Dear Reader, Please note that I have not written down notes for 3.

4 democratic, republic and must provide justice, equality, rights,

(Administrative Appeal), 4.4.2 (Constitutional imperatives and use of freedom, etc. to all. 9. Other examples are that given in Part IV
discretionary authority), 4.4.4 (Non-exercise of discretionary wherein it has been provided that there shall be no concentration
power), 5.3 (Exclusion of judicial review), 5.4 (Suits against of wealth towards the common detriment. There shall be equitable
administration), 6.2.6 (Doctrine of legitimate expectation). For 3.4, distribution of wealth. 10. Also, right to free and compulsory
you just need to know the meaning of administrative appeal, for education for children upto 14 years is now a fundamental right.
4.4.2 you just have to show how administrative discretion must be 11. There is also provision of equal pay for equal work under Part
used to carry out constitutional directions, for 4.4.4 just write how IV. 12. Further, various social legislations such as the Factories Act,
discretion may be questioned on the ground of non-exercise of such Minimum Wages Act, etc. have come into the picture.
power. With respect to 5.3, you need write down that HC’s power of
judicial review cannot be excluded and mention L. Chandra Kumar’s 1.2 Increase of functions of modern state 1. The growth of
case, for 5.4 you need to write down how the government and other administrative law has primarily been due to the growth of
authorities can be brought under the writ jurisdiction of the courts. administrative powers and functions which is again the result of
Please remember that the writs to be used here are Habeas Corpus, increased state functions.
Mandamus and Quo Warranto. Certiorari and Prohibition deal with 2. This has also been also attributed to the fact that the
judicial authorities primarily. As far as 6.2.6, the doctrine of judicial international situation in the 20th
expectation means that when the executive declares that it shall do
a particular thing, there is a legitimate expectation on the part of thecentury was such that at times quick decisions required to be taken
public that the government shall do the same with reasonable care by the executive in times of emergency and thus administrative
and caution. Also, my notes under the RTI Act are incomplete. For powers increased. 3. The state today has taken up functions which
this part you need to know about the information which may be were earlier carried out by the private sector. It provides for
disseminated as such, authorities and basic procedure under the act. transport, communication, energy, housing, banking, education,
Also, as regards the functions of ombudsman, just mention general trade and commerce, etc. 4. The functions of the state today may
functions and nothing more. Further, the important chapters for the be put into 5 broad categories, namely- as a protector, provider,
examination are Chapter 1 (2 questions), 2( 2 questions), 4 (1 entrepreneur, economic controller and arbiter. 5. A state consists
question), 1 or 2 short notes with respect to the writs and 1 question of 3 organs- the legislature, executive and the judiciary. Out of the
with respect to the RTI Act. The source of my notes is MP Jain and three, the executive is the most powerful these days. 6. Not only
class notes. The reading material consists of a total of 59 pages. does the executive have powers of administration, it also has
Kindly let me know incase any doubt arises. Regards Ankita powers of legislation in the form of delegated legislation. Alongwith
that it has the power to conduct enquiries and investigations and
ADMINISTRATIVE LAW Unit I- Evolution, Nature and Scope of give binding decisions as in case of administrative adjudication.
Administrative Law 1.1 Change in the concept of state-from laissez Sometimes it may even exercise its discretion. 7. However, some
faire to Social Welfare state sort of check must be exercised on such powers and the same is
1. Administrative law is recognised as the most outstanding legal done with the help of administrative law. Administrative law helps
development of the 20th in balancing public power and personal rights. 8. If exercised
properly, vast administrative powers could lead to a well
century. functioning welfare state and if not exercised properly it would lead
2. The 19th century was characterised by the welfare state wherein to despotism. 9. Administrative law provides several limitations on
there was minimum executive power in the form of rule of law, separation of powers,
principles of natural justice, judicial and parliamentary controls,
government control, free enterprise, contractual freedom, etc. administrative appeals, ombudsman, etc.
Individualistic theories flourished in this period. 3. The state played
a negative role. It was primarily a police state which helped in 1.3 Definition and Scope of Administrative Law
maintenance of law and order, protecting the nation from external 1. According to KC Davis, ‘administrative law is the law concerning
aggression, dispensing justice to its citizens and collecting taxes for the powers and
financing such activities.
4. However, in the 20th century, the evils of this system were procedures of the administrative agencies including especially the
realised. Due to contractual law governing judicial review of administrative action.’ This explains
the American approach to the subject. 2. As per Davis, an
freedom and freedom of enterprise, there was unequal distribution administrative agency is a governmental body other than a court or
of wealth. This led to a legislature which affects the rights of private parties through
adjudication and rule making. 3. However, this definition cannot be
several socialist movements specially ones in which the grievances accepted in totality as even though it emphasises on the procedure
of labourers was voiced. 5. Thus, a need was felt that the state shall followed by administrative authorities, it does not talk about
be more than a police state. It shall help in alleviating the poor, certain other functions of the executive which are non-adjudicatory
regulating individual enterprise and most importantly bringing in nature and do not at the same time fall within the scope of
about social justice. This led to the establishment of the social legislative or quasi-judicial function. Also, it lays too much emphasis
welfare state. 6. This may be seen even in case of India. Before on judicial control and does not mention about other means of
independence, India was essentially a police state as the British control such as parliamentary control, etc.
were more interested in furthering their own interests rather than 4. The British approach has been provided in the definition given by
working for the welfare of the people. 7. However, the concept of AV Dicey. He
social welfare was taken up immediately after independence
especially after the adoption of the constitution. defines administrative law as ‘denoting that portion of a nation’s
8. The preamble to the constitution states that India shall be a legal system which lays down the legal status and liabilities of state
socialist, secular, 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. Dicey’s definition
may be criticised on the ground that it is a very restrictive definition
1.4 Separation of Powers
as it emphasises only on the aspect of control over public officials. 1. The doctrine of separation of powers was given by French jurist
Further, it only talks of state officials and ignores others like public
and philosopher Montesquieu. 2. This doctrine has 3 meanings,
corporations, etc. It excludes several other functions and powers of namely(a) The same person cannot be a member of more than one
public authorities. organ of the government. (b) One organ of the government cannot
6. The modern British approach can be seen in the definition given control or interfere with the functions of the other. (c) One organ
by Sir Ivor Jennings of the government cannot perform the functions of another. 3. This
doctrine was theoretically very sound but posed certain practical
who states that ‘administrative law is the law of the administration. problems such as(a) Its historical basis which describes separation
It determines the organisation, powers and duties of the of powers as thriving in England is faulty. (b) It is based on the
administrative authorities.’ assumption that all 3organs of the government have completely
7. The above definition is the most widely accepted definition of distinct powers. This is wrong as any one organ of the government
administrative law. performs atleast some of the functions of the other two. (c) Also,
complete separation is neither practical nor desirable. If the
However, it has been criticised on the ground that it doesn’t legislature were only to legislate, it could not punish anyone for its
differentiate between administrative law and constitutional law. contempt. (d) Modern state is a welfare state characterised by
Also, it is too broad a definition. Further, it does not provide for complex socio-economic problems and the same cannot be solved
remedies available to an aggrieved person when his rights are with complete separation. (e) The primary aim of this doctrine was
affected by administrative action. to ensure greater freedom for the people and strict separation may
8. According to Wade, ‘administrative law is the law relating to the not necessarily ensure the same. 4. This doctrine is used more in
control of the form of a system of checks and balances these days wherein
every organ of the government performs some functions of the
governmental power. The primary object of administrative law is to other 2 organs, thereby exercising a check on arbitrary use of
keep powers of the government within their legal bounds so as to power. 5. This doctrine may be unreasonable and impractical but it
protect the citizens against their abuse.’ has helped in building a system of checks and balances.
9. According to Jain and Jain, ‘Administrative law is deals with the 6. This doctrine has been used in a strict sense in the US wherein
structure, powers and legislative powers rest

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 executive
could 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 followsCONSTITUTIONAL LAW It deals with the organs
and functions of the state at rest. It deals with the structure of the
various organs of the state and regulates their relation with each
other and with individuals. ADMINISTRATIVE LAW It deals with the
organs and such functions in motion. 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.
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.
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

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.
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 except in accordance with procedure established by law. This brings
manner in the ordinary courts of law. It also means that in the principles of natural justice especially after the Maneka
administrative discretion leads to arbitrariness and thus the same Gandhi case. (e) Art. 13 provides that all rules, ordinances, by-laws,
should be avoided. The law is supreme and even the administration orders, etc. would be regarded as ‘law’ and could thus be subjected
is under the law. to judicial review. (f) The Constitution is supreme and all three
6. Equality before law- This means that every citizen must be organs of the government are below the constitution. (g) In India
subject to one and the same 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
body of law which is the ordinary law of the land administered by and its officials are liable in torts and contracts and if any wrong is
the ordinary courts of the land. Dicey criticised the principle of committed by an employee of the state, the state may be made
Droit Administratiff as in the French legal system which provided liable for such act.
for separate tribunals for settlement of disputes between the
government and individuals. He saw this as a negation of the 15. However, in several areas, there exists a great deal of executive
principle of the rule of law as it took away the jurisdiction of the interference. This is
courts and subject government officials to a law different from that
which the general public was subjected to. Also, it allowed the primarily due to excessive delegation of powers by the legislature
administration to adjudicate upon matters which was primarily a and the judiciary to the executive. Also, the executive has been
function of the judiciary. given wide discretionary powers. Further, it is not just the executive
7. Predominance of legal spirit- As per Dicey it is the courts which but even the legislature which by passing demonic acts such as the
enforce rights of Prevent Detention Act or the Maintenance of Internal Security Act
encroaches upon the rights of the people.
individuals while a written constitution merely declares such rights. 16. In Chief Commissioner, Punjab v. Om Prakash, it was held that
Thus, the constitution is not the source but only a consequence of the rule of law is a
legal rights. It was emphasised that in order for rights to be
secured, enforcement by courts was required rather than a mere characteristic feature of the constitution by which the judiciary may
declaration whereby such rights could easily be trampled upon. He question any administrative action on the ground of legality
used the example of the various Habeas Corpus Acts which actually especially when there is a violation of fundamental rights.
went ahead to talk of the enforcement of rights rather than 17. In ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), the
defining them. 8. One of the merits of Dicey’s theory was that it freedoms under Art.
helped exercise a check on executive powers and kept
administrative authorities within their limits. It became a 19 were suspended and enforceability of Art.s 14, 21 and 22 was
touchstone to judge administrative acts. 9. However, even during suspended during emergency. Several persons were detained and
Dicey’s time in 1885 there were several acts which conferred wide they approached the courts by filing writ petitions asking the courts
discretionary powers on the executive without allowing any sort of to issue writs of habeas corpus. The majority held in this case that
judicial review, thereby contravening this doctrine. 10.One of the Art. 21 of the Constitution is the rule of law as far as the Indian
major drawbacks of this theory lies in the fact that discretionary constitution is considered and as the enforceability of the same is
powers are regarded as being arbitrary and in a modern welfare suspended, it cannot be enforced. This was an erroneous judgment
state, administrative discretion is indispensible. and J. Khanna in his dissenting judgment stated that the rule of law
is the antithesis of arbitrariness. The right to life and personal
11. Another drawback is a presumption made by Dicey about the liberty as enshrined in Art. 21 is inherent in all human beings and
judiciary being the thus no person may be deprived of his life and personal liberty
even by state action of suspending such right
solution to all suits. His mistrust over the system of Droit
Administratiff in France was wrong as this system exercised checks Unit II- Legislative Powers of Administration 1. Delegated legislation
in a much better manner than the judiciary. The Counseil d’ Etat essentially means the bulk of legislation promulgated by the
which exercised judicial control over the administration was infact Executive. 2. This term is used in two senses. It is either when the
a part of the administration itself while being a court in reality. subordinate agency exercises power as conferred on it by the
12.Dicey’s rule of law however has been identified in democracies legislature or when such subordinate agency makes subsidiary rules
across the world with rights of the people. The International in accordance with such power conferred on it. 3. In the first sense,
Commission of Jurists in their Delhi Declaration, 1959 accepted the it refers to subordinate legislation wherein the executive makes
idea of rule of law as the modern form of law of nature. 13.Though laws within the limits prescribed by the parent act as it is
Dicey’s original rule of law cannot be accepted in totality, the subordinate to such legislation.
modern rule of law as given by Davis has the following 7 4. In the second sense, it refers to all rules, regulations (which are
connotations(a) Law and order (b) Fixed rules (c) Due process or essentially made by
fairness (d) Elimination of discretion (e) Principles of natural justice
(f) Preference to ordinary courts over administrative tribunals (g) corporations), by-laws, etc. framed by the executive. An example
Judicial review of administrative actions may be given of the Essential Commodities Act wherein the list of
14. Rule of law is a part of the basic structure of the Indian essential commodities given in the statute are not exhaustive and
constitution. A few examples the executive may add to it as and when it feels necessary. 5.
Delegated legislation may be distinguished from administrative
of where it may be seen in the constitution are as follows(a) The action on the following grounds(a) Publication- Usually legislative
preamble talks about justice, liberty and equality. (b) There is acts or orders must be published in the official gazette for the
provision for judicial review by the SC and the HC s for the purpose of notification. However, administrative orders generally
enforcement of fundamental rights. (c) If there is any abuse of need not be published as they are applied with respect to only a
power by the executive, the same may be challenged on the particular individual or a particular group of individuals.
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
(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 challenge delegated 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 power1. 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.
(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 whatever he 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 mind practical 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 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 by Governor
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 it was 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 Legislation 2.2.1 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 the ground of excessive delegation stating that the
legislature had not laid down any policy or 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 Reorganisation of States Act wherein it has been stated that in
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 considers are necessary for the removal of such difficulty.
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 modifies the parent
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 of Bonus Act under
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 unconstitutional due to excessive delegation.
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 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 Magic Remedies (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
order to remove any difficulty, the President may by order do
anything NOT inconsistent with the provisions of the Act which he
10. The broader clause allows removal of difficulty even if the same
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
S.37(1) empowered the Central Government to make any orders
for removal of any difficulty not inconsistent with the purposes of
the Act and S.37(2) make such orders
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
2.2.4 Power to impose tax 1. Under Art. 265 of the Constitution, no publication be made in a newspaper published in Hindi but the
tax may be levied except when provided under statute. Thus, the municipality published it in an Urdu daily. The court held the same
power to impose tax essentially rests with the legislature. 2. to be valid on the ground that there has been substantial
However, the executive may be asked to specify the rates of tax compliance with the provisions of the statute as the Urdu daily had
available provided the maximum and minimum rates have been a much wider circulation in the area. 11. In England, there is no
provided in the statute itself. 3. The executive may also exempt statutory mention of consultation of interests but never the less
certain persons or commodities from such taxation. the same is followed as a general departmental practice. 12. In the
4. In Orient Weaver Mills v. India, it was held that the provision US, pre-publication is made mandatory under S.553 of the
empowering the Administrative Procedure Act unless the authority feels that the use
of such procedure would be impracticable, unnecessary or contrary
executive from exempting certain excisable goods from duties to public interest.
leviable on such goods does not amount to excessive delegation.
5. Refer to Gwalior Rayon Company case as well. (mentioned 2.4 Publication of Delegated Legislation 1. In England, the Statutory
previously) Instruments Act requires the publication of delegated legislation.
2. In the US, only after the Panama case in 1935 was such need felt.
6. Power to impose taxes or duties may even be extended to Thus, the Federal
municipal bodies taking into consideration the nature of the body
to whom such authority is being delegated. Register Act and the Administrative Procedure Act came into force.
3. In India, publication must be done if provided in the parent act.
2.3 Consultation of affected interest and public participation in rule But, as a matter of practice rules are published in the Gazette of
making India. 4. In 1960, the Central Government commenced the
publication of various orders under the title of ‘statutory rules and
1. Public participation leads to democratization of the process of orders’.
delegated legislation. It 5. In Harla v. Rajasthan, it was held that promulgation or
publication of some sort is
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 required so that people understand what they are required to do or
grievances are heard and suggestions are taken into consideration. not do.
2. It has been on the rise these days due to the involvement of 6. In Maharasthra v. George, it was held that where there is no
several organisations which help in eliciting public opinion and statutory provision for
bringing them before the government. 3. However, in order that
such participation is allowed, a provision with respect to the same publication of rules, it must be published in such media as is
must be made in the parent act. generally adopted to notify all such persons concerned with such
4. In Tulsipur Sugar Company v. Notified Area Committee, Tulsipur, rules.
the plaintiff 7. Publication in the gazette is advantageous as(a) It gives
authenticity to the rules. (b) It creates certainty in the mind of the
challenged an order made by the government which extended the people that the rule exists. (c) The individual may have easy access
limits of the municipal boundaries without making an prior to the rules. 8. Rules should be generally published in one
publication thereby not giving anyone affected a reasonable customary channel and not in several channels depending on the
opportunity to be heard. The court held that the statute did not will of the executive.
provide for any prior publication of such rules and hence the 9. In Bangalore WCS Mills Company v. Bangalore Corporation, it
government is under no obligation to do the same. Also, reasonable was held that a
opportunity of being heard cannot be claimed as it is a legislative
function whereby principles of natural justice need not be followed. resolution not published under the act was still valid due to a
5. As per the General Clauses Act, for the purpose of the term provision in the act which stated that no action existed merely on
‘previous publication’ the draft of proposed rules must be the ground of any defect or irregularity in an act or proceeding
published by the concerned authority in a manner it deems fit. It which does not affect the merits of the case. 10. If there is due
must specify the time and date of such consideration and must publication in the mode specified in the statute or in the usual
keep in mind the objections/suggestions while finalising the rules. mode, it amounts to sufficient notice being given. 11. Delegated
6. One of the major issues concerned with such pre-publication of legislation comes into force on the day it is published and not on
draft rules is that there is no time lag specified which is to be the day it is made. 12. However, if the publication specifies that it
maintained between the publication of draft rules and final shall come into effect on a date after such publication, the same
publication. This may allow the authorities to keep a very small shall be considered.
time gap thereby making the entire process a sham. 7. Also
publication is to be made by the rule making authority in the 2.5 Legislative Control of delegated legislation 2.6 Laying
manner it deems fit and thus too much is dependent on executive procedures and their efficacy 1. As it is the legislature which
discretion. 8. Further, publication of the rules in the gazette is delegates, it can exercise a better check. 2. The first step comes
conclusive proof of the fact that the rules have been duly made. into the picture at the time when the rules are being made.
9. In Lachmi Narain, atleast a 3 months’ notice to give effect to a 3. As per Rule 70 and Rule 65 of the rules of procedure of the Lok
modification to a Sabha and the Rajya

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
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.
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
Essential Supplies 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 was held 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.
completed. Administrative adjudication does not follow such
6. In Lachmi Narain v. UP, under the Part C laws act, certain laws procedural requirements and is thus faster. 4. Following court
prevalent in other states procedure not only leads to overburdening of the judiciary but due
to the slow and cumbersome process, administrative decisions and
could be extended to union territories with such modifications as policies also remain blocked. 5. Further, due to the changes in
do not change the underlying policy of such law. In one such case, a society certain new socio-economic problems have come up which
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 subdelegated rules might escape legislative
scrutiny. However, this is also useful as it reduces the burden of the
legislature.
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
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 It does not affect the rights of private
parties. It does not follow any particular procedure unless provided
by the parent statute. It may not be provided for under an statute
as such. There may be delegation of such functions. Quasi-judicial
function It affects the rights of private individuals and binds such
individuals. It must necessarily follow the principles of natural
justice as part of its procedure. It must necessarily involve a
statutory exercise of power. There can be no delegation of such
functions unless expressly provided by 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 petitioner’s 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.
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 Board’s 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
following exceptions 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.
(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.
15. In Dhakeshwari Cotton Mills Ltd. v. CIT, the authorities refused US. Thus, greater emphasis was now laid on the principles of
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 authority which hears the
cannot produce any amount of evidence unless such evidence is
relevant. 17. Also, the adjudicating authority might issue summons case at the first instance as well as the appellate authority must
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 10. Also, the adjudicatory authority must necessarily maintain a
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.
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 give reasons 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
natural justice. (Read ADM Jabalpur case, Indira Gandhi v. Raj
Narain and AK Gopalan’s case)
7. In Bhagat Raja v. Union of India, it was held that both the
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.
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 seen in case of judicial decisions.
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
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.
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.Chandrakumar’s case and Sampath Kumar’s case, the same
aspect as that in the
above case was discussed. The rule as it stands now is that the HC’s
jurisdiction cannot be excluded in any case and the HC can exercise
its powers under Art. 227 even when the 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

collector of customs. As per the law, he appealed to the President state. 2. Functions dischargeable by the executive are either
but his appeal was dismissed by the Finance Minister without ministerial or discretionary.
consideration by the President. The SC held such decision as being 3. Ministerial functions are those which are prescribed in clear and
valid as the Finance Minister disposed off the case in accordance definite terms under
with the rules of business and the President is a mere constitutional
head. It was thus an institutional decision. the parent statute and which the delegate must adhere to and
9. In Mahavir Prasad Santosh Kumar v. State of UP, it was held that wherein he has no option to exercise his discretion.
an executive 4. In Hriday Narain v. ITO, it was seen that under S.35 of the Income
Tax Act, the Income
authority can exercise power through their subordinates. 10.
Generally speaking, the report made by the hearing officer which is Tax Officer was to rectify any mistakes in assessment and he did
submitted before the authority which sits in judgment is not not do the same even after the same was brought to his notice. It
necessary unless it prejudices the case to a great extent. 3.4 was held that when a statute lays down that a particular procedure
Administrative Appeal 3.5 High Court’s superintendence over shall be followed by an authority in a particular set of
Tribunals circumstances. It is not what he ‘may do’ but what he ‘shall do’. 5.
1. According to Art. 227(1) of the Constitution, the High Court has Discretionary powers on the other hand are wherein the
the right of administrative authorities are given considerable power to choose
between different alternatives by applying their subjective
superintendence over tribunals within its territorial jurisdiction satisfaction. 6. Examples might be given of investigation of facts,
except for those established under the armed forces. making of choices as in the case of the Land Acquisition Act, etc. 7.
2. This power is wider than Art. 226 as the HC not only exercises Thus, administrative discretion involves the taking of a decision by
administrative but the administration not just on the basis of evidence but also in
accordance with policy and expediency in exercise of their
judicial control as well on the tribunal. Under Art. 226, a writ of discretionary powers. 8. An authority conferred with such powers
certiorari may be issued quashing the decision of a tribunal. must exercise the same taking into consideration the facts and
However, under Art. 227 the same may be done with something circumstances of each case and by applying their mind to every
else added to it. case. 9. This was severely criticised by AV Dicey who said that such
3. Under Art. 226, the tribunal is a necessary party but this is not powers would lead to arbitrariness and could be used to override
the case under Art. 227. 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
The tribunal is a necessary party in case of a writ petition as the discretionary powers to decide as to whether a tribunal would be
court requires a record of the proceedings of the tribunal to decide constituted or not.
on the matter.
4. The SC has stated that the decision of the HC under Art. 227 is 4.3 Need for Administrative Discretion
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.
1. The primary reason why administrative discretion comes into proof lies on the person alleging malafide in fact as presumption is
play is because of the need to distinguish each case from the other in favour of the executive. 7. Malafide in law is when the law is
and avoid applicability of general rules in all cases. 2. Some of the made such that it involves some sort of corrupt intention on the
reasons why there is a need to exercise discretion are as follows(a) part of the executive in order to benefit itself or otherwise.
Recent problems are more complex and thus require a different 8. In Pratap Singh v. State of Punjab, a civil surgeon was suspended
degree of expertise which may not necessarily be always taken care on the grounds of
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 taking bribe. It was later found out that there was malafide
experience to tackle such problems warrants discarding of use of involved in taking such decision as the Chief Minister had some
general rules. (c) It is not always possible to forsee each and every personal animosity with the surgeon.
problem. However, there must always be some solution available 9. In Rowjee v. Andhra Pradesh, the state transport corporation had
when a problem comes up inspite of there being no legislation to framed a scheme for
control the same. (d) Also every case differs from the other and the
use of discretion makes it possible to go in for a case to case nationalisation of certain transport routes on the directions of the
application of general rules. Chief Minister. It was later discovered that such decision was taken
in order to nationalise only such routes which were used by private
3. Never the less, there are certain disadvantages of this system. transport operators who were the Chief Minister’s political
The same may be listed as follows(a) The case to case approach opponents. Thus, malafide was involved.
may take an individual by surprise who will not know what to 10. In Shivaji Rao Patil v. Mahesh Madhav, it was alleged that there
expect considering nothing is laid down as to what should or should had been tampering of
not be done. (b) It may lead to discrimination against many
individuals. (c) It is a time consuming process and involves mark sheets of the Chief Minister’s daughter and the same was
multiplicity of cases. (d) It might lead to arbitrariness on the part of held invalid due to malafide. 4.4.3 Irrelevant Consideration
the executive. 1. This means that the executive has exercised its powers taking
into consideration such factors as are not relevant to the purposes
4.4 Limitations on exercise of discretion Judicial Control on exercise of the statute. 2. It may distinguished from malafide exercise of
of discretion- 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.
1. Judicial control on administrative discretion may be exercised at 3. In Ram Manohar Lohia v. State of Bihar, a person was detained
2 levels, namely(a) At the time the parent statute is made by the under the Defence of
legislature, the judiciary may prevent excessive delegation by
challenging the statute as violating the provisions of the India rules in order to prevent him from acting in a manner
constitution especially Part III. (b) It may hold some sort of a post prejudicial to maintenance of law and order. However, the rules
decisional review to look into whether the administrative provided for detention only in case of subversion of public order.
authorities have exercised their discretion within the ambit of the This was distinguished from the maintenance of law and order and
parent statute and within constitutional limits. the detention order was held invalid due to irrelevant
2. However, the basic principle of administrative discretion is that considerations.
administrative discretion cannot be substituted by judicial 4. In Hukum Chand v. Union of India, the divisional engineer was
discretion. This means that the judiciary cannot go into the merits given the power to
of the case and look into whether the opinion of the authority was
right or wrong. disconnect telephone lines on the occurrence of any public
3. In AK Gopalan v. State of Madras, it was held that decision as to emergency. In one such case, he disconnected the telephone lines
whether a person shall as they were being used for illegal purposes. This action was held to
be invalid due to irrelevant considerations.
be detained or not under the Preventive Detention Act lies solely 5. In Madhya Pradesh v. Ram Shankar Raghuvansh, a teacher was
within the power of the executive and the judiciary cannot to be employed in
substitute such decision with its own decision.
4. Another important case is that of Arora v. State of UP, wherein government service after checking his antecedents and medical
the State Government fitness. One such teacher was refused employment due to his
political views (he was involved in activities of the RSS and Jan
acquired a piece of land under the Land Acquisition Act for Sangh). This was held to be invalid on the grounds of irrelevant
manufacturing a factory for public purpose. Arora contended that considerations.
even he required the land to manufacture a factory for public 6. In Barium Chemicals Ltd. v. Company Law Board, the Company
purpose. It was thus a case of public purpose v. public purpose. Law Board ordered
However, the court held that if the government has satisfied the
requirements of public purpose under the act, they have the an investigation into the activities of a company due to delay in
discretion to acquire the land. carrying out a particular project and financial losses. This was held
to be invalid as the Board could investigate only in case of
4.4.1 Malafide exercise of discretion 1. This is a ground on which managerial fraud.
administrative discretion may be challenged. 2. It means corrupt or
ill motive or bad intention, etc. 3. It primarily results out of Other factors based on which administrative discretion may be
animosity, personal vengeance, spite, involvement of personal challenged and judicial review be conducted-
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 I Non- Application of Mind 1. When the executive is empowered to
personal animosity of the authorities against a particular person. It exercise its discretion, it must do so taking into consideration the
thus involves the facts and circumstances of the case as here the ill facts and circumstances of each case. 2. When it does not take into
motive is against a particular individual. 6. Herein, the burden of consideration a vital and relevant fact, it amounts to nonapplication
of mind. 3. Non-application of mind may take place under any of
the following categories- prescribed for schools only after consultation with the Board of
Higher Education, such requirement must be satisfied.
(a) Condition Precedenti) Where law requires that power must be 4. In Vimal Chand v. Pradhan, it was held that no person can be
exercised only after satisfaction of a condition, such power will be detained under the
valid only after fulfilment of the condition.
ii) In Orient Paper Mills v. Union of India, it was held that when the Preventive Detention Act without being given a chance to
law stipulates represent himself. This is a procedural requirement and must
necessarily be complied with.
that action be initiated only after a definite matter of public
importance comes up, such requirement must be satisfied. (b) 4.4.2 Constitutional imperatives and use of discretionary authority
Acting Mechanicallyi) This means that an authority cannot use its 4.4.4 Non-exercise of discretionary power Unit V- Remedies against
discretion without taking into consideration the facts and Administration 5.1 Writs under Art.s 32 and 226 of the Constitution
circumstances of every case. of India- Habeas Corpus, Certiorari, Prohibition, Mandamus and
ii) In Assistant Collector of Estate Duty v. Prayag Das Agarwal, it was Quo Warranto
held that
1. Art. 32(1) of the Constitution guarantees the right to move the
when the government has the discretion to accept or reject certain Supreme Court for
property offered to it, it cannot merely reject such property
without even considering such request. (c) Abdication of functionsi) violation of fundamental rights while Art. 32(2) empowers the SC to
Wherein the authority which is supposed to exercise its discretion issue writs in the nature of habeas corpus, certiorari, prohibition,
does not do the same and merely delegates authority to its mandamus and quo warranto for the same.
subordinate, such orders as may be made by the subordinate are 2. Art. 226 on the other hand empowers the HC s notwithstanding
invalid. anything contained in
ii) In Manikchand v. State, it was seen that wherein nationalisation
of certain bus Art. 32 to issue writs or orders within such territories wherein it
exercises jurisdiction to individuals or authorities including the
routes was to be done based on the scheme of the road transport government for the enforcement of fundamental rights or any
corporation and the same was merely delegated to the manager of other purpose. 3. The concept of writ jurisdiction has been
the corporation without any consideration by the corporation, such borrowed from England however the SC has declared that it shall
order of the manager was invalid. (d) Acting under dictationi) only follow the British system in its broad sense and avoid any
Orders made by an authority are invalid when he does not exercise technicalities as may be there. Nevertheless the system of judicial
his discretion but merely works under the dictation of his superior. review in both India and England is more or less the same. 4. The
ii) In Punjab v. Suraj Prakash, it was held that the East Punjab power of the courts under such jurisdiction is very broad. They may
Holdings Act does not only issue writs but may also give directions or orders or any
other appropriate remedy in order to provide relief. However, the
not entail that the consolidation officer shall follow instructions of court will not reject a case merely on the ground that the
the state government and hence any such instructions of the state appropriate writ has not been prayed for.
government shall be deemed to be invalid and any order passed in 5. Art. 32 being a fundamental right in itself cannot be whittled
consonance with such instructions is also invalid. (e) Imposing down by legislation and
fetters on the exercise of discretioni) This means that where the
executive is required to exercise its discretion as per certain does not get restricted by administrative order even when such
standards laid down in the parent statute on a case to case basis, order is final. 6. It may be filed directly with the SC and the person
the same authority cannot impose fetters on such discretionary need not go through the entire procedure of approaching the lower
power by merely framing general rules for exercise of power. courts, etc.
ii) In Gell v. Teja Noora, the Commissioner of Police was required to 7. In AK Gopalan v. Madras, the SC struck down S.14 of the
grant or preventive detention act

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 the judiciary.
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
which prohibited the person detained from disclosing grounds for
detention as provided to him by the detaining authorities before
the court. This did not really
deprive the detenu the right to move the court under Art. 32 for
issuing a writ of habeas corpus but it rendered the role of the court
somewhat illusory as the court could not examine the grounds of
detention and thus could not determine as to there was any actual
violation of fundamental rights or not.
8. In Prem Chand v. Excise Commissioner, it was held that a security
was not required to
be given before filing a writ petition as it posed a hindrance to the
court’s function of determining whether there is a violation of
fundamental rights or not.
9. However, Art. 32 empowers the court to only go into questions
concerning violation of
fundamental rights. Where there is no violation of fundamental
rights, Art. 32 cannot be invoked. Similarly in Ramjilal v. ITO, it was
held that illegal levying of tax does not violate any fundamental However, if a part of such dispute is outside its territorial
right but is merely contradictory to the provisions of Art. 265. jurisdiction, it may still exercise power under this provision. 20. The
10. In Ujjam Bai v. Uttar Pradesh, it was held that a mere error of five writs may be discussed as follows(a) Habeas Corpusi) It literally
law committed by a means to have the body and is issued primarily to secure the
release of a person who has been unlawfully detained or without
quasi judicial body cannot be challenged under Art. 32. The court any jurisdiction.
can strike down an order passed by such body only when such ii) However, issuance of such a writ largely depends on the statute
power is exercised without jurisdiction or without conforming to or other
statutory provisions or without following the principles of natural
justice, etc. circumstances under which detention has taken place. For example,
11. Executive orders are also open to be challenged under Art. 32 habeas corpus cannot be granted when a person has been detained
and it is immaterial by a competent court even when such detention may appear to be
wholly illegal.
whether there is an error of law or error of jurisdiction involved. 12. iii) The scope of this writ has been extended by the court to include
The error of law here refers to a ‘patent error of law’. inhuman and
13. Art. 226 is broader in its scope than Art. 32. It allows for moving
the HC not just for cruel treatment to prisoners as well. (Sunil Batra v. Delhi
Administration) iv) The aggrieved person or anyone on his behalf
the protection of fundamental rights but also for the protection of might approach the court. When a prima facie case has been
legal rights provided that the error of law complained of is a patent established for the issuance of the writ, the court shall ask the
error of law. detaining authority by issuing a rule nisi, to show cause why the
14. However, the writ jurisdiction of both the SC as well as the HC is writ should not be issued. If the court is then convinced that such
independent of the cause shown is not sufficient, it shall issue the writ.
v) The detaining authority has to meet the grounds on which
other. A person may go straight to the SC to enforce his detention has been
fundamental rights rather than going to the HC. However, he may
also go to the HC first and if his petition is dismissed, go to the SC challenged by the detenu as well as prove that detention was under
on appeal. However, in such case he cannot invoke Art. 32 again the procedure established by law as provided in Art. 21.
due to res judicata. vi) In Kanu Sanyal v. District Magistrate(I), the court held that it is
15. Art. 226 being a constitutional provision, its ambit cannot be not necessary
curtailed by way of
to produce a person during writ proceedings as the objective of the
legislation or administrative order even when such order is writ is to secure freedom for the detenu as soon as possible and
regarded as being final. This is different from the situation in not production before the court. This rule may however be
England wherein the Parliament may curtail the writ jurisdiction of changed by the court in compelling circumstances. (b) Quo
the courts. Warrantoi) It literally means ‘what is your authority’. ii) It is
16. Never the less these constitutional remedies may be restricted generally used by the courts asking the holder of a public office (not
by way of other private office) to show as to why he is entitled to such office. It acts
as a judicial control over administrative action with respect to
constitutional provisions. However, the courts have a general making appointments as well as protects individual rights from
tendency to strictly construe such exclusionary provisions and being violated by a person who has no authority to hold such office.
uphold its power of judicial review inspite of such exclusion. In iii) The writ is with respect to a public office of substantive
India v. JP Mitter, it was seen that Art. 217(3) states that the character. iv) This writ will not be issued if there is an alternate
decision of the President with respect to age of the judge shall be remedy available.
final. In this case, the SC held that such orders made could be v) In PL Lakhanpal v. AN Ray, it was seen that AN Ray who was
struck down if decisions are taken on the basis of collateral appointed the
considerations or without following the principles of natural justice
or are coloured by executive advice or representation or are based CJI by superseding 3 other judges was challenged as the seniority
on no evidence. principle was not applied. The Delhi HC rejected such a petition
17. In Sangram Singh v. Election Commission, it was held that stating that the writ jurisdiction of the court involves technicalities
although Art. 329 bars the and is based on the discretion of the court whether or not to accept
such petition. Further, it was also stated that if an irregularity which
jurisdiction of courts with respect to election disputes, it does not was challenged was cured during the pendency of proceedings, the
bar the courts from dealing with such a dispute once the petition writ need not be issued. In this case after the appointment of
was disposed off by an election tribunal. Justice Ray as CJI, he automatically became the senior most judge
18. In Madhav Rao Scindia v. India, it was held that although Art. thereafter and thus there was no irregularity. Thirdly, the case was
363 bars interference of challenged on the grounds of malafide on the part of the
appointing authority but the court stated that a writ of quo
the courts in matters concerning treaties or agreements between warranto can be issued against the holder of the office and not the
the government of India and rulers of Indian states before appointing authority.
commencement of the constitution, it does not bar the court to vi) In another important judgment of Gokaraju Rangaraju v. Andhra
review an order of the President derecognising such rulers under Pradesh, it was
Art. 32.
19. Art. 226 empowers the HC to exercise jurisdiction within its held that after quashing the appointment of a public officer, such
territorial limits. acts of the officer which were for the benefit of third persons or the
public and not for personal benefit shall remain valid as if they
were passed by officers entitled to such office. (c) Mandamusi) It is
a command issued by the court directing an authority to do its 7. Inspite of modifications in the rule of standing, the general rule
public duty as laid down by the law. ii) It may be issued to any still stands. This has
authority performing any kind of function. iii) Mandamus is used to
enforce a duty which is obligatory under the law and is not merely been stated in Bandhua Mukti Morcha v. India. Exceptions may be
optional or discretionary. iv) A mandamus may also be issued to made to the rule only when the courts exercise their discretion to
compel an authority to carry out the decision of a tribunal. v) A do so and when certain conditions are satisfied. 8. A person has
mandamus may also be issued in case of a non-statutory duty. vi) standing when his personal or individual right has been infringed.
However, generally the courts do not grant such a writ in cases He also has a standing when another person’s rights from whom he
where there is a general duty to be performed such as improving derives a benefit or otherwise have been affected. 9. Also, a person
railway services, etc. vii) The writ cannot be used incase of civil may have standing even when a personal or constitutional right is
liability arising under torts or contracts. not violated but the court is satisfied that he has suffered a genuine
viii) In Jivan Mal Kochar v. India, it was held that the petitioner grievance due to action or inaction on the part of an authority.
could not claim 10. In Gurunanak Society v. State, it was held that even an
unauthorised owner of land
damages under Art. 32 for the humiliation, indignity and loss
suffered by him due to governmental action. ix) In order to issue a may move the court incase he has been removed from such land in
writ of mandamus, it must first be shown by the petitioner that he an unauthorised manner as in Indian law even an unauthorised
has a right to compel the authority to act in a particular manner. x) owner has to be evicted from land by a process authorised by law.
The person asking for issuing the writ must first demand justice 11. In Peermohammed v. DFO Tenmala, it was held that a person
from the concerned authority (and no other authority) and only on had no standing to
rejection of the same can he approach the court. (d) Certiorari and
Prohibition i) These writs are mainly used to prevent excesses on challenge illegal activity or construction going on in an adjoining
the part of public authorities. land unless there is nuisance or trespass or the same affects his
ii) Earlier, it could be used only against judicial or quasi-judicial easement rights.
bodies but now it has been extended to all public authorities 12. In Mallappa Murigeppa Sajjan v. Karnataka, it was held that the
exercising any kind of public function. iii) Both these writs are members of a tribunal
issued for the same purpose and in similar circumstances. The only
difference is with respect to the stage at which they are used. A had the required standing to challenge suspension of the working
writ of certiorari is used to quash an order which has already been of such tribunal as being legally appointed members of the tribunal,
passed as in when a decision has already been rendered. While a their rights were adversely affected by the decision.
writ of prohibition is used when proceedings are going on so as to 13. In MS Jain v. Haryana, it was held that a person whose name
stall such proceedings. iv) The various grounds based on which such was recommended for
writs may be issued are when there exists an error apparent on the
face of the record, incase of any jurisdictional error, an order made appointment could not challenge a decision not to appoint him as
under an invalid law, contravention of the principles of natural he has no legal right to get appointed.
justice, an order made based on no evidence, etc. v) However, a 14. In SP Subba Rao v. PP Veeraraghvaiah, it was seen that under
writ of certiorari cannot be used to disguise an appeal in order to statute there has to be a
discuss the merits of a case already dismissed by a lower authority.
Its main aim is to exercise supervision. minimum distance between a permanent cinema and a temporary
cinema has to be that of 1000m but the government could grant an
5.2 Procedural Aspects-Locus Standi, Laches, Res Judicata, exemption to the temporary cinema owner. The court held that the
Exhaustion of alternate remedies Locus Standi1. The provisions of permanent cinema owner had the right to challenge such an
Art.s 32 and 226 do not provide for any rule on standing as such. exemption in order to protect his interests. 15. When a person
does not at all participate in the proceedings, he has no standing to
This has largely been left on judicial discretion. 2. However, the challenge such proceedings later.
general rule is that only an aggrieved person may move the court to 16. In Vijay Mehra v. Rajasthan, it was held that a member of a
enforce his rights under the abovementioned provisions. This is political party cannot
primarily because remedies are a correlative of rights and only
those persons whose rights are infringed might invoke the court’s compel the government to constitute a commission for enquiring
jurisdiction to get the appropriate remedy. 3. This implies 3 things, into certain floods as it was a matter of executive discretion and
namely(a) Only an aggrieved person may invoke the court’s the petitioner was not affected by such floods.
jurisdiction. (b) If such person belongs to a group or class of 17. In Karpoori Thakur v. Abdul Ghafoor, the court held that a
persons aggrieved by administrative action, in order to file a suit, member of Parliament
he must show that he has suffered special injury and thus needs to
be remedied. (c) If the person challenging is a total stranger to the cannot ask for dissolution of the ministry on the ground of loss of
issue, the court would not normally allow him to continue. 4. confidence in the house as the ministry is collectively responsible to
However, if the above rule were to be followed in a country like the entire Parliament and not just one legislator. Thus, only one of
India where people may not come up to file a case or would due to such members of Parliament does not have a standing.
poverty, ignorance, illiteracy, etc. not be in a position to file a case 18. A different view was taken by the court in Ramana Dayaram
in court, administrative action could simply go unchallenged. Shetty v. International
5. Therefore, the courts have tried to provide a somewhat balance
by liberally interpreting the term ‘aggrieved person’ and in certain Airport Authority wherein it stated that while conferring a benefit,
cases allowing strangers to a cause to file a suit. However, this the executive cannot act arbitrarily, illegally or in a discriminatory
largely depends on the discretion of the court. 6. However there is manner. Thus, the view that the government has sole discretion in
a distinction between standing and justiciability. A person may have granting a benefit is no longer tenable. 19. If a person suffers an
standing to move the court for enforcement of his rights but at the injury by virtue of being a member of an indiscriminate class, he
same time his claim may not be justiciable or enforceable. may file a suit only when he has suffered some sort of special injury
which is over and above the injury suffered by the others. This is to Gujarat legislature brought a case before the HC asking for
reduce the number of cases that might be brought before the reconsideration of payment of royalty by ONGC to the state
courts in such situations. government in order to assert the claim of the state government
20. In Milap Ram v. Jammu and Kashmir, it was held that any vis-a-vis the Union Government. This was rejected by the HC on the
member of a state might file ground that the matter involved here was that of high policy and
individuals cannot be allowed to take over governmental function.
a petition challenging the grant of permanent residence of the Further, the matter involved a question under Art. 131 (Centre-
state to a particular person as the right of every such person is state dispute) which could only be resolved by the SC.
affected by such grant. 21. If a person’s legal right has been 34. In People’s Union for Democratic Rights v. India, it was held that
substantially affected, he will have a standing. What shall be the union had the
considered as being substantial or remote will depend on the facts
and circumstances of every case. standing to file a case on behalf of construction workers whose
22. A determinate class of persons organised into a group or rights were being infringed by contractors who had hired them for
association also have such worker by contravening several laws.
35. A similar case is that of Sanjit Roy v. Rajasthan, wherein it was
standing. In Warrangal Chamber of Commerce v. Director of held that the petitioner
Marketing, it was held that a registered body corporate had the
standing to file a case on behalf of its members. who was a member of a registered social group could file a case
23. In Fertilizer Corporation Kamgar Union v. India, it was held that bringing to light the gross violations being committed by the state
members of a trade government in contravention of the minimum wages act with
respect to workers engaged in famine work.
union have standing to file a petition. 36. Again in Bandhua Mukti Morcha v. India, the morcha, an
24. Decisions of a municipality may also be challenged. In Ratlam organisation dedicated to the
municipality v.
cause of bonded labourers was decided as having standing to
Vardichand, it was held that the residents of the locality had the challenge inaction by the government in implementing the
locus standi to move the court asking for the municipality to provisions of the Bonded Labour System Act.
construct drain pipes. 37. In DS Nakara v. India, it was held that a registered society which
25. Even members of the municipality have the required standing was a non-political,
to challenge a
non-profit and voluntary organisation had standing to bring a case
governmental order when the rights of the municipality have been with respect to problems of old pensioners.
seriously affected by such governmental action. (SL Kapoor v. 38. With respect to writs of habeas corpus and quo warranto, the
Jagmohan) 26. There has however been a recent development in rule of aggrieved person
the form of Public Interest Litigation which has led to a compromise
in the general rule of locus standi. 27. By this rule, an individual or is not applicable. Laches1. This principle states that if a petitioner
group of individuals might institute a case in court even if they have files his case after undue delay, his petition shall be rejected on the
no locus standi as per the general rule. 28. Such an exception is ground of latches. This rule is applicable even in case of violation of
generally seen in 2 situations, namely(a) When an individual or fundamental rights.
group of individuals institutes a case wherein their rights are only 2. In RS Makashi v. IM Menon, the petition was filed 8 years after
remotely affected or when their rights are affected equally being the alleged
part of the group due to administrative action. (b) When any public
spirited individual or body devoted to such cause brings a cause of infringement of fundamental rights under Art.s 14 and 16 by the
action before the court challenging administrative action which is executive and the same was rejected on the ground of laches.
prejudicial to the interests of the general public or a section 3. However, there is no hard and fast rule prescribed under Art.s 32
thereof. or 226 as to how long
29. This rule is generally allowed because at times the persons
whose rights are affected are not in a position to defend would be considered enough to reject the petition on the ground of
themselves due to illiteracy, ignorance, poverty, etc. or simply laches. This matter is infact left to the discretion of the court as
when public interest at large is at stake. 30. However, such person could be seen in RS Deodhar v. Maharashtra, wherein a case filed
or group of persons filing the case must have sufficient interest in for enforcement of rights even after a period of 10 years was held
the case and must act bonafidely without any considerations such as being valid. However, in certain case even a gap of 6 months
as personal benefit, etc. Also, the court will not allow such petitions could attract dismissal on the ground of laches.
where the affected party itself is disinterested. 31. Also, the courts 4. In Nirmal Khosla v. India, it was held that if the government itself
consider only legal and justiciable issues when it comes to PIL s and is responsible for
granting such PIL s is upto the court’s discretion.
32. A landmark case in this regard is that of SP Gupta v. India, delay in disposal of the case of the petitioner and the same resulted
wherein it was held that in inordinate delay in filing of the petition, the case will not be
dismissed as it would then act to the detriment of the petitioner
lawyers have a locus standi to bring a case before the court which who is not at fault in such a case.
involved appointment of additional judges in courts and frequent 5. Sometimes when the government is one of the parties, a delay
transfers of HC judges as such lawyers are interested in the may be taken into
independence of the judiciary.
33. In Babubhai Jasbhai Patel v. India, it was seen that 2 opposition consideration by the court owing to the involvement of public
members of the interest in such a situation. This was also held in UP v. Bahadur
Singh.
6. The doctrine of laches is generally brought into the picture when dismissed under a writ petition and is again filed under a regular
a delay in filing the petition.

case might adversely affect the interests of the other party or third
parties. Incase there exists no such situation, generally the
provisions of the Limitation Act are taken into consideration. This
has been seen in the case of Madhya Pradesh v. Bhailal Bhai.
7. In the case of Tilokchand, the court held that the question of
laches is one left to the
discretion of the court. Also, it is upto the court’s discretion
whether to follow the provisions of the limitation act or not.
Res Judicata1. The principle of res judicata provides that when
courts of competent jurisdiction give binding decisions, the petition
cannot be moved in the same court on the same cause of action. 2.
This is a principle of private law and is applicable to writ
proceedings as well.
3. Similarly, in Devilal v. ITO, it was held that when a tax assessment
order has been
unsuccessfully challenged in the court, it cannot be challenged
again through another writ petition before the same court. 4. The
reason for this principle is that the party will go on filing petitions
thereby causing harassment to the other party.
5. In Lallubhai Jogibhai v. India, it was held that a habeas corpus
petition could be filed
again if the grounds for granting such writ are different. However,
again in Kavita v. Maharashtra, it was held otherwise. Never the
less the general rule followed is that of the former case. 6. Also,
another rule emerges with respect to withdrawal of cases.
However, it has been observed that incase a case is withdrawn,
there is no res judicata.
7. Also, where a writ petition is dismissed without speaking order,
there is no res judicata
and there may be subsequent petitions filed. This is because on the place of residence of the plaintiff. (c) It must also mention reliefs
absence of grounds it is not possible to understand as to why such claimed by the plaintiff. 3. It can be with respect to any suit such as
petition was dismissed. 8. Further, the HC cannot review its own
decision based on its merits provided no new evidence or matter is provides for no exceptions and hence unless the requirements of
discovered.
9. If the HC dismisses a case on the basis of laches or availability of 5. Also, any suit filed before the period of 2 months shall be
alternate remedies or
Exhaustion of Alternate Remedies1. Generally speaking, the court
would decline to accept a case if there exists an alternate
and more efficacious remedy. However, if there is a violation of
fundamental rights and Art. 32 or 226 is invoked, the court cannot
reject the case on such ground. 2. The petitioner need not prove
that there is no other adequate remedy or that he has exhausted
all possible alternate remedies in such a case.
3. Thus, necessarily under Art. 32 this rule is to be followed.
However, under Art. 226
when the case does not involve a fundamental right, the HC might
ask the petitioner to first exhaust all possible alternate remedies as
was seen in the case of Titaghur Paper Mills Co. Ltd. v. Orissa. 4.
However, whether or not to resort to the same is a matter of
discretion available to the HC. For example if a person has lost a
right to exercise a particular remedy due to no fault of his own, the
HC would not ask him to first exhaust alternative remedies. 5.
Further, an alternate remedy need not be resorted to where it
leads to inordinate delays or is illusory in nature.
6. A HC could issue a writ of certiorari even without exhaustion of
alternate remedy when there is a violation of the principles of
natural justice.
5.3 Exclusion of Judicial Review-Exclusionary clauses 5.4 Suits
against administration 5.5 Notice under S.80, Civil Procedure Code,
1908 1. As per S.80 of the CPC, no suit can be instituted against the
government or any other government official for acts done within
his official capacity within 2 months from the date a notice is
tendered to him with respect to the same. 2. The following
requirements of this section must be necessarily satisfied,
namely(a) There must be identity of the person who issues the
notice with the person who institutes the suit. (b) The notice must
clearly mention charges, name and complete description of the
those with respect to injunctions, contracts, etc. 4. The section
this section are complied with no suit may be instituted.
dismissed. (Bihari

without passing a speaking order, there is no res judicata and the Chaudhary v. Bihar) 6. A suit may be filed under such provision not
case may be filed under Art. 32 before the SC. only for acts already done but for acts which might be committed in
10. The principle of res judicata has been made applicable between the future or acts which are threatened to be committed in the
Art.s 32 and 226 due to future.
7. This provision has been made to allow the government to
the reason that both the SC and HC have more or less similar writ redress the grievances of the
jurisdictions. 11. This may be criticised on the ground that res
judicata applies between courts of the same jurisdiction. Never the plaintiff within the period of 2 months without going in for
less the SC has held that the SC and the HC are on the same footing unnecessary litigation thereby wasting public funds.
with respect to writ jurisdiction. 8. No specific form of notice has been specified. However, in
12. After dismissing a special leave petition, the SC will not accept a Beohar Rajendra Sinha v.
writ petition under
Madhya Pradesh, it was held that the terms of the notice must be
Art. 32 due to res judicata. However, exception may be made when worded in such a manner so as to show on a reasonable reading
the life of a person is at stake. that such notice has complied with all the requirements of S.80.
13. When a special leave petition is dismissed by the SC, the caseFurther, no unimportant irregularity shall be taken into
may not be entertained consideration if the notice otherwise contains a justified claim. 9.
The notice must essentially provide for the nature of the claim so
under Art. 226 before the HC except when the former dismisses the that the government might be in a better position to redress
case without giving speaking order. However, if a special leave grievances.
petition is withdrawn, remedy under Art. 226 would still be 10. This section applies only to such public officials who commit an
available. 14. Res judicata operates even when the case is act or omission in

their official capacity and not otherwise. In Chandrakant v. State, it
was held that the registrar of trusts was a public official acting in his
official capacity while declaring whether a trust was a public trust
or not. It was also stated that while considering cases
under this section, no distinction may be drawn between public
officials acting bonafide and those acting malafide.
11. Another question arose in India v. Chattar Singh, wherein the
plaintiff gave a notice to
the Government under S.80 but did not notify the concerned
officer. The case was dismissed due to lack of notice to the public
official. However, in NS Jayanandan v. State, a similar case was
instituted and it was held that once the Government has been
notified under s.80, the public official concerned need not be
notified. The state in these cases was responsible jointly and thus
the claim could not be defeated merely on the fact that notice was
not served on the concerned person. 12. S.80 does not apply to a
statutory corporation as neither does it fall within the ambit of the
term ‘government’ nor ‘public official’. 13. Also, this section cannot
be used when suits are filed before a tribunal constituted under the
Motor Vehicles Act.
14. This section is for the benefit of the government and thus at
times the government may
also use its discretion to waive the requirement of notice or ignore
minor technical flaws. However, this is rarely the case. In Shanti
Pada v. India, the case was ruled in favour of the plaintiff but was
dismissed on the grounds that the requirements under S.80 were
not specified. The plaintiff thus filed a fresh suit but the
government challenged the same on the grounds of res judicata.
However, the court ruled in favour of the plaintiff.
15. In Nani Amma v. Kerala, the government pleaded that the case
was instituted before
the expiry of the period of 2 months after a period of 5years from
the date of filing the suit. This plea was dismissed on the ground
that even though there was premature filing of the case, 5 years
was more than sufficient to give a notice to the government about
the case against it. 16. The Law Commission has at several times
suggested that the provision of service of 2 months notice under
S.80 be done away with but no action has been taken by the
government with respect to the same.
17. However, certain relaxations have been made due to the
amendment of the CPC.
Earlier, incase there was a matter requiring urgent or immediate
relief to be given, the plaintiff could approach the court by way of a
writ. Now, due to the amendment in such cases where immediate
relief needs to be provided, the plaintiff need not follow the 2
month notice rule and made with the leave of the court seek a
remedy. If it is proved that there was infact no urgency, the plaintiff
shall be asked to file the suit again after following the 2 month
notice requirement and he need not pay court fees again. 18.
Another relaxation made is that there shall be no dismissal if there
is any minor irregularity in the notice provided that the name and
description of the place of residence of the plaintiff has been
specified in such notice so as to help identify the plaintiff and also if
the cause of action and relief has been clearly mentioned in such
notice.
19. The Law Commission in its 100th report however stated that
amendments to the section
do not resolve the situation and S.80 must be repealed.
5.6 Period of Limitation 1. S.82 of the CPC provides that a period for revenue by officers or delegates of the government was regarded
satisfaction of decree be provided in the decree itself when a
decree is passed against the government or any public official. 2. If of malafide intention on the part of the official.
the decree is not satisfied within such period it shall be reported by
the court to the government for its orders. 3. Execution shall not be
issued on such decree unless it remains unsatisfied for a period of 3
months after the date of the decree. 4. Under S.112 of the
Limitation Act, the government enjoys a limitation period of 30
years for all cases filed by it or on its behalf. 5. This has been
criticised by the Law Commission as being derogatory to the
interests of private parties. It has also been stated as being
discriminatory as private parties have been given a much lesser
period of limitation.
Unit VI- Liability for Wrongs (Tortious and Contractual) 6.1
Government Tortious Liability 1. In UK because of the maxim- the
King can do no wrong and due to the principle that the state cannot
be sued in court without its permission, the government could not
be made liable especially for torts committed by its servants. 2.
However, this view was changed with the coming in of the Crown
Proceedings Act under which now even the Crown could be made
liable in torts. 3. In the US, the Federal Tort Claims Act provides for
the tortious liability of the government. It provides that with
respect to fulfilment of its common law duties, the government
could be held liable. However, it could not be held liable incase of
intentional wrongs such as assault, battery, etc. or incase of
statutory wrongs. Thus, the US law is more restrictive than the
English law with respect to tortious liability of the government.
4.In India, Art. 300 of the constitution provides for the same and
states that the
Government of India may be sue or be sued in the same manner as
the Dominion of India and the corresponding provinces or the
corresponding Indian states might have sued or been sued.
5.Thus, reference needs to be taken from the Government of India
Act, 1935 which in
turn relates such liability to the liability of the Secretary of State
under the Government of India Act, 1915. The powers and liabilities
of the Secretary of State are coextensive with that of the East India
Company prior to 1858. Thus, regard must be had of the liability of
the East India Company and its officers in such period.
6.1.1 The Old view
1. As the company was primarily an autonomous body and there
existed no relationship of master and servant between the
company and the crown, the sovereign immunity of the crown
could not be extended to the company.
2. In the landmark judgment of P & O Steam Navigation Company v.
Secretary of State,
it was held that under the Charter of 1833, the company had been
entrusted the power to govern Indian territories under it as a
trustee of the Crown. Thus, even though the sovereign immunity of
the Crown could not be extended to the company, the company
could not be made liable in torts for acts done within the ambit of
its sovereign functions as conferred by the Charter of 1833.
However, if the company or any of its officials commits a tort in
pursuance of any activity which could be carried on by private
individuals as well, it could be made liable.
3. However in Secretary of State v. Hari Bhanji, it was held that
immunity extends to the
company only for ‘acts of the state’ and the distinction between
sovereign and nonsovereign functions as stated in P & O was not
well founded. 4. But, the view in P&O was accepted generally
rather than the one given in Hari Bhanji. Even collection of land
as a sovereign function and could not be challenged on the ground
5. Again in Gurucharan Kaur v. Madras Province, it was held that
incase of illegal

detention of a person by the police, the government could not be

held liable as it falls within the ambit of sovereign functions.
6. However, railways were regarded as an activity which could be
carried on even by

private individuals and thus was not a sovereign function. In

Maharaja Bose v. Governor-General in Council, it was held that
when earth from the plaintiff’s land was removed by a government
official to put the same on a railway track, the government was
liable in damages for conversion to the plaintiff.
7. If the state is engaged in some sort of commercial activity or
business it does not

amount to a sovereign function. In District Board, Bhagalpur v.

Bihar, it was held that by running the state treasury, the
government could not be said to be running a commercial activity
or business and thus would not be liable for torts committed by the
officials of the treasury.
8. In Nodin Chunder Dey v. Secretary of State for India, it was held
that giving of licence

and taking excise duty fell within the sovereign functions of the
state and thus the state could not be held liable for any wrongs
committed thereunder. 6.1.2 Vidyawati to Kasturilal and the later
developments
1. In the landmark judgement of Vidyawati v. Rajasthan, the
sovereign immunity of the

state after commencement of the constitution was examined for

the first time. The driver of a jeep kept exclusively for use by the
collector fatally injured a pedestrian while driving the jeep back
from the warehouse to the collector’s residence. A suit for damages
was filed against the state as it was vicariously liable for the
negligence of its servant. The state pleaded sovereign immunity
under the P&O decision but the court held that herein the driver
was not performing any sovereign function and thus the state
would be held liable. However, the court also stated that the state
would be liable as any employer would be liable for acts done by
the employee within the course of
employment. Though this did not expressly overrule the principle
laid down in P&O, it did by implication mean that the government
could no longer be immune incase of wrongs committed by its
servants whether the same was done in the exercise of sovereign
or non-sovereign functions.
2. However, in Kasturi Lal Ralia Ram Jain v. Uttar Pradesh, the
development as made in

Vidyawati was considerably whittled down. In this case a person

was arrested and some gold was seized from him on the ground
that it was stolen. A police constable stole such gold and fled to
Pakistan. In the meanwhile, the person arrested was acquitted and
he proceeded against the state for damages under the principle laid
down by the Vidyawati case. However, the court referred to the
P&O case and stated that the act was committed by the constable
in exercise of his sovereign functions as delegated by the state and
thus the state was not liable. 3. The court also stated that in the
Vidyawati case, the driving of the jeep back from the warehouse to
the collector’s residence was not a sovereign function and thus the
state could be held liable. 4. The court however did state that
owing to the number of commercial activities which the state
enters into, limits for sovereign must be specified keeping in mind
the provisions of the Crown Proceedings Act in the UK. 5. It stated
that it was necessary to differentiate between sovereign and non-
sovereign functions of the state so that it may not evade liability. 6.
The Kasturilal case may be criticised for the fact that there exists no
clear distinction between a sovereign and non-sovereign function
except for the fact that when the government carries out such
functions as may be performed even by private individuals, it shall
be considered to be a non-sovereign function. However, even in
this case when the gold was left with the police, it may be
considered as a bailment which can be performed even by private
individuals. Also, in Vidyawati, the jeep was kept for exclusive use
of the collector who is an administrator with police functions and
thus the wrong committed could very well fall within the ambit of
sovereign functions of the state.
7. In the present day scenario, even though the distinction between
sovereign and non-

sovereign functions is maintained, the courts have considerably

reduced the ambit of sovereign functions thereby increasing the
number of cases wherein the government could be held liable.
8. For example in Mysore v. Ramachandra, damage was caused to
the plaintiff’s land due

to water overflowing from a reservoir constructed by the

government for the purpose of providing water to the general
public. The state was held liable as construction of the reservoir
was regarded as being a welfare function of the state and not a
sovereign function.
9. Again in Uttar Pradesh v. Hindustan Lever, a sub-treasury was
being run by the state

government for collecting such amounts as deposited by private

individuals and bodies for being credited into the accounts of
government departments. Some such amounts were embezzled by
government officials. The government was held liable as it was
exercising functions as could be exercised by any normal bank and
thus were not performing any sovereign function.
10. In Bihar v. SK Mukherji, it was held that the state is responsible damages in writ petitions as well. In Devki Nandan Pd. v. Bihar, the
for the safety of its court also awarded exemplary costs.

employees and would be held liable if it does not provide for

necessary measures for the same.
11. In State v. Ram Pratap, it was held that most functions carried
out by the Public Works

Department could be carried out by any private individual and thus

could not be regarded as a delegation of the sovereign functions of
a state.
12. In Shyam Sunder v. Rajasthan, it was held that when a
government official died on

famine duty due to negligence of the driver of a government truck,

the state would be liable as famine relief work does not
traditionally come within the ambit of sovereign functions of the
state as it could be undertaken even by private individuals.
13. Other such cases where similar judgments have been given are
that of Andhra Pradesh

v. K Padma Rani, Kerala v. K Cheru Babu, Indian Insurance Company

v. Radhabai.
14. In Khatri v. State of Bihar (Bhagalpur blinding case), it was held
that the state would

be liable to pay compensation wherein the right to life under Art.

21 was seriously affected as it is the duty of the state to act within
the authority of the law and protect the fundamental rights of the
people.
15. Similarly in Rudal Shah v. State of Bihar, a person who was
detained for 14 years

after his acquittal by the court was paid compensation by the state.
16. Other cases involving payment of compensation include
Nilabati Behera v. State of

Orissa (custodial death) and Chairman Railway Board v. Chandrima

Das (rape of Bangladeshi woman by railway employees).
17. However, the present day distinction between sovereign and
non-sovereign functions

has been criticised by many. It has been argued that sovereign

immunity must be made applicable for a foreign state in national
territory for acts committed against nationals.
18. The Law Commission in its First Report on Liability of State in
Tort stated that there

must be a relaxation in the rule of sovereign immunity of the

government and the distinction between sovereign and non-
sovereign functions of the state must be done away with. Thus, it
recommended drafting of a new law in this regard. 19. A bill
entitled Government (Liability in Tort) Bill was thus drafted and first
introduced in Parliament in 1965 but could not be passed. It was re-
introduced in 1967 and certain modifications were suggested by
the Joint Select Committee but no law has been enacted so far.

6.1.3 Writs and damages for Government torts

1. Generally speaking, damages cannot be awarded incase of a writ
petition under Art.s

32 and 226. This was also stated in the case of Jivan Mal Kochar v.
India.
2. However, in recent cases such as Rudal Shah v. State of Bihar, the
court has awarded
3. Generally the courts are reluctant to award damages as then it
raises questions with respect to fact and the courts do not like to
dwell on the same when it comes to writ petitions.
4. The Law Commission in a Working Paper suggested that a writ
petition under Art. 226

be combined with a suit for damages with relief being provided by

the HC in the first place and damages being awarded by a lower
court. However, whether or not such damages may be awarded is
to be left to the discretion of the HC.
5. There is but a lacuna in this scheme that it does not suggest
anything with respect to

Art. 32

6.2 Contractual Liability of Government 6.2.1 Formation of Contract

1. In UK due to the coming in of the Crown Proceedings Act, the
crown can now be sued for breach of contractual obligations and
no permission of the crown is required to institute a suit against it.
2. In India, formation of government contracts has been enshrined
in Art.s 298 and 299 of

the Constitution.
3. Art. 298 states that the Union or state government may enter
into a contract for any

purpose in exercise of their executive power. 4. Thus, the

government may make any contract for any purpose irrespective of
the fact as to whether the same comes within its powers as
enshrined in the 3 lists. 5. Also, the government may enter into a
contract in exercise of its executive power and no statutory
authority is required.
6. Art. 299(1) lays down the following conditions based on which a
contract shall be

entered into(a) All such contracts are to be made in the name of

the President or the Governor as the case may be. (b) All contracts
and assurances of property are to be executed on behalf of the
President or Governor. (c) The President or Governor shall
prescribe that the contracts are to be executed by such persons
and in such manner as they may direct or authorise.
7. It has been held that provisions of Art. 299(1) have not merely
been laid down for the

purpose of form but are mandatory in nature. This is done to

prevent the government from being liable incase a contract is
unauthorised. 8. Unless all conditions under this provision are not
satisfied, the contract cannot be enforced by the government or
against the government.
9. Such a strict view of the Art. is taken by the SC though the HC has
generally taken a

more liberal view.

10. However, a liberal view needs to be taken some times as even
though protecting the

government from unauthorised contracts is necessary, it is also

important to protect private parties who may be unaware of such
technicalities. Further, it is also important to make sure that
governmental work is not delayed. Thus, the courts have generally
taken a liberal view when the provisions of Art. 299 have been
substantially complied with.
11. A written contract is necessary however there need not
necessarily be a formal

document. It may even be through correspondence or through

offer and acceptance if all the provisions of Art. 299 are complied
with. The terms ‘executed’ in the article have been interpreted as
meaning a written contract. 12. The contract may be executed on
behalf of the President or the Governor only by an authorised
person. An unauthorised person cannot bind the government.
13. Art. 299(1) doesn’t lay down any specific rules with respect to
conferment of authority.

Generally it is done by way of notification in the official gazette.

However, at times even though a person is not authorised by
express terms of the rules but the rules may be interpreted as
conferring special or ad hoc authority on such person.
14. If the government objects to a contract duly signed by an
official claiming that such

person was not authorised to do so, the burden to prove that such
person was unauthorised lies on the government due to S.114(c) of
the Evidence Act which presumes that official acts have been
performed regularly. 15. The contract unless made and executed in
the name of the President or Governor is unenforceable even when
it is made by an authorised person.
16. In Chaturbhuj v. Vithaldas Moreshwar, the court relaxed its
view towards Art. 299(1)

and stated that even when a contract does not conform to the
requirements of the article, it will not be null and void. If the
government wishes, it may ratify such contract particularly when it
is for the benefit of the government. However, in Mulamchand v.
Madhya Pradesh, this view was held as being bad and it was stated
that any contract which did not comply with the provisions of
Art.299(1) was null and void. 17. Also, a contract of service
between the government and its employee need not conform with
the requirements of Art.299(1). This is because when a person gets
appointed to such service, his rights and duties become subject to
the statutory rules framed by the government.
18. A statutory contract does not come within the ambit of Art.
299(1). Such a contract is

one made under statute and not an ordinary executive order. This
has been upheld in A Damodaran v. Kerala.
19. In West Bengal v. BK Mondal, it was held that even if the
contract was invalid due to

non-compliance with the provisions of Art.299 (1), the government

is liable to pay the respondents for the work already done due to
the principle against unjust enrichment enshrined in S.70 of the
Contract Act.
6.2.2 Estoppel and Government Contracts
1. Generally speaking, Art.299 (1) cannot be by-passed by invoking
the doctrine of

estoppel.
2. However, many times the Courts have upheld the doctrine incase
there is a breach of

contract or a breach of promise (provided Art.299 has been

complied with) by the government and the same has given rise to
remedies under equity for the private party. Thus, in such a case,
the private party involved may invoke the court’s jurisdiction under
Art. 226. 3. But, this defence of estoppel cannot be used when the
provisions of Art. 299(1) are not complied with.
4. However, this has been criticised as even though Art.299 may
not have been complied

with, the party may have done an act in furtherance of the contract
and thus such strict interpretation of Art.299 must be relaxed. A
contract must not be vitiated merely on the ground of inadequacy
in form. 5. This principle is however not applicable to statutory
contracts as they do not fall within the purview of Art. 299.
6. In Union of India v. Indo-Afghan Agencies and Century Spinning
and Manufacturing

Co. v. Ulhasnagar Municipality, it was held that the HC under its

extraordinary jurisdiction as laid down by Art.226 was empowered
to enforce equities in favour of the plaintiff due to the promise
made by the government to such person.

6.2.3 Contracts and Statutory Discretion 1. As such the doctrine of

promissory estoppel does not pertain to statutory contracts as Art.
299(1) only deals with contracts made under executive power. 2. If
a public authority enters into a contract using its general powers,
then such contract cannot fetter the exercise of a statutory power.
However, if fetters are imposed under a statutory power, the
contract would be valid even if it fetters subsequent use of power.
3. An example may be given of a contract between an electricity
board and a company to

supply electricity to such company on subsidised rates owing to a

statutory provision. This is an exception to the general rule
provided under the statute. Now, in the future, the board cannot
charge at a higher rate from the company claiming that the general
rule provides for charging such rates. The reason for the same is
that the exception is made under statute and thus it may be used
to impose fetters on the exercise of general statutory powers.
(Indian Aluminim Company v. KSE Board)

6.2.4 Articles 14 & 19(1)(g) and Government Contracts 1. Earlier,

the courts generally tended to support the government with
respect to the party with which they wanted to enter into a
contract. The government was thus allowed to deal with anyone it
chose as per its discretion.
2. Similarly, in CK Achutan v. Kerala, the Government cancelled its
contract with a

person for supply of milk in pursuance of its policy of awarding the

same to a cooperative society. This was challenged under Arts. 14,
19(1)(g) and 31. The court however ruled in favour of the
government stating that a contract creates a private right and not a
public right. The government thus had the freedom to deal with
anyone it chose.
3. Again in Punnen Thomas v. Kerala, a person was blacklisted for
10 years from

submitting any tender or taking up any government work. This was

upheld on the basis of the fact that the government has the right to
choose anyone it wishes to deal with. Herein, Mathew J. in his
dissenting judgment stated that such action was contrary to the
principles of natural justice as the person was not given an
opportunity to be heard and it was invalid as it would lead to loss of
reputation of the plaintiff in the business world.
4. In Rasbihari v. Orissa, the government had the monopoly over
trade in kendu leaves

and it invited offers for purchase of such leaves for further leaves.
Instead of following a system of competition between the
purchasers, it arbitrarily allowed only the previous year’s licensees
to apply. This was contested on the ground that granting such
privilege to the former licensees had no connection with the object
of the sale which was to effectively sell the leaves in public interest.
Thus, the government order was struck down.
5. However, the above case’s effect was diluted in Trilochan Mishra
v. Orissa, wherein an

in an auction for kendu leaf sale rights, sale was made to the ones
with the lowest bids. Such bidders were asked to raise their prices
in order to meet that of the highest bidder. It was held that the
government had the discretion of selecting whoever it wanted to.
6. The trend was finally changed in Ramana Dayaram Shetty v.
International Airport

Authority (Airport case). In this case, the International airport

authority, a statutory body invited tenders for setting up a 2nd
class restaurant in the airport and K’s tender was accepted as it was
the highest and it satisfied all the requirements. Meanwhile, K
purchased the required equipment for setting up the restaurant.
However, the owner of the former restaurant did not vacate the
premises and litigation ensued between him and the government
which he lost. Thereafter, K was allowed to set up the restaurant.
The former owner, Ramana then appealed to the SC on special
leave. The following issues were addressed in the case(a) The first
contention made was that K’s petition was not selected on the
conditions of eligibility as given in the invitation. To this, it was
stated that the test for eligibility was to be an objective and not a
subjective one. (b) The second contention was as to whether the
authority’s action in granting the tender to K was wrong or not.
Herein, the authority contended that it could not be bound by the
criteria provided in the invitation as they were not based on any
statute or administrative rules. Further, they stated that they had
the discretion to reject all other tenders and enter into negotiations
with K. To this, the court contended that infact the authority had
rejected all tenders and accepted K’s tender without entering into
any negotiations. (c) Again, it was questioned whether the
petitioner had any locus standi to file the case as he was not a
tenderer in the first place. To this the court replied that had the
petitioner known that the criteria of eligibility as given in the
invitation would not be
used to grant a tender even he would have applied. Thus, he had
locus standi as such decision affected his rights. In this case, the
court held for the first time that the state does not have absolute
discretion with respect to entering into a contract. It must consider
all claims fairly and give everyone applying an opportunity to have
their claims examined fairly.
7. Thereafter in Uttar Pradesh v. Shri Charan Sharma, it was held
that parties must be

allowed to bid against each other in an auction so that the best

claim is selected.

6.2.5 Contracts and Writs

1. Previously, as stated in Achutan’s case, no action with respect to
writ proceedings

would lie incase of government contracts.

2. This rule changed in the Ram Sanehi case. Herein, cases involving
contracts were

categorised as those which are purely contractual and neither do

they have any statutory basis nor are they regulated by any statute.
The second category of cases involves statutory contracts and there
is a direct breach of a statutory provision. The third and last
category is of such cases where the contract has a statutory flavour
but is not violative of any statutory provision as such. 3. Incase of
the first category of contracts, the relationship between the parties
are ruled by the terms of the contract. This is not enforceable by
way of a writ as the contract here creates a private right and not a
public right. 4. Incase of the second category, as there is a violation
of a statutory provision such as when the statutory right of a
petitioner is infringed or when the authority does not fulfil a
statutory obligation, a writ petition will lie. 5. In the above category
may be placed such cases wherein rights of the parties are infringed
under Art.14 due to discrimination. 6. As regards the third category,
the general rule is that a writ may be issued even when the
obligation has a statutory flavour, i.e. when it is partially statutory
and partially contractual. However, this rule has always been in a
state of flux.
7. In SKG Sugar Ltd. v. State, a similar question came up. The court
stated that as the

order for inviting contracts was made under statute, the fact that it
was a contractual obligation did not bar the court to issue a writ.
8. However, in Mangat Ram v. Delhi Development Authority, the
court ruled otherwise.

Lease of a piece of land was executed in the name of the President

on behalf of the plaintiff based on statutory provisions. Later such
lease was cancelled and the petitioner filed a writ petition. This was
rejected by the court on the ground that the obligation was purely
contractual in nature although the lease was granted under statute
and under the authority of the President.
9. In Shital Prasad v. M. Saidullah, a contract to sell sugar was
entered into with the

petitioner subject to the clause that it could be cancelled by orders

from the district magistrate without giving an opportunity to be
heard. The contract was cancelled and the petitioner filed a writ
petition claiming that principles of natural justice were not
followed. The court dismissed the petition on the ground that it
was a cancellation of a contract and non-adherence to principles of
natural justice couldn’t be argued.
10. However, a writ is a proper remedy when there is undue
exercise of administrative

power in context of the contractual relationship. In Marwar Tent

Factory v. India, the petitioner had entered into a contract with the
government for sale of tents to the latter. The government later
terminated the contract stated that the tents were not of proper
quality and went on to assess damages unilaterally without
allowing the petitioner a right to be heard. This was held by the
court in a writ petition as being unreasonable as no contractual or
statutory provision allowed the government to assess damages on
its own.

6.2.6 Doctrine of Legitimate Expectation

Unit VII- Government Privileges in Legal Proceedings 7.1 Whether a

statute binds the State? 1. The rule in England is that the statute
cannot bind the government unless the same is expressly
mentioned in such statute. This was primarily due to the maxim-
the King can do no wrong
2. This view existed in India prior to independence and was upheld
in the case of Province

of Bombay v. Municipal Corporation of the City of Bombay. After

independence, the same rule was upheld in Director of Rationing v.
Corporation of Calcutta. However, in his dissenting judgment
Wanchoo J. stated that such a rule is erroneous as India was no
longer a monarchy and was a republic. Thus, keeping in mind the
same, the rule must be modified.
3. This case was later overruled in Superintendent and
Remembrancer of Legal Affairs,

West Bengal v. Corporation of Calcutta. It was held that generally

speaking, the government would be bound by statute except when
an exception has been made with respect to the same expressly or
by necessary implication. This rule was confirmed in India v. Jubbi.
4. The burden is on the state to prove that an exception has been
made. 5. Generally, the courts liberally construe the terms
‘necessary implication’ to allow an exception to the state. An
example of such exclusion by way of necessary implication may be
seen with respect to criminal proceedings wherein the punishment
involved is one of imprisonment. In such a case, the state has to be
exempted as it cannot be imprisoned.
6. A similar situation was seen in India v. Jubbi, wherein the statute
provided for transfer

of rights and title in land from the landowner to the tenant on the
payment of some compensation. The question was whether the
state could apply for the same as well. The court ruled in the
affirmative stating that the court could not be necessarily excluded
from the ambit of the statute in such case as the primary object of
the statute
was to take away vast stretches of land from the control of
landowners and grant it to others.
7. In State v. Employees State Insurance Corporation, a question
arose as to whether the

state could be made liable to reimburse the insurance corporation

for an accident caused by negligence of its employee. It was held
that the object of the act was to work for public good. Thus,
exclusion of the state from the ambit of the statute by way of
necessary implication would defeat the very purpose of the act.

7.2 Government Privileges not to produce documents 1. S.123 of

the Evidence Act provides that no person can produce unpublished
government records with respect to the affairs of the state as
evidence unless permission to do the same is granted by the head
of the concerned department as per his discretion. 2. This provision
gives great advantage to the government especially because the
term ‘affairs of the state’ have been construed very broadly and
include even the commercial activities of the state.
3.In Bihar v. Kasturbhai Lallbhai, it was held that the term ‘public
affairs’ means any

matter of a public nature or any case wherein a disclosure made by

the state would affect public service. 4. A valid argument in favour
of this provision is that where a case in which disclosure might
seriously jeopardize public interest, this provision might prove
helpful. 5. S.123 is based on the common law principle that no
evidence may be allowed to produced in court if its disclosure
would adversely affect public interest. 6. However, in a later case,
the House of Lords held that the court has the right to inspect such
documents without showing it to the parties so as to judge whether
disclosure would actually prejudice public interest.
7.In Punjab v. Sodhi Sukhdev Singh, it was held that the privilege
under S.123 must be

claimed only with respect to cases involving injury to public interest

and not in cases wherein producing such evidence could defeat the
government’s claim. 8. It is for the courts to decide whether a
matter is concerned with the affairs of the state or not. Generally,
the courts are reluctant to construe commercial activities as being
part of the term ‘affairs of state’. Thus, they use the parameter of
‘injury to public interest’ as a defence.
9.In the abovementioned case, the court also stated the ‘class
doctrine’ whereby a certain

class of documents could be exempted not on the basis of their

content but on the basis of the fact that disclosure would materially
affect the freedom of expression of opinion with respect to public
policies as is seen with respect to the minutes of discussion in the
Parliament. Another example may be given of inter-departmental
and intra-departmental correspondence.
10. In India as well it has been stated that if the court is not
satisfied by the reasons given

in the affidavit by the government seeking privilege, it may look

into such evidence so as to decide whether or not there is any
injury to public interest.
11. Also, if a part of the evidence is published, it does not mean
that the rest cannot be protected.
12. All these provisions were upheld in Raj Narain v. Indira Gandhi
and SP Gupta v.

President of India (Judges Case).

13. In the Judges Case, the question came up as to whether incase
of correspondence

between the Law Minister and the Chief Justice with respect to
extension of term of service of an additional judge can be protected
under S.123. It was held that there was no protection in such case
as in a democracy there is a need for an open government so that
public interest may be catered to. Also, the class doctrine cannot be
brought into the picture here as this doctrine is used mainly to
protect matter so that there is no hindrance to freedom of
expression due to fear of recording of such matter as evidence. 14.
Another issue considered in this case was whether the advice given
by the ministers to the President is protected by S.123. It was held
that such advice could be protected but the basis for such advice
had to be disclosed.

7.3 The Official Secrets Act, 1923 1. This act deals with (a) spying or
espionage and (b) disclosure of any other secret official
information. 2. Persons having possession of official information
include(a) Those that are in possession or control of any secret
information. (b) Those persons who obtain such information in
contravention with the Act. (c) Those persons to whom such
information has been entrusted by another holding such office. (d)
Those persons who have such information or obtain the same
owing to holding of some office (past or present) or by holding a
government contract or holding office under any person.
3. An offence is not only committed by such person who passes on
the information but

also by such person who receives the information.

4. The information covered under this act must be an official secret
and not a secret of a

private nature. What is an official secret is generally to be decided

by the government though it is not always the sole judge with
respect to the same.
5. In RK Karanija v. Emperor, it was held that an advertisement in a
newspaper inviting

people from the general public to send letters to the editor for
publication of official secrets for payment was in contravention of
the provisions of the act.
6. Similarly, in State v. K. Balakrishna, parts of the budget were
published before

presentation and the same was considered a contravention of the

Act as the budget is a secret document.
7. The Act gives a carte blanche to the executive to punish any
person incase of voluntary

disclosure of official secrets without any exception being made with

respect to public interest or otherwise. The information may be
disclosed only to such persons as the law authorises or to a court of
justice or to any person to whom it is in the interests of the state
his duty to communicate. 8. The punishment provided is
imprisonment which might extend to 3 years or fine or both. The
same has to be decided by court. 9. Also, no court may take
cognisance of such cases unless they are brought to its notice by
the government or any officer who is authorised to do so. 10. The
Indian Act is largely based on the English Act of 1911. 7.4 Right to
Information Act, 2005 1. Right to information forms part of the
fundamental right to speech and expression and thus must be
guaranteed to all citizens. Another reason for the existence of such
right is due to the maxim-justice should not only be done but also
must be seen to be done. 2. However, secrecy may be kept in cases
involving public security or national interest. 3. Reasons for
requirement of an open government(a) To ensure active
participation of the people in the government. (b) In a democracy,
the government is answerable to the people. In order that the
people exercise such right, they must have a right to know about all
the policies of the government. (c) Increase in state functions due
to the coming in of the concept of welfare state, it is necessary that
all information be given to the public so that the state does not act
arbitrarily. Unit VIII- Ombudsman in India: Lokpal and Lok Ayukta 1.
An ombudsman is essentially a mechanism created by the
legislature in order to control the executive especially civil servants.
2. Such an office is created primarily because due to the increase in
executive functions which has allowed problems such as bias,
corruption, etc. to creep in. 3. The ombudsman helps checking
administrative excesses, protects interests of citizens and helps
redress their grievances. 4. According to Garner, an ombudsman is
‘an officer of Parliament, having as his primary function, the duty of
acting as an agent of parliament for the purpose of safeguarding
citizens against abuse or misuse of administrative function by the
executive.’ 5. This institution first started in Scandinavian countries
with Sweden being the first in 1809 to implement the same. It was
then followed by Finland, Norway, England, New Zealand, India,
Australia, etc.
6. In England, such powers are generally exercised by a
Parliamentary Commissioner who is appointed by the Crown and
holds office till he attains 65 years of age. He can be removed only
by an address of both houses of Parliament. 7. In India, there is no
such provision at the central level. However, Lok Ayuktas do exist in
various states. 8. Need for ombudsman(a) Judicial control is not
effective as the judiciary cannot go into the merits of any decision
given by the administration. It can merely quash an administrative
decision on the grounds that it is not in accordance with the law
such as ultra vires, malafides, irrelevant considerations, patent
error in the law, etc. (b) It is very difficult to prove the
abovementioned grounds and the courts generally do not prefer
asking administrative authorities to produce reports and files. Thus,
the entire burden lies on the individual challenging the order to
prove his case. (c) The legislature generally does not lay down
standards which are to be followed by the administration while
framing rules, orders, etc. It might so happen that something in a
statute may be permissive for the administration to do but not
mandatory. The administration cannot be questioned in this case
even if it does not do such thing in public interest as the same is not
mandatory. (d) Also, in writ petitions which is the most common
way of challenging an administrative action, courts rely primarily on
affidavits filed by the parties rather than oral testimony and cross
examination. Such affidavits generally seek to conceal more than
they reveal. (e) The administration cannot also be compelled to
give reasons for decisions taken by it beyond the principles of
natural justice. (f) Further, judicial procedure is very time
consuming and expensive. It regards the engaging of counsels as
well which many people cannot afford. (g) Also, technically the
legislature being a representative of the people should exercise a
check on the administration. But, this is not possible owing to a
multi-party system and party politics because of which now it is the
executive which exercises power over the legislature. (h) The
legislature is always overburdened and focuses more on legislation
and formulation of policies rather than exercising a check on the
administration.

9. The creation of a system of ombudsman in India has been a

failure so far atleast at the centre. 10. In 1966, the Administrative
Reforms Commission suggested the creation of such an office in its
report. 11. In 1968, a Bill was introduced in the Lok Sabha called the
Lok Ayuktas Bill but before it could be placed before the Rajya
Sabha, the Lok Sabha was dissolved and the Bill collapsed.
12. Another attempt was made with the Central Bill of 1971 but
again the Lok Sabha was dissolved. 13. A third and final attempt
was made in 1977 with the Lokpal Bill but again it could not be
passed due to the dissolution of the Lok Sabha. 14. However, this
system is being followed in several states of India like Orissa,
Maharashtra, Rajasthan, Gujarat, Karnataka, Bihar, Uttar Pradesh,
Madhya Pradesh, Himachal Pradesh and Andhra Pradesh on the
model of the 1971 Central Bill. 15. It has been stated that such an
institution may be created in countries with a small population. In a
nation like India which has a large population, the office of
ombudsman would be overburdened with cases of
maladministration and hence the system of judicial review is best.
16. Also, the ombudsman only has powers of investigation,
reporting matters and imposing functioning. It cannot act as a
super administrator and enforce its decisions.