation of powers
.
Although the three organs are vested with the three governmental functions,
there is no non-sharing of powers.
The Lord Chancellor is the chairman of the House of Lords,
the head of the judiciary,
a member of the executive and
often a member of the cabinet.
The judiciary performs legislative functions under the Trust Act,
and set its own rules and procedures in court.
Members of the cabinet are also members of the legislature.
Hence all the three powers are intertwined with each other.
Situation in India In India, the doctrine of separation of powers is a basic structure of the Const
itution.
Legislative functions are conducted by the Parliament,
Executive functions by the President and
Judicial powers with the Supreme Court and it subordinates.
The legislature makes laws subject to the Constitution of India.
The executive functions according to what is specified in the Constitution.
The judiciary has the power of judicial review and can declare any laws passed b
y the legislature as unconstitutional and void.
In the case of Golak Nath v. State of Punjab, it was held that,
The three organs should function within the spheres allotted to them.
In India however, the doctrine of separation of powers is not written in its str
ict sense.
There are no provisions in the Constitution providing the doctrine of separation
of powers in *stricto sensu*
However, the President can issue ordinances, make laws for a State if the state
legislature has been dissolved, has pardoning powers and his legislature powers
are immune from judicial review.
Further, the Supreme Court can administer the subordinate courts and has the pow
er of judicial review.
The Courts can frame their own rules and procedures.
Hence
In the case of Indira Nehru Gandhi v. Raj Narain, it was decided that,
the tenets of the working of a government is such,
that one organ cannot function without the other.
However, the judiciary is the only organ which must be completely separated from

the executive and the legislature,

as it the only mode of interaction between the other organs and the citizens of
the state.
Further, if the judiciary is limited, it would not function properly.
Thus the separation of powers, as propounded by Locke and Montesquieu, strictly
applies to the judiciary.

RULE OF LAW basic principles of english constitution.

accepted by india and usa.
according to dicey, rule of law means1. supremacy of law,
2. equality before law
3. judge-made constitution
1. rule of law means absolute supremacy of law as opposed to existence of arbitr
ariness or discretion.
wherever there is discretion, there is rook for arbitrariness,
and that in a republic is no less than under a monarchy discretionary authority
on part of the government must mean insecurity for legal freedom on part of its
subjects.
the rule of law requires that the government should be subject to law rather tha
n the law subject to the government.
according to the supremacy of law, no man can be arrested,
punished
or be lawfully made to suffer in body or goods
except by due process of law.
2. there must be equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts.
all persons were subject to one and the same law,
and there were no separate tribunals or special courts for officers of the gover
nmental authorities.
any encroachment on the jurisdiction of the courts
and any restrictions of the subjects unimpeded access to them
are bound to jeopardise his rights.
CRITICISM OF DROIT ADMINISTRATIF
there are distinct administrative tribunals
for deciding the cases between the officials of the state and the citizens.
dicey criticised this saying,
exemption of the civil servants from the jurisdiction of ordinary courts of law
and providing them with the special tribunals
was the negation of equality.
such transference of authority saps the foundation of that rule of law
which has been for generations a leading feature of the english constitution.
3. dicey stated that in many countries,
rights such as right to personal liberty, freedom from arrest,
freedom to hold public meetings, etc.
are guaranteed by a written constitution.

in england, it is not so.

those rights are the result of judicial decisions in concrete cases,
which have actually arisen between parties.
thus, the role of courts of law are guarantors of liberty,
and suggested that the rights would be secured more adequately if they were enfo
rceable in the courts of law,
than by mere declaration of those rights in a document.
merits of doctrine 1. supremacy of law recognises a cardinal rule of democracy that
every govt. must be subject to law
and not law subject to govt.
2. equality before law states that all are equal before law,
and there is no distinction by law based on caste, creed, sex, religion, race, e
tc.
3. judicial constitution is important because dicey feared that rights in the co
nstitution,
without enforcement by the judiciary,
would be futile.
demerits of doctrine 1. dicey failed to distinguish between arbitrariness and discretion.
though arbitrariness is inconsistent with the rule of law,
discretion is not so.
no modern welfare state can work effectively without discretion.
2. dicey did not understand droit administratif.
french system controlled abuse of administrative powers better than common law c
ountries.
conseil detat was part of administration, but was actually a court.
further, equality of law was negated for the king in england.
the maxim king can do no wrong was evoked.
hence equality before law was not followed in england strictly.
3. in many countries, a written constitution is just as much effective as a judg
e-made constitution.

DROIT ADMINISTRATIF
It is the name given to the administrative law prevailing in france.
it is a product of separation of powers.
judicial power is kept separate from administrative power.
there is separation between courts and administration.
this system results in the non-interference by the courts in the working of admi
nistrative authorities.
ordinary courts exercise no control over administration, which is supervised by
administrative tribunals.
administrative tribunals are independent bodies of adjudication.
Conseil dtat acts as the highest court of appeal from all administrative tribunals
.
Conseil detat is the bulwark of civil liberties and guardian of administrative moral
ity.

judges of conseil posses a high degree of administrative expertise and so they a

re better able to control the administration, than ordinary courts.
conseil creates seperate jurisdiction for administrative jurisdiction.
Ordinary courts adjudicate ordinary civil law between subject vs. subject.
Administrative courts adjudicate administrative law between subject vs. state.

DOCTRINE OF LEGITIMATE EXPECTATION this doctrine develops the law of judicial review, reasonableness and natural ju
stice.
a person may have a legitimate expectation of being treated in a certain way by
an administrative authority
even though he has no legal right in private law to receive such treatment.
decisions of an administrative authority
adversely affects legal rights of an individual,
and such duty to act in absolute.
such individual may, however having no legal right,
have legitimate expectation to receive benefit or privilege.
in such cases, the court may protect such individuals expectations,
by invoking principles analogous to natural justice and fair play in action.
in attorney general of hong kong v ng yuen shiu,
the applicant was given deportation order without affording an opportunity to be
heard.
court quashed the order of administrative authority and stated,
when a public authority has promised to follow a certain procedure,
it is in the interest of good administration
that it should act fairly and should implement its promise,
so long as the promise does not interfere with its statutory duty.
the promise of a hearing before any decision is taken,
may give rise to a legitimate expectation that a hearing will be granted.
a past practice of consulting before any decision is taken,
may give rise to a legitimate expectation to a consultation before such decision
.
actual enjoyment of benefit may create legitimate expectation that such benefit

will not be removed,

without the individual being given a hearing.
decisions affecting such expectations are subject to judicial review.
legitimate expectation may arise 1. if there is express promise made by a public authority.
2. there is past practice and the claimant can reasonably expect such practice t
o continue.
3. such promise or practice is clear and unambiguous.
LIMITATIONS 1. LE is only procedural, not substantive
Attorney General of South Wales v. Quinn
quinn was magistrate in court of petty sessions
court of petty sessions was replaced by local court.
quinn applied
quinn was not appointed.
quinn said he has LE over position.
court denied.
sad story.
2. LE does not apply to legislative activities
Srinivasa theatre v. govt. of tamil nadu.
under tamil nacu entertainment tax act,
method of taxation was changed.
validity of amendment was challenged by the theatre.
said it was against LE of the theatre.
court reject application of LE.
said a legislation cannot be invalidated based on somebodys offence to LE.
sad story part 2
3. doctrine of LE does not apply if it is contrary to public interest and policy
.
when a case of LEGITIMATE EXPECTATION is made out by the applicant,
the court will consider the prayer of the applicant for GRANT OF RELIEF.
the court may, if such grant of relief does not fulfil the requirement of public
interest,
uphold the decision of the administrative authority.
hence LEGITIMATE EXPECTATION does not always lead to GRANT OF RELIEF,
but necessarily does so, if the expectation and relief is in tandem with public
interest.
..
RELATION of legitimate expectation with judicial review, reasonableness and natu
ral justice (stated by Wade) Any decision resulting in denial of such expectation,
may be challenged in a court of law (judicial review),
provided that the same is found to be unfair, unreasonable (doctrine of reasonab
leness)
or violative of the (principles of natural justice).
administration must be careful not to create a situation adversely affecting inn
ocent persons,
by unexpected change in the riles applied, or in its behaviour,
unless such change is necessitated by public interest.

NATURAL JUSTICE RULE AGAINST BIASNESS

Traditional english law recognises TWO principles of natural justice 1. Nemo debet ease judex in propria cause - no man shall be a judge in his own c
ause. (no biasness)
2. Audi altered parted - hear the other side. (fairness in justice delivered)
NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA
this is the rule against biasness.
it is based on three maxims 1. no man shall be the judge in his own cause.
2. justice should not only be done, but manifestly and undoubtedly be seen to be
done.
3. judges, like caesars wife, should be above suspicion.
the first requirement of natural justice is that the judge should be impartial a
nd neutral.
the judge must be free from bias.
he should be indifferent to both parties before the court of law.
he must have an objective mind.
the object is not merely that the scales be held even,
it is also that they may not appear to be inclined.
this rule applies to all judicial and administrative authorities,
who are required to act judicially or quasi-judicially.
TYPES OF BIAS 1. pecuniary bias
2. personal bias
3. official bias/ subject-matter bias
4. judicial obstinacy/stubbornness
1. it is stated that a pecuniary (related to money) interest, however slight, wi
ll disqualify the judge,
Even though it is not proved that the decision is in any way affected.
there is a presumption that any financial interest, however small, in the matter
of dispute,
disqualifies a person from adjudicating.
Dimes v. grand junction canal
suits ordered with force of law (decreed) by vice-chancellor.
appeals against such orders were filed in court of lord chancellor where vice-ch
ancellor was judge.

appeals were dismissed and decree was upheld in favour of canal company.
vice-chancellor was a substantial shareholder in the canal company.
later,
even though vice-chancellors decisions were not affected by his role as sharehold
er,
the decision was dismissed by the house of lords.
because,
the maxim of no one is to be a judge in his own case is to be held sacred.
such decision, if not quashed, will have an impact on inferior tribunals.
as such, the decision cannot be held valid in law and is in contravention to the
rules of natural of justice.
even the least pecuniary interest disqualifies a judge.
2. A judge being a relative, friend or business associate,
having some personal grudge, enmity or personal rivalry,
is disqualified from adjudication on the grounds of personal bias.
in State of UP vs Mohd. Nooh,
mohd nooh was charge-sheeted for forging a letter.
DSP was appointed to conduct enquiry.
one witness against mohd nooh, turned hostile (became against DSP)
then, DSP became witness in his own case, recorded the evidence by a higher auth
ority and then resumed his role of enquiry officer.
respondent was then found guilty by DSP.
further, all appeals were dismissed.
court held that all principles of natural justice were violated by the DSP.
and the order which proclaimed mohd. to be guilty were quashed.
3. the third type of bias arises when the judge has a general interest in the su
bject-matte of he proceedings.
however, a mere general interest in the general object to the pursued would not
disqualify a judge from deciding the matter.
hence, there must be some direct connection with the litigation.
in Krishna Bus Service Pvt. Ltd. v. State of Haryana,
a notification giving DSP powers to the general manager of Haryana Roadways was
challenged,
on the grounds of official bias.
court held that the General Manager of Haryana Roadways,
who is a rival in business of private operators of motor vehicles in the state,
and is intimately connected with the running of motor vehicles,
cannot be expected to discharge his duties fairly and reasonably,
as because,
there is a possibility that the general manager may be hard (seizure, search, et
c.) on private transport vehicles,
and lenient on state transport vehicles,
plying on the same route.
hence, the court held that the transfer of DSP powers to the general manager was
invalid to the principles of natural justice.
4. judicial obstinacy is a new form of bias.
it is said that if a judgement of a judge is set aside by a superior court,
the judge must submit to that judgment.
he cannot re-write overruled judgement in the same or in collateral proceedings.
the judgment of higher court binds not only to the parties,
but also to the judge who had rendered it.

TEST OF BIASNESS
A pecuniary interest, however small, disqualifies a judge.
other interests, however, do not stand on the same footing.
hence test of biasness is required.
Vaugham Williams stated, a court would have to judge the matter as a reasonable m
an would judge of any matter in the conduct of his own business.
Lord Hewart stated that to answer the question of real likelihood of bias,
depends not upon what actually was done, but upon what might appear to be done.
Nothing is to be done which creates even a suspicion that there has been an impr
oper inference with the course of justice.
Lord Denning stated that the reason is plain.
Jusitce must be rooted in confidence,
and confidence is destroyed when right-minded people go away thinking that the j
udge was biased.
In the case of MANAK LAL (AIR 1957), the supreme court held the test of bianess
in such cases, test is not whether in fact a bias has affected the judgement,
but the test is always whether a litigant could reasonably apprehend that a bias
,
attributable to a member of the tribunal,
might have operated against him in the final decision.

WRITS
Mandamus
we command
it is an order issued by a higher court
to an administrative tribunal, inferior court or a public officer,
requiring it to perform a public duty imposed upon it
by the Constitution or any other law.
Mandamus is a judicial remedy,
which is in the form of an order from the SC or HCs,
to any government, court, corporation or public authority,
to do o to forbear from doing some specific act
which that body is obliged under law to do or refrain from doing,
as the case may be,
and which is in the nature of a public duty and in certain cases, statutory duty
.
object of mandamus is to supply the defect of justice.
a writ of mandamus orders a public authority to perform its duty when it denies
jurisdiction.
conditions 1. the petitioner must have a legal right.
there must be a legally protected and judicially enforceable right.
A person must have a legal right which was denied by a public authority.
such aggrieved person/company thus, has locus standi to petition a writ of manda

mus.
2. the public authority must have a legal duty to be performed.
a legal duty must have been imposed on a public authority by the Constitution or
any other law,
and there be a neglect of performance of such duty,
which must have caused some legal right to be disturbed.
3. the writ must be preceded by a demand of justice (which is, to perform the le
gal duty)
which must have been refused.
if there is no refusal, a writ of mandamus is not maintainable.
4. the application for mandamus must be in good faith,
not for any ulterior motive or oblique purpose.
a petition will also not be maintainable if it is made to wreak personal grievan
ce or harass the respondent.
5. mandamus may be refused if there is an alternative remedy available.
writ of mandamus is the discretion of the courts in such cases.
mandamus may be issued against:
the parliament,
the state legislatures,
courts,
tribunals,
govt. and its officers,
against local authorities (panchayats, municipalities)
universities and other educational institutions,
election authorities
other authorities falling within the definition of state under Article 12.
mandamus does not lie against:
the President,
the Governors,
any inferior or ministerial officers who is bound to obey the orders of his supe
rior.
private individuals or any incorporated body.
Certiorari to certify
it is an order issued by the High Court
to an inferior court
or any authority exercising judicial or quasi-judicial functions
to investigate and decide the legality and validity of the orders passed by it.
the object of the writ is to keep inferior courts and quasi-judicial authorities
within the limits of their jurisdiction
and if they act in excess of their jurisdiction,
their decisions can be quashed by superior courts by issuing this writ.
conditions 1. when an inferior court or tribunal acts without jurisdiction or in excess of
jurisdiction,
or fails to exercise jurisdiction vested in it by law,
a writ of certiorari may be issued.
2. lack of jurisdiction may arise from the jurisdictional fact,

which is the fact of preliminary importance.

every case starts off with a jurisdictional issue of fact.
if no jurisdictional fact exists, then the court or tribunal has no jurisdiction
to act on the case.
in such a circumstance a writ of certiorari may be issued,
if by erroneously presuming jurisdictional fact,
an inferior court or tribunal tries the case.
3. if there is an error apparent on the face of the record,
a writ of certiorari may be maintainable.
the expression error apparent on the face of record means,
that an inferior court or tribunal takes into account an irrelevant consideratio
n or evidence,
or does not take into account relevant consideration or evidence.
4. certiorari may be maintained if there is a violation of natural justice by an
inferior court or tribunal.
writ of certiorari may be initiated by the person(s) affected by the order of an
inferior court or tribunal.
however, in case the question affects the public at large,
anybody may file a petition.
difference is that,
if petition is filed by aggrieved party, court must grant relief as an obligatio
n to justice (ex debito justitiae),
however if petition is filed by anybody for question affecting public at large,
it is the discretion of the court.
certiorari lies against
subordinate courts,
inferior tribunals,
quasi-judicial bodies
and adjudicating authorities.
certiorari cannot be issued against a court or tribunal having NO judicial, quas
i-judicial powers,
private individuals
or incorporated body.
it cannot be issued if an act or ordinance is ultra-vires the constitution.

DIFFERENCE mandamus can be used against administrative authorities, whereas certiorari can
be used against judicial authorities.
mandamus compels, certiorari corrects.
mandamus acts when an authority denies jurisdiction, certiorari acts when courts
and tribunals usurp jurisdiction and exceed it.

Quo Warranto what is your authority, with what warrant

it is a judicial remedy against an occupier or usurper

of an independent substantive public office, franchise or liberty.
if the holder has no authority (or warranty) to hold the office, he may be ouste
d from such post.
this writ also protects the real holder of a public office from being ousted.
the procedure of quo warrant confers jurisdiction and authority
on the judiciary
to control executive action in the matter of making appointments to public offic
es,
against relevant statutory provisions.
quo-warranto is of discretionary nature.
conditions 1. the office in question must be a public office.
2. it must be of substantive (separate or independent) character.
3. it must be statutory
4. holder must be in actual occupation of the office.
1. public office means an office in which duties affect the interest of the publ
ic.
before a writ is petitioned under quo-warranto, it is important for the petition
er to show
that the office was public in nature,
and that the occupation of the office was illegitimate.
the writ will not lie against private bodies or offices.
2. office must be substantive, i.e. independent in nature.
the holder of such office must be independent and not under any superior officia
l.
3. the office must be constituted by some statute.
office must statutory or constitutional.
writ applies to office of PM, governor, advocate general, public prosecutor, etc
.
4. mere claim to an office does not warrant a writ of quo warranto.
the office must be held by the usurper and the powers associated must be in prac
tice.

DELEGATED LEGISLATION: SUBSTANTIVE ULTRA VIRES

Delegated legislation is a legislation (law) made by a body or person
other than the sovereign in Parliament
by virtue of powers conferred by such sovereign
under a statute.
Simply put,

the executive, apart from performing pure administrative functions,

also performs many judicial and legislative functions.
such judicial and legislative functions so performed and created,
are known as delegated legislations.
Various administrative authorities construct delegated legislations to ease admini
stration.
as such control is necessary to keep arbitrary laws and exercise of such laws in
check.
delegated legislations may be controlled under three heads:
1. judicial
2. legislative
3. other control.
judicial control, in the form of judicial review, is accepted in courts under 2
tests:
1. substantive ultra-vires
2. procedural ultra-vires
ultra-vires means beyond the power/authority or lack of power.
doctrine of ultra-vires is that an act has been done in excess of power possesse
d by a person.
Substantive ultra-vires means that a delegated legislation (act)
goes beyond the authority conferred on it by a parent statute,
or by the Constitution.
All decisions and laws made by the delegate
must be in accordance with the Constitution, parent Act AND other laws of the la
nd.
any inconsistency is such delegation leads to substantive ultra-vires.
GROUNDS FOR SUBSTANTIVE ULTRA-VIRES
delegated legislation may be held invalid on the ground of substantive ultra-vir
es under the following,
WHEN:
1. parent act is unconstitutional.
2. parent act delegates essential legislative functions.
3. delegated legislation is unconstitutional.
4. delegated legislation is inconsistent with parent act.
5. delegated legislation is inconsistent with general law.
6. delegated legislation is arbitrary, malafide or unreasonable.
7. delegated legislation excludes judicial review
8. delegated legislation operates retrospectively.
9. delegate further delegates (sub-delegation).
points (in short) 1. parent act unconstitutional
2. parent act essential legislative functions
3.
4.
5.
6.
7.
8.

DL
DL
DL
DL
DL
DL

unconstitutional
inconsistent parent act
inconsistent general laws.
arbitrary, malafide or unreasonable
exempts judicial review
retrospective

9. delegate further delegates (sub delegation)

1. if parent act is, per se, ultra-vires to the constitution,

then necessarily, the delegated legislation is substantively ultra-vires.
in Sarbananda Sonowal v. UOI, 2005, it was held by the Supreme Court,
that if parliament makes a law exclusively for one state,
such law has to satisfy and pass the test of Article 14.
The parent act must have nexus with the constitution,
and if it is not so,
then any delegated legislation is also ultra-vires.
2. it is well-settled principle that essential legislative functions must only b
e performed
by the legislature itself (parliament and state legislatures).
a legislature cannot create, constitute or establish a parallel legislature.
3. a parent act may be constitutional, and a delegated legislation may be in con
sonance with the parent act.
however, a delegated legislation be substantially ultra-vires if it is in contra
vention to the Constitution.
all delegated legislation must be in conformity with the parent act, and must al
so be constitutional.
in DS Nakara v. UOI,
the parent act provided a pension scheme for all government servants (which is c
onstitutional).
however, the delegated legislation provided a higher pension to govt. servants r
etiring before a specific date,
and lower pension to those retiring after the specified date.
such was held to be unconstitutional on part of the delegated legislation.
hence the parent act may be constitutional, but the delegated legislation may no
t.
4. it is accepted principle (everything is accepted principle)
that a delegated authority has strict limitations,
and all functions must be authorised according to the parent act.
if any delegated legislation is passed by the authority,
which is ultra-vires to the parent act,
such delegated legislation stands abrogated.
In TISCO v. Workmen,
statute empowered central govt. to give bonuses to employees.
central govt. further created a quasi-judicial body for the purposes.
cout held that such body is ultra-vires the parent act.
5. a delegated legislation must not only be constitutional, in consonance with t
he parent act,
but also be in tandem with other laws enacted by the legislature.
if left to abrogate general laws, the entire structure of legislations would fal
l,
and would lead to confusion and arbitrariness as to which law to follow.
6. when a delegated legislation,
excludes persons of certain age,
makes rules to exempt court orders,
giving benefits to certain persons affected by such legislation,
etc.
it is held to be arbitrary, malafide or unreasonable.
such delegated legislations are ultra-vires.
7. the power of judicial review of courts over delegated legislations,
and decisions taken by such legislations,
cannot be ousted in any circumstance.

no administrative delegated legislation may be kept at bay from judicial review

and scrutiny,
as it would empower such legislations to have unprecedented and uncontrolled pow
er.
it would further negate the statutory right to appeal guaranteed by the Constitu
tion.
8. it is a well-accepted principle that any delegated legislation,
which acts retrospectively (applies to older cases)
stands ultra-vires and abrogated.
administrative officials cannot be given the power to legislate retrospectively,
however the legislature can do so, in tandem with the constitution,
UNLESS EXPRESSLY STATED IN THE PARENT ACT.
9. it is well-accepted principles that a delegate cannot further delegate.
This is to curb the onset of an excess of delegated legislations and sub-adminis
trative authorities.
If this principle is not held ultra-vires, then certain duties of the delegate,
would be evaded,
by delegating such duties to other authorities.
a game of passing the parcel would ensue,
and cause commotion and confusion in the general populace.
Further, it would necessarily destroy the very objective of the parent statute t
o delegate.

PUBLIC ACCOUNTABILITY
all three organs are subject to public accountability.
it is settled law that all discretionary powers are subject to the larger public
interest and should not be unfair, unreasonable or arbitrary.
public authority offices, big or small, are trusted bodies.
every public officer has a duty to the people of the country.
hence, when a public officer abuses his office, either by action or omission,
and the consequence of that to even a single individual,
an action may be maintained against such public officer.
further, all powers possessed by a public officer is for the good of the public.
in case of defective construction of houses by statutory authorities,
a complaint made by consumer regarding use of substandard material,
and delay in delivering possession of house,
was held maintainable and the instrumentality of the state was held liable to pa
y compensation to the consumer.
In A.G. Hong Kong v. Reid.,
Reid who was a Crown prosecutor took bribes to suppress certain criminal cases
and purchased properties with the bribe money.
The Hong Kong Government claimed these properties

stating that the owners thereof are constructive trustees of the Crown.
The Court upheld the claim and observed
that a gift taken by a public officer as an incentive for breach constituted a b
ribe.
The fiduciary owes the money to the person to whom he owed that duty
and he hold the bribe acquired therewith on constructive trust for that person.
This case also applies to situations where fiduciary relationship does not exist
.
In SS Dhanoa v. UOI, the court indicated that,
when important functions are to be performed,
and a body is armed with uncontrolled powers,
it is both necessary and desirable that such powers
are not exercised by one individual however all wise he may be.
when vast powers are exercised by an administrative institution
which is accountable to none,
it is politic to entrust its affairs
to more than one hands.
In Common Cause (petrol pumps matter) v. UOI,
petroleum minister made allotment of petrol pumps
in favour of his kith and kin.
quashing the action, the supreme court directed the minister
to pay 50 lakh rupees to public exchequer
and 50,000 rupees towards cost.
In Shivsagar Tiwari v. UOI, housing minister allotted shops/stalls out of quota
to her kith and kin.
supreme court set aside the allotment and directed the minister
to pay 60 lakh rupees to public exchequer.
The Central Bureau of Investigation (CBI) is the most important body which enfor
ces accountability.
It was earlier under the Executive,
but was later separated from it by the Supreme Court.
CBI does not need prior approval of the Government to investigate corruption cas
es.

RIGHT TO INFORMATION (related to Public Accountability)

In 1975,
in the case of Raj Narain v. State of Uttar Pradesh,
the Supreme Court of India observed that
in a government like ours, where all the agents of the public must be responsibl
e for their conduct,
there can be but few secrets.
The people of the country have a RIGHT TO KNOW any public act.
In 1997,
in the case of Dinesh Trivedi v. UOI,
a political activist was killed.
one of the arrested persons was a known politician.
a committee was set up to enquire into the activities of mafia and criminal ties
in politics.
however, the report of the committee was not disclosed to the public.
the supreme ordered the public viewing of the report.

RTI act passed in 2005,

essentially tries to usher in a new administrative culture
and further strengthen democracy.
It has been hailed by the Chief Information Commissioner of India
as outstanding legislation in the world
and unprecedented going by the public response.
RTI act is an important tool in the hands of people
and it is bound to change the mindset of the administrative machinery.
RTI act is landmark legislation and covers all central, state and local governme
ntal bodies
and in addition to the executive.
it also applies to the judiciary and the legislature.
The term information under the act covers right to inspect work, documents and r
ecords
held by the government
and allows for the extraction of certified samples for verification.
The act requires all public authorities to maintain records
and furnish requisite information related to their work
to people seeking such information.
thus, the present trend is towards transparency and openness,
which are absolutely necessary for public accountability
in the administration of public authorities.

CONSTITUTIONAL SAFEGUARDS OF CIVIL SERVANTS

In India, the govt. is the largest provider of jobs to the people.
Civil servants hold office on the doctrine of pleasure (Article 310)
it is based on public policy.
it states that,
every person
who is a member of
a defence service
or a civil service of the Union
or an all India Service
holds office during the pleasure of the President,
and every person
who is a member of
a civil service of a State
or holds any civil post under a State
holds office during the pleasure of the Governor of the State.
The general principle relating to civil servants has been laid down under Articl

e 310,
to the effect that government servants hold office,
during the pleasure of the government.
However, Article 311 imposes 2 restrictions on the prerogative of dismissal at p
leasure in the form of safeguards.
1. persons employed in civil capacities under the Union or State
shall not be dismissed or removed by any authority subordinate to his appointing
authority.
2. No such person shall be dismissed or removed or reduced in rank,
except after an inquiry has taken place,
and a reasonable opportunity has been provided to him for defence.
Under Article 311,
only members of civil service of the Union or State,
or members of an All India Service,
are entitled to such safeguards.
both permanent and temporary civil servants are granted the safeguards.
Hence, military personnels and all civil servants associated with the military,
cannot claim such safeguards.