Administrative Law

1
ADMINISTRATIVE LAW
M.P. Jain*
I INTRODUCTION
THE YEAR 2001 has witnessed a number of cases in the area of administrative
law. But these cases are of a routine nature reiterating well established legal
propositions. No case can be characterized as one giving any new direction or
dimension to Indian administrative law. No new ground has been broken during
the year in this area.
II DELEGATED LEGISLATION
Excessive delegation
It is a well established proposition that a legislature cannot delegate
unrestrained and unqualified legislative power on an administrative authority. It
is known as the doctrine of excessive delegation. It envisages that "excessive
delegation may amount to abdication" and "delegation unlimited may invite
despotism uninhibited".1 So the principle has been evolved that "the legislature
cannot delegate its essential legislative function". The legislature must lay down
policy and principle while delegating legislative power.
The doctrine of excessive delegation has been explained by the Supreme
Court in Kishan Chand Sharma v. Union of India.2 The legislature cannot delegate
uncanalised and uncontrolled power. The legislature must set the limits of the
power delegated by declaring the policy of the law and by laying down standards
for guidance of those on whom the power to execute the law is conferred.
To assess whether a legislation suffers from excessive delegation "the scheme,
the provisions of the statute including its preamble and the facts and circumstances
in the background of which the statute is enacted, the history of the legislation,
the complexity of the problems which a modern state has to face, will have to
be taken note of \ If, on a liberal construction given to a statute, a legislative
policy and guidelines for its execution are brought out, "the statute will be
upheld as valid. But the Supreme Court has warned that the rule of liberal
construction should not be carried by the court "to the extent of always trying
to discover a dormant or latent legislative policy to sustain an arbitrary power
conferred on the executive".
* Professor of Law (Retd.).

1 Registrar, Coop. Societies v. K. Kunjabmu, AIR 1980 SC 350 at 352.
2 AIR 2001 SC 1493 at 1502.
www.ili.ac.in The Indian Law Institute

2 Annual Survey of Indian Law [2001
The Supreme Court has also applied the above proposition in B. Krishna
Kant v. State of Karnataka? The Karnataka legislature conferred on the
Bangalore Development Authority [BDA - a statutory body] power to levy
and collect property tax. This was challenged on the ground of excessive
delegation of legislative power. But the Supreme Court rejected the
contention, holding that the authority to collect property tax given to BDA
was neither arbitrary nor in excess of the power of delegation. Delegation
has been made to a statutory body which is entrusted with the duty of
developing the City of Bangalore. The process of development is statutorily
controlled. An elaborate machinery has been provided for the levy and
collection of the tax and so levy and collection of the tax has not been left
to the arbitrary discretion of the BDA.4
Ultra vires rules

Rules which are ultra vires the parent Act do not become valid after being
laid before the legislature.5 The Supreme Court has asserted that the rules which
are ultra vires the parent statute are not binding even if they have been laid
before the legislature. In the words of the court:5"
The fact that the regulations may have the force of law or when made
have to be laid down before the legislature concerned do not confer any
more sanctity or immunity as though they are statutory provisions
themselves. Consequently, when the power to make regulations is
confined to certain limits and made to flow in a well defined canal with
stipulated banks, those actually made or shown and found to be not
made within its confines but outside them, the courts are bound to
ignore them when the question of their enforcement arises and the mere
fact that there was no specific relief sought for to strike down or declare
them ultra vires . . . .
In the instant case, the court declared certain regulations made by the All
India Council for Technical as void and unenforceable.
Framing of rules
The general principle laid down in a number of cases so far is that the
judiciary cannot direct the legislature or the executive to frame a particular Act
3 AIR 2001 SC 1885.

4 There are a number of cases in which delegation of taxing power to non-elected statutory bodies
has been upheld. See, for example, J.R.G. Mfg. Association v. Union of India, AIR 1970 SC
1589.
5 Bharathidasan University v. All India Council for Technical Education, AIR 2001 SC 2861. To
the same effect is an earlier case, Hukamchand v. Union of India, AIR 1972 S 2427. For laying
procedure, see, Jain, Treatise, I, 136-42.
5a Id at 2869.

Vol. XXXVII] Administrative Law 3
or rules.6 But in the Chandrakant,1 the Gujarat High Court has sought to engraft
an exception on this general rule, viz. if the purpose and object of the Act
already passed and brought into force is being defeated or frustrated by inaction
on the part of the executive to carry out the mandate of the legislature, the court
cannot sit on the fence feeling helpless. It is open to the court to direct the
government to frame the rules. Of course, the court cannot direct what type of
rules should be framed, "but certainly the court can direct to frame the rules that
may be deemed just and proper in the facts and circumstances and keeping in
mind as well as policy adopted and guidelines given in the Act."8
In the instant case, the legislature passed an Act sanctioning a monthly
pension to the ex-members of the state legislature. The state government was
given power to make rules for carrying out the purposes of the Act. The Act was
passed in 1984 but no rules were framed until 2001. Pensions were not being
paid to the ex-MLA's in the absence of the rules. It appeared that by not making
the rules, the government wanted to avoid payment of pension to the ex-MLAs.
In these circumstances, the high court directed the government to frame the
rules.
In the opinion of the present author, the high court decision is commendable.
Bureaucratic inertia is proverbial in India. Rules are not made for years after the
statute is passed making it operationally ineffective. May be that the high court's
pronouncement in the instant case will instil some sense of responsibility and
accountability in the administration. The power to make rules should be
charactered not as purely discretionary but as 'discretion coupled with duty'.9
Ill ADMINISTRATIVE DIRECTIONS
The government has power to issue administrative directions governing the

service conditions of its employees in the absence of any statutory provisions
governing the field. Once statutory rules are promulgated, administrative directions
will have no force in relation to the matters covered by the rules.10
The question whether a direction is legally enforceable or not keeps arising
before the courts from time to time. The general theory is that while rules made
under statutory power are binding, a non-statutory instruction is generally not
enforceable. A direction does not fall in the category of legislation direct or
6 Narinder Chand Hem Raj v. Lt. Governor Union Territory H.R, AIR 1971 SC 2399; Supreme
Court Employees Welfare Association v. Union of India, AIR 1990 SC 334; State of Jammu &
Kashmir v. A.R. Zakki, AIR 1992 SC 1546; A.K. Roy v. Union of India, AIR 1982 SC 710. Also
see under Mandamus, infra.
1 Chandrakant Muljibhai Parikh. v. State of Gujarat, AIR 2001 Guj 234.
8 Id. at 243.
9 Jain, Treatise, II, Ch. XX . For a detailed discussion on 'Delegated Legislation', see, Jain, A
Treatise on Administrative Law, I, Chs. IV-VI; Jain, Cases and Materials, I, Chs. Ill - V.
10 MM. Dolichan v. State of Kerala, AIR 2001 SC 216. In service matters, power to make rules
is conferred on the President/Governor under art 309 of the Constitution. Failing the making
of rules, the concerned government can issue administrative instructions which operate subject
to the rules. See, Baleshwar Dass v. State of Uttar Pradesh, AIR 1981 SC 41.

subordinate.11 But then there are situations when courts have held directions as
binding.12
The Gauhati High Court has considered this specific question in Anil Kumar
Bhattacharya v. Union of India.13 The telephone department has issued an
instruction to the effect that if the telephone service of a subscriber remains
interrupted continuously for 15 days or more due to department reasons, rebate
in rental should be granted for the period. The question before the Gauhati High
Court in Anil was whether the instruction issued by the telephone department
was enforceable against the department. The high court held it was binding on
the department. An instruction laying down policy, and after adoption and
communication to all, is binding on the concerned authority.14 The department
must adopt a uniform policy in all cases.15
IV NATURAL JUSTICE
It is a well established proposition of administrative law that the civil rights

of a person cannot be interfered with without giving him a hearing according to
the principles of natural justice.16
An order depriving a person of his civil right passed without affording him
an opportunity of being heard suffers from the vice of violation of natural justice
and is, thus, an arbitrary order.17 "... the doctrine of natural justice is not only
to secure justice but to prevent miscarriage of justice", says the Supreme Court
in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant.1*
In the instant case, the Supreme Court has reiterated the well established
propositions regarding natural justice, viz., the concept of natural justice cannot
be put in a straight-jacket and that natural justice depends on the circumstances
of each and every case - the nature of the inquiry, the rules under which the
tribunal is acting, the subject-matter that is being dealt with and so forth. The
essential point is that the person concerned should have a reasonable opportunity
11 Narendra Kumar Maheshwari v. Union of India, AIR 1989 SC 2135.

12 In State of Uttar Pradesh v. Chandra Mohan Nigam, AIR 1977 SC 2411, the Supreme Court
has pointed out that if the instructions do not violate any statutory provisions or rules and if
the instructions furnish an essential guideline to a statutory provision for the purpose of securing
certain things, they are binding on the concerned authority.
In B.S. Minhas v. Indian Statistical Institute, AIR 1984 SC 363, the Supreme Court pointed out
that the instructions issued by the authority for procedural fairness even if they do not have
statutory force are binding.
In Dr. Amarjit Singh Ahluwalia v. State of Punjab, AIR 1975 SC 984, the Supreme Court has
pointed out that an administrative instruction does not have the force of law, but the authority
cannot at its sweet will depart from it without rational justification.
13 AIR 2001 Gau 108.
14 Also see, Home Secretary, U.T of Chandigarh v. Darshuit Singh Grewal, 1993 4 SCC 25.
15 For a fuller discussion on 'Directions', see, Jain, Treatise, I, Ch. VIII; Jain, Cases and Materials,
I., Ch. VII.
16 For discussion on 'Natural Justice', see, Jain, Treatise, Chs. IX-X-XII; Jain, Cases and Materials,
I, Chs. VIII, IX and XI.
17 Haji Abdool Shakoor & Co. v. Union of India, JT 2001 (10) SC 438.
18 AIR 2001 SC 24.

of presenting his case and that the administrative authority concerned should act
fairly, impartially and reasonably. The duty is not so much to act 'judicially' as
'fairly'.
In the Kumaon case, cited above, disciplinary inquiry conducted by the
body concerned against an employee was quashed on the ground of denial to
him of a reasonable opportunity to defend himself as there were many flaws in
the procedure adopted. No documents were shown to him; there was no presenting
officer; no defence witness was examined and no cross-examination of the
witnesses testifying against him was allowed. The Supreme Court emphasized:19
It is a fundamental requirement of law that the doctrine of natural

justice be complied with and the same has, as a matter of fact, turned
out to be an integral part of administrative jurisprudence of this country.
Disciplinary inquiries
The principles of natural justice directly come into play in the area of
disciplinary enquiries against civil servants. This is amply shown by the Kumaon
case mentioned above. It is a well-established proposition of law that in
disciplinary inquiries against civil servants, principles of natural justice are to be
compiled with.20
There are a few Supreme Court cases reported during the year concerning
disciplinary inquiries. An inquiry was conducted against an official of the State
Bank of India, a statutory body. The disciplinary authority differed with some
of the conclusions reached by the inquiry officer. While the inquiry officer had
held some of the charges not proved against he delinquent official, the disciplinary
authority held them to have been fully proved. On this basis, his service was
terminated.
The matter came before the Supreme Court to resolve the following
question:21
In a case where disciplinary authority disagrees with the enquiry officer

on certain articles of charges, then is it necessary that before it records
its findings on such charges, it should record its tentative reasons for
such disagreement, and communicate the same to the delinquent officer
and give him an opportunity to represent before the disciplinary authority
ultimately records its findings?
The Supreme Court answered the question in the affirmative in view of its
earlier discussion on the same point in Punjab National Bank v. Kunj Behari
Misra.22
19 Supra note 18 at 32.

20 Channabasappa Basappa Happali v. State of Mysore, AIR 1972 SC 32; Sayeedur Rehman v.
State of Bihar, AIR 1973 SC 239.
21 State Bank of India v. Arvind K Shukla, AIR 2001 SC 2398.
22 AIR 1998 SC 2713.

In State of Uttar Pradesh v. Harendra Arora23 the Supreme Court has

considered a different problem arising in connection with disciplinary proceedings.
Under a Civil Service Rule, the report of the inquiry officer has to be furnished
to the delinquent officer. What happens if the report is not furnished to him? In
the instant case, the concerned officer was dismissed from service. The question
was whether the dismissal order would be invalid because of the non-furnishing
of the enquiry report to the concerned officer?
The Supreme Court has ruled that it is necessary to furnish him the enquiry
report. It is a part of the reasonable opportunity of defending himself. Denial of
the report to the delinquent officer would be a denial of the principles of natural
justice.24
If the report is not furnished to the officer concerned, what happens to the
punishment awarded to him on the basis of the inquiry report. This depends on
the question whether in fact prejudice has been caused to the concerned employee,
or not, on the ground of denial of the report to him. This has to be considered
on the facts and circumstances of each case. If the court concludes that the non-
supply of the report would have made no difference to the ultimate findings and
the punishment given by the disciplinary authority, the court ought not to interfere
with the order of punishment. The court ought not mechanically set aside the
order of punishment on the ground that the report was not furnished to the
delinquent employee.25
The above ruling has been reiterated by the Supreme Court in another case
during the year, viz. Oriental Insurance Co. v. S. Balakrishnan.2b
Formerly, the courts followed the rule that a decision arrived at in
infringement of the principles of natural justice is void.27 But now, as is clear
from the above ruling, the courts are substituting the rule of 'prejudice' in place
of the rule of 'voidness'. The court would not interfere if it comes to the conclusion
that it would have made no difference to the ultimate findings and the punishment
given.28
The Supreme Court has in Kumaon Mandal Vikas Nigam Ltd. v. Girija
Shankar Pant,29 reiterated the proposition which is already well established that
the disciplinary authority is the sole judge of the facts. The high court does not
interfere with the findings of fact. But, even in such a case, judicial review of
the administrative action is available in the following situations: where it is
found that the recorded findings are totally perverse or legally perverse; where
23 AIR 2001 SC 2319.

24 See, Managing Director ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074.
25 Also see, Kishan Lai v. State of J&K (1994) 4 SCC 422.
26 AIR 2001 SC 2400.
27 Ridge v. Baldwin, (1964) AC 40.
28 This only reiterates what the court said in the ECIL case, supra note 24. Also, see, Jain, A
Treatise ofAdmnistrative Law I, 470. The Supreme Court has adopted this position on pragmatic
considerations. As the court has observed in the ECIL case: "Where, therefore, even after the
furnishing of the report^ no different consequence would have followed, it would be a perversion
of justice to permit the employee to resume duty and to get all the consequential benefits".
29 AIR 2001 SC 24 at 32.

the findings are based on no evidence. The adequacy or inadequacy of evidence

is not a justiciable matter "but in the event of there being a finding which
otherwise shocks the judicial conscience of the court, it is a well neigh
impossibility to decry availability of judicial review at the instance of an affected
person".30
The punishment to be awarded to the delinquent officer lies within the
discretion of the disciplinary authority but the same is subject to judicial review
on the ground of being arbitrary or discriminatory.31
Bias
In Kumaon,32 from the phraseology of the charge-sheet, the Supreme Court
concluded that the disciplinary authority was actuated with bias against the
concerned officer.
Interestingly, in Kumaon, the Supreme Court has taken note of the recent
changing shifts in the judicial thinking in England on the question of bias.
Taking note of the recent English cases, noted below,33 the Supreme Court has
observed:34
The test, therefore, is as to whether a mere apprehension of bias or

there being a real danger of bias and it is on this score that the
surrounding circumstances must and ought to be collated and necessary
conclusion drawn therefrom.
The court has observed that administrative action cannot be sustained if

"there is existing a real danger of bias". On the other hand, a 'fanciful' allegation
of bias would not vitiate the proceedings.
The question arises: what about the middle ground between "actual bias"
and a 'fanciful' allegation of bias? The prevailing norm is 'real likelihood of
bias" and the basis for the norm has been public credibility of the administration
of justice.35 This public perception is very significant and, therefore, this test
ought not to be discarded and a more stringent test ought not to be promoted in
India in view of the low public morality in every sphere of life.
The question of the test for bias has again been alluded to by the Supreme
Court in State of Punjab v. VK. Khanna.36 Again, the test of "real danger of
bias" as laid down in Kumaon Mandal37 has been reiterated. An interesting
30 See Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625.
31 Om Kumar v. Union of India, see, infra note 83.
32 See, supra note 18.
33 Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Exp, Pinochet Ugarte (No.2) 2000(1)
AC 119; Locabail Ltd. v. Bayfield Properties Ltd., 2000 QB. 491; Reg. v. Gough, [1993] AC
646.
34 Kumaon, supra note 18 at 35.
35 See, Metropolitan Properties Ltd. v. Lannon, [1968] 2 All ER 304, Also see, Jain, Treatise, I,
407-410; Jain, Cases, I, Ch. X, 866.
36 AIR 2001 SC 339.
37 Supra note 18.

8 Annual Suney of Indian Law [2001
feature of this case is that the Supreme Court has sought to equate the "real
danger" test with the "real likelihood" test.
In Rattan Lai Sharma's case,38 the court had observed that the test for bias
is "real likelihood of bias". The court had then attributed a meaning to "real
likelihood" to the effect that there must be at least "a substantial possibility of
bias in order to render an administrative action invalid."
The court, therefore, says in Khanna that "Rattan Lai Sharma thus, in fact,
has not expressed any opinion which runs counter to that in Kumaon Mandal
case and the decision in the last noted case thus follows the earlier judgment in
Rattan Lai Sharma s case even though not specifically noted therein."
The Supreme Court is, thus, trying to fudge the "real danger" test with the
"real likelihood" test. The fact of the matter is that the "real danger" test seems
to be more stringent than the "real likelihood" test. In laying down the "real
danger" test, the court is seeking to ignore the real rationale of the test, viz.
public credibility of the system, as stated above. The "real danger" test comes
dangerously close to the test of existence of actual bias.
In Khanna,39 the Punjab Government, issued a charge sheet against Kapoor
who was the former Chief Secretary to the Punjab Government. Even before
Kapoor could file his reply, the Chief Minister (Prakash Singh Badal) announced
appointment of an inquiry officer to go into the charges against Kapoor. This
was held to show bias against Kapoor. In service jurisprudence, the disciplinary
authority has to apply its mind upon receipt of reply to the charge-sheet, or the
show-cause notice, as to whether, a further inquiry is called for. Only thereafter,
the inquiry follows and not otherwise. But here the inquiry officer was appointed
even before receiving the reply of the delinquent officer and without applying
mind whether in the light of the reply of the concerned officer, a further inquiry
was called for.40 This fact along with the tenor of the chargesheet showed bias
on the part of the government. "Bias admittedly negates fairness and
reasonableness by reason of which arbitrariness and mala fide may creep in".
In Khanna, the Supreme Court took the rare step of quashing the inquiry as
such. But the court pointed out that "in the event there is an element of malice
or mala fide motive involved in the matter of issue of a chargesheet or the
concerned authority is so biased that the inquiry would be a mere farcical show
and the conclusions are well known then and in that event law courts are otherwise
justified in interfering at the earliest stage so as to avoid the harassment and
humiliation of a public official". The court insisted that it is the duty of the
courts to ensure that due procedure of law permeates the society and if such
process is affected then "law courts ought to rise up to the occasion."41
38 Rattan Lai Sharma v. Managing Committee Dr. Hari Ram Higher Secondary School, AIR 1993
SC 2155. For discussion on 'Bias', see, Jain, A Treatise on Admn. Law, Ch. X; Jain, Cases and
Materials, I, Ch. X.
39 Supra note 18.
40 For discussion on the concept of "non-application of mind", see, Jain, Treatise, I, 959; Jain,
Cases, Ch. XVI.
41 AIR 2001 SC 357.

V TRIBUNALS
There has been a proliferation of tribunals in India during the last several
years. These bodies, existing outside the regular hierarchy outside of courts,
perform adjudicatory functions.42 There have been a few cases during the year
expounding certain aspects of the functioning of these bodies.
The Supreme Court has ruled in Jaiswal43 that the doctrine of stare decisis
also applies to the tribunals. When a bench of a tribunal has finally decided a
question, another bench of the same tribunal should not later re-open the same
question. This is necessary to import some consistency, to the tribunal decisions.
The Supreme Court has emphasized upon this aspect as follows:44
Consistency is the corner stone of the administration of justice. It is

consistency which creates confidence in the system and this consistency
can never be achieved without respect to the rule of finality.
The court referred in this connection to one of its earlier decisions, viz., £.7.
Rooplal v. Lt. Governor through Chief Secretary, Delhi.45
In Rooplal, the Supreme Court had expressed its "serious dissatisfaction"
when one coordinate bench of the tribunal in effect overruled an earlier judgment
of another co-ordinate bench of the same tribunal. "This is opposed to all principles
of judicial discipline". If at all a subsequent bench is not satisfied with the view
taken by the earlier bench then it ought to refer the matter to a larger bench. The
court had then observed: "Precedents which enunciate rules of law form the
foundation of administration of justice under our system. This is a fundamental
principle which every presiding officer of judicial forum ought to know, for
consistency in interpretation of law alone can lead to public confidence in our
judicial system."
A tribunal decision cannot be reviewed by an administrative body. To permit
review of a tribunal decision by an administrative body amounts to executive
interference with the exercise of quasi-judicial function which is not permissible.46
This is a principle of great significance as it seeks to achieve the laudable object
of keeping administrative adjudication free from executive interference.
Special court
Power to punish for contempt can be conferred on a tribunal by a statutory
provision.
A special court has been instituted under the Special Court (Trial of Offences
Relating to Transactions in Securities) Act, 1992. Section 11-A of the Act provides
42 For a full fledged discussion on the system of administrative adjudication in India, see, Jain,
Treatise, 1, Chs. XIII and XIV; Jain, Cases and Materials, II, Chs. XII and XIII.
43 Govt. ofA.R v. A.R Jaiswal, AIR 2001 SC 499.
44 Id. at 507.
45 AIR 2000 SC 594.
46 Union of India v. K.N. Shankarappa, (2001) 1 SCC 582.

that the special court will have and exercise the same jurisdiction, powers and
authority in respect of contempt of itself as a high court has47 and may exercise,
for this purpose.
Explaining the implications of the above provision, the Supreme Court has
observed in Pallav Sheth v. Custodian** that just as the high court, being a court
of record, has the power under article 215 of the Constitution of India to punish
for contempt of itself, similarly, the special court can also exercise the same
power as is available to a high court under article 215.
Debt recovery tribunal

Parliament has enacted the Recovery of Debts due to Banks and Financial
Institutions Act, 1993, to set up the Debt Recovery Tribunal. As a result of the
Act, all proceedings including execution proceedings stand transferred to the
Debt Recovery Tribunal. The jurisdiction of the civil courts comes to an end in
this matter. The only forum which is competent to entertain suits or other
proceedings is the Debt Recovery Tribunal.
The constitutional validity of the Act came to be questioned through writ
petitions in several high courts. The Allahabad High Court held the Act to be
valid. 49 On the other hand, the Karnataka High Court declared the Act
unconstitutional in D.K Abdul Khader v. Union of India.50 The main argument
of the high court was that the power to constitute tribunals was concentrated in
articles 323 A and 323 B of the Constitution and that no tribunal could be
created by Parliament outside these constitutional provisions. The creation of the
Debt Recovery Tribunal was not authorised by these articles of the Constitution.
Similarly, the Delhi High Court held the Act to be unconstitutional.51
But the controversy has now been resolved by the Supreme Court. The
court has held the Act to be constitutionally valid in Union of India v. Delhi
High Court Bar Association.52 As the case has been reported in the year
2002, the salient features of this decision will be taken note of in the Survey
next year.
Court martial
A court martial is held under the provisions of the Army Act to try offences
committed by the army personnel. The court martial functions according to the
principles of natural justice subject to the relevant rules made for the purpose.
The court martial proceedings are subject to judicial review under article 226,
but not subject to the superintendence of the high court under article 227 of the
Constitution.53
47 The high courts enjoy the power to punish for contempt of court under art 215 of the Constitution.
Art. 215 declares a high court to be a court of record.
48 AIR 2001 SC 2763.
49 Mudit Entertainment - Industries v. Banaras State Bank Ltd, Allahabad, AIR 2000 All. 181.
50 AIR 2001 Kant 176.
51 Delhi High Court Bar Association v. Union of India, AIR 1995 Del 323.
52 Union of India v. Delhi High Court Bar Association, AIR 2002 SC 1479.
53 Union of India v. Major A. Hussain, AIR 1998 SC 577. See, infra, "Judicial review."

The Supreme Court has ruled in Union of India v. R.K Sharma54 that the
awarding of sentence is within the powers of court martial, and the high court
ought not to interfere with such a matter. A court while exercising powers under
article 226 or 227, or under article 32, cannot interfere with the punishment
awarded by a court-martial on the ground that it is disproportionate. The Supreme
Court has observed on this point:55
It is only in extreme cases which on their face show perversity or

irrationality that there can be judicial review. Merely on compassionate
grounds a court should not interfere.
VI SUB-DELEGATION OF ADMINISTRATIVE POWER
In SMC Students' Parents Association v. Union of India,56 the Karnataka

High Court has reiterated the well established proposition that when a statute
prescribes a particular body to exercise a power, it must be exercised only by
that body; it cannot be exercised by any body else unless the power is sub-
delegated to him. Sub-delegation is possible only when the relevant law provides
for sub-delegation.57
Accordingly, the high court has ruled in SMC that under section 12-A (2)
of the UGC Act, the power to specify the matters in respect of which fees can
be charged, and the scale of fees, lies only with the UGC and that there is no
provision in the UGC Act permitting sub-delegation of this power by the UGC
to anybody else.
VII DISCRETIONARY POWERS
The modern administration is endowed with large discretionary powers

conferred by statutes. A few cases during the year deal with some aspects of the
exercise of such powers.58
The President of a municipality was removed from office. The order was
issued by the Principal Secretary, Dept. of Local Govt., State of Punjab. The
order was challenged through a writ petition under article 226 in the High Court
of Punjab, and, ultimately, the matter came before the Supreme Court.59
The Supreme Court found that the impugned order was "vitiated by
perversity", and quashed the same. The impugned order was based on "non-
existent grounds"; it was vitiated by "colourable exercise of power" and so the
order was thus struck down.60
54 AIR 2001 SC 3053.

55 Id. at 3056. Also see, infra, "Doctrme of proportionality."
56 AIR 2001 Kant 457, 468-69.
57 Marathawada University v. S.B.R. Chavan, AIR 1989 SC 1592.
58 For discussion on these powers, see, Jain, Treatise I, Chs. XVII, XVIII and XIX; Jain, Cases,
II, Chs. XVI, XVII and XVIII.
59 Tarlochan Dev Sharma v. Punjab, AIR 2001 SC 2524.
60 For explanation of these concepts, see, Jain, Treatise, I, 941, 937.

The high-light of the judicial pronouncement in the instant case, however,

is the adverse comments made by the Supreme Court on the present-day
bureaucrat-politician nexus scenario in which the civil servant is prepared to do
the bidding of the politician without demur and this leads to misuse of power
as is evidenced by the present case. The present-day situation has been described
in a study as follows:61
A bureaucratic apparatus is a means of attaining the goals prescribed by

the political leaders at the top. Like Alladin's lamp, it serves the interest
of whosoever wields it... The Ministers make strategic decisions. The
Officers provide trucks, petrol and drivers. They give march orders.
The Minister tells them where to go. The officers have to act upon
instructions from above without creating a fuss about it.
Commenting adversely on the present state of affairs, as stated above, the

Supreme Court has sought to underline the role of the bureaucrats in a democratic
set up. The court has emphasized that in the system of Indian democratic
governance as envisaged by the Constitution, senior officers occupying key
position such as secretaries, are not supposed "to mortgage their own discretion,
volition and decision-making authority and be prepared to give way or being
pushed back or pressed ahead at the behest of politicians for carrying out
commands having no sanctity in law".
The court has reminded the civil servants of their duty in the following
words:61a
The Conduct Rules of Central Government Services command the civil

servants to maintain at all times absolute integrity and devotion to duty
and do nothing, which is unbecoming of a government servant. No
government servant shall in the performance of his official duties, or in
the exercise of power conferred on him, act otherwise than in his best
judgment except when he is acting under the direction of his official
superior.
A statutory authority vested with jurisdiction must exercise it according to

"its own discretion, discretion exercised under the direction or instruction of
some higher authority is failure to exercise discretion altogether".62
The Supreme Court referred to its own observations in an earlier case,
Purtabpur Company Ltd.,63 which the court characterized as "instructive and
apposite". The court has observed:63"
61 Effectiveness of Bureaucracy, Indian 31. Of Public Admn, April-June, 2000, at 165.

61a Supra note 59 at 2531.
62 See, Anirudhsinhji Jadeja v.Gujarat, AIR 1975 SC 2390. On the question of exercise of
discretionary power under dictation, see, Jain, Treatise, I, 972-977; Jain, Cases, II, Ch. XVI.
63 AIR 1970 SC 1896.
63a Id. at 2532.

Executive officers may in exercise of their statutory discretions take

into account consideration of public policy and in some context policy
of Ministers or the Government as a whole when it is a relevant factor
in weighting the policy but they are not absolved from their duty to
exercise their personal judgment in individual cases unless explicit
statutory provision has been made for instructions by a superior to bind
them.
The court passed severe strictures against the officer concerned for passing
the impugned order. The court said: ... we are not recording, for want of adequate
material, any positive finding that the impugned order was passed at the behest
of or dictated by some one else than its author. Yet we have no hesitation in
holding that the impugned order betrays utter non-application of mind to the
facts of the case and the relevant law. The manner in which the power under
Section 1264 has been exercised by the competent authority is suggestive of
betrayal of the confidence which the State Government reposed in the Principal
Secretary in conferring upon him the exercise of drastic power like removal of
President of a Municipality under Section 22 of the Act. To say the least what
has been done is not what is expected to be done by a senior official like the
Principal Secretary of a wing of the State Government. We leave it at that and
say no more on this issue."65
The above observation is a strong indictment of the way in which the
administration presently functions. The instant case vividly depicts the
demoralization which has set in even in the ranks of senior bureaucrats.
Extracts from the Supreme Court judgment have been cited in extenso because
this case underlines the rot which has set in the present day Indian administration.
There exists an unholy nexus between the politician and the bureaucrat and the
bureaucrat has become a willing tool in the hands of the politician in his
unprincipled (and even illegal) exercise of power. Even senior officials feel no
compunction in misusing their statutory powers for pleasing their political masters
with a view to gain their favours.
A strong suggestion was made by the appellant in the case that he was
removed from office because his election did not suit the political bosses of the
officer passing the order. The court, however, avoided giving any definitive
finding on this aspect of the matter as there was not sufficient material to give
any such finding.
The court has now insisted that the officials while exercising the statutory
powers vested in them ought to exercise them in their individual judgment
according to the norms of administrative law rather than dance to the tune of
their political bosses. Otherwise, the whole system will stink not only as illegal
but also as immoral.
In today's India, one of the chief sources of administrative corruption is the
vast discretionary power vested in the officials and the lack of any proper
64 S. 22 of the Punjab Municipal Act, under which the impugned order was passed.

supervisory mechanism to police the exercise of these powers. The courts adopt
a very restrictive role in this area.66
Communication of an order
In State of West Bengal v. M.R. Mondal,61 the Supreme Court has
reiterated the well established proposition that an order passed but retained
in file without being communicated to the person concerned has no force or
authority whatsoever. An uncommunicated order has no valid existence in
the eye of law.
Inquiry commission
An example of exercise of discretionary power is to be found in case of
appointment of an inquiry commission under section 3 of the Commissions of
the Inquiry Act, 1952. Under section 3(1), a government can appoint an inquiry
commission if "it is of opinion that it is necessary to do so" to make an inquiry
into any definite matter of public importance.
The Andhra Pradesh Government appointed an inquiry commission. It was
argued that the state government appointed the Commission without forming
any opinion that it was necessary to do so. The high court did set aside the
appointment of the commission on this ground but, on appeal, the Supreme
Court set aside the high court ruling.68
In the Supreme Court's view, the high court had adopted a 'hyper technical'
view of the matter. The appointment of an inquiry commission is a matter falling
within the discretion of the government. The commission does not adjudicate
upon any matter; it is meant primarily for the purpose of information for the
government. There is no prescribed form for the government to express its
opinion that it is necessary to appoint a commission of inquiry. There was a
serious matter of public importance which was giving rise to criticism from
various quarters which called for a proper inquiry. "It is desirable that activities
of public functionaries be above board and if allegations and criticisms are
received in that regard the matter should be promptly inquired into and appropriate
follow-up action taken".
In T.T. Anthony v. State of Kerala,69 the Supreme Court has clarified that the
report and the findings of the commission of inquiry are meant for the information
of the government. These findings are not binding on the courts or the police.
The duty of the police which is the investigating agency of the state is to act in
accordance with the law of the land.
In a number of earlier cases,70 it has been held by the Supreme Court that
66 For exposition of the scope of judicial review of discretionary decisions, see: Tata Cellular v.
Union of India, AIR 1996 SC II.
67 (2001) 8 SCC 443.
68 R Janardhana Reddy v. State of A.R, AIR 2001 SC 2631.
69 AIR 2001 SC 2637.
70 R.K. Dalmia v. Justice SR Tendolkar, AIR 1958 SC 538; State of Karnataka v. Union of India,
AIR 1978 SC 68; Sham Kant v. State of Maharastra, AIR 1992 SC 1879.

the report of the inquiry commission is of a recommendatory nature and is not

effective proprio vigore.71
Mala fides
The Supreme Court has insisted in London Bros. v. State of West Bengaf2
that government action must be based on utmost good faith and belief and ought
to be supported with reason on the basis of the state of law. If the action is
otherwise, or runs counter to the same, the action cannot but be "ascribed to be
mala fide" and "it would be a plain exercise of judicial power to countenance
such action and set the same aside for the purpose of equity, good conscience
and justice."
In the instant case, without characterizing the state action as mala fide, the
court quashed the action because "it appears prima facie to be tainted with
motive and thus not sustainable".
The Supreme Court has emphasized in M/s Tandon Bros. v. State of West
BengaP that a discretionary power is to be exercised upon materials on record
and not de hors the same. In the instant case, the Supreme Court quashed an
order made by the state government as it appeared prima facie to be "tainted
with motive and, thus, not sustainable. The court observed in this connection:74
Government action must be based on utmost good faith, belief and

ought to be supported with reason on the basis of the state of law - if
the action is otherwise or runs counter to the same the action cannot but
be ascribed to be mala fide and it would be a plain exercise of judicial
power to countenance such action and set the same aside for the purpose
of equity, good conscience and justice. Justice of the situation demands
action clothed with bona fide reason and necessities of the situation in
accordance with the law. But if the same runs counter, law courts would
not be in a position to countenance the same.
In Khanna,15 the Supreme Court has emphasized that a mere allegation of

mala fides is not enough. There should be some definite evidence therefore.
General allegations of personal vendetta without any definite evidence therefor,
General allegations of personal vendelta without any definite evidence therefor
"cannot be said to be a sufficient assertion worth acceptance in a court of law".
There must be positive evidence on record to decry an administrative action on
the ground of mala fides and arbitrariness. The court has observed further in this
connection:76
71 For further discussion on this theme, see, Jain, A Treatise on Admn. Law, I, Ch. XVI; Jain,
Cases and Materials on Admn. Law, II, Ch, XVII.
72 AIR 2001 SC 1866.
On Mala fides, see, Jain, Treatise, 890; Jain, Cases and Materials, II, Ch. XVI.
73 AIR 2001 SC 1866.
74 Id. at 1877.
75 Supra note 36.
76 Id. at 354.

The expression 'mala fide' has a definite significance in the legal

phraseology and the same cannot possibly emanate out of fanciful
imagination or even apprehensions but there must be existing definite
evidence of bias and actions which cannot be attributed to be otherwise
bona fide — actions not otherwise bona fide, however, by themselves
would not amount to be mala fide unless the same is in accompaniment
with some other factors which would depict a bad motive or intent on
the part of the doer of the act.
Article 14 of the Constitution and discretionary powers

Article 14 of the Constitution ordains equality before the law and equal
protection of laws to all in India. Over the years, the Supreme Court has given
a new orientation to article 14 insofar as the court has ruled that arbitrary action
on the part of the administration amounts to denial of equality and hence is void
under article 14.77
Merely because the concerned authority has passed one illegal/unwarranted
order in favour of one person, it does not entitle the court to issue a writ
compelling the authority to repeat that illegality over and over again. By refusing
to direct the authority to repeat the illegality, the court is not condoning the
earlier illegal act/order nor can such illegal order constitute the basis for a
legitimate complaint of discrimination vis-a-vis article 14.78
In Rakesh, a few persons were granted pensionary benefits by erroneous
interpretation of the relevant rules. The respondent also claimed the same benefit.
The court rejected the contention saying that it could not direct the same mistake
to be perpetuated. The court could not direct something to be done which was
contrary to the statutory rules. "In such cases, there is no question of application
of Article 14 of the Constitution". No person can claim any right on the basis
of decision which is de hors the statutory rules nor there can be any estoppel".
In an earlier case, the Supreme Court had observed in this connection:79
If the order in favour of the other person is found to be contrary to law

or not warranted in the facts and circumstances of his case, it is obvious
that such illegal or unwarranted order cannot be made the basis of
issuing a writ compelling the respondent authority to respect the illegality
or to pass another unwarranted order.80
77 E.R Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

See, Jain, Treatise, I, 768-791; Jain, Cases, Ch. XV.
The Supreme Court has observed in Shri Sita Ram Sugar Co. Ltd. v. Union of India, AIR 1990
SC 1277,
1297(- per Thommen, J.):
"Any act of the repository of power, whether legislative or administrative or quasi-judicial
is open to challenge, if it is in conflict with the Constitution or the governing Act or the
general principles of the law of the land, or if it is so arbitrary or unreasonable that no
fair minded authority could ever have made it."
78 Union of India v. Rakesh Kumar, AIR 2001 SC 1877.
79 Chandigarh Administration v. Jagjit Singh, (1995) 1 SCC 745.
80 Also see, Gursharan Singh v. New Delhi Municipal Committee, AIR 1996 SC 1175; M.I.
Builders Pvt. Ltd. v. Radhey Sham, AIR 1999 SC 2468; Om Parkash v. Administrator, Jammu

In Dinesh Engineering^ the railway board rejected a tender and in

justification referred to the guidelines which authorised the railways to reject
any tender offer without assigning any reasons and there was also the power to
accept or not to accept the lowest offer.
The Supreme Court stated that the power ought to be exercised "within the
realm of the object for which the clause is incorporated." Explaining the purport
of the clause above mentioned, the Supreme Court has stated: "This does not
give an arbitrary power to the railways to reject the bid offered by a party merely
because it has that power. This is a power which can be exercised on the existence
of certain conditions which in the opinion of the railways are not in the interest
of the railways to accept the offer".
The court has insisted that in contractual matters, the public authority may
have some discretion but not an "unfettered discretion". The authorities should
follow the norms laid down by the courts while awarding contracts. "This
requirement is necessary to avoid unreasonable and arbitrary decisions being
taken by public authorities whose actions are amenable to judicial review.
Even when the authority has some "elbow room" in accepting offer in
contracts, the same has to be exercised within the four corners of article 14.
In the instant case, the court ruled that the board had acted "arbitrarily" and
"in flagrant violation of the constitutional mandate of Art. 14," in rejecting the
offer of the petitioner.
State of Andhra Pradesh v. G. Ramakishann furnishes an example of
discriminatory administrative action. The State of Andhra Pradesh increased the
amount of stipend for post graduate students of Agricultural University and
those of medical colleges. But the scheme was made applicable from 1.10.1989
in case of medical students and 3.12.1990 in case of agricultural students. The
Supreme Court held this to be discriminatory especially when the government
had always treated all these students at par. The government had placed no
material before the court in support of fixing two different dates for paying the
increased amount to the two stream of students. The action of the state government
was not supported by any rational basis or intelligible differentia.
VIII DOCTRINE OF PROPORTIONALITY
The Supreme Court has discussed the doctrine of proportionality in Om

Kumar v. Union of IndiaP
Municipality, AIR 2001 J&K 77. In Faridabad C.T Scan Centre v. D.G. Health Services, AIR
1997 SC 3801, the Supreme Court has observed:
"We fail to see how Article 14 can be attracted in cases where wrong orders are issued in
favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis
that such wrong orders were earlier passed in favour of some other persons, and, therefore,
there will be discrimination against others if correct orders are passed against them."
81 Union of India v. Dinesh Engineering Corpn., (2001) 8 SCC 491
see, infra, under "Conferment of largess by the state."
82 AIR 2001 SC 324.
On this topic, see, Jain, Treatise, I, 765-791; Jain, Cases and Materials, II, Ch. XV.
83 (2001) 2 SCC 386.
The court had discussed the doctrine earlier in Union of India v. Ganayutham, (1997) 7 SCC 463.

The court has now stated that where administrative action is challenged
under article 14 as being discriminatory, equals are treated unequally or unequals
are treated equally, the question is for the constitutional courts as primary
reviewing courts to consider correctness of the level of discrimination applied
and whether it is excessive and whether it has a nexus with the objective intended
to be achieved by the administrator. Hence the court deals with the merits of the
balancing action of the administrator and is, in essence, applying "proportionality"
and is a primary reviewing authority.
But where administrative action is challenged as "arbitrary" under article
14,84 the question will be whether the administrative order is "rational" or
"reasonable' as the test to apply is the Wednesbury*5 test.
The doctrine of proportionality is of European origin.86 From there it has
migrated to Britain87 and is now applied in some form or other in other common
law countries. The doctrine of proportionality ordains that administrative measures
must not be more drastic than is necessary for attaining the desired result.
The subject of * proportionality' is a big one and needs a full-fledged article
for treatment.88 This is not the place to say more on this subject.
However, one comment needs to be made here on the Supreme Court decision
in Om Kumar. Is it viable to draw a line of distinction between 'discrimination'
and 'reasonableness' for the purpose of the applicability of doctrine of
proportionality? Does not the concept of 'reasonableness' itself imply
'proportionality' ? A failure to maintain a proper balance between various interests
may be struck down both for 'disproportionality' as well as for
"unreasonableness". In both, the courts are bound to assess whether the restriction
is excessive than what the needs of the situation actually demand.
IX GOVERNMENT POLICY
From case to case, the Supreme Court has laid down the proposition that,
ordinarily speaking, it is not normally within the domain of a court to weigh the
pros and cons of the policy or to scrutinize it and test the degree of its beneficial
or equitable disposition for the purpose of varying, modifying and annulling it,
except where "it is arbitrary or violative of any constitutional, statutory or any
other provisions of law".89
Accordingly, when the central government decided to close the Kendriya
Vidyalaya at Jobnez, the high court refused to interfere with the policy decision.
84 Also see, E. P. Royappa v. State of T.N., (1974) 4 SCC 3, supra note 77.
85 Associated Provincial Picture Houses v. Wednesbury Corpn., (1947) 2 All ER 680. For discussion
on the case, see, Jain, Treatise, I, 871, 909,946-950. The test has been adopted in India by the
Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651. For the text of Wednesbury,
see, Jain, Cases and Materials, I, 187,188, 213. Also see, note.
86 Schwarze, European Administrative Law, 680.
87 Wade, Administrative Law, 368-70 (VIII Ed. 2000).
88 For a brief discussion on the doctrine, see, M.P. Jain, A Treatise on Administrative Law, I, 953-
58. Also see, Jain, Cases and Materials on Indian Admn. Law III, 2243-50.
89 State of Punjab v. Ram Lubhaya Bagga, AIR 1998 SC 1703.

The court also rejected the plea that the board of governors of the school should
have given a hearing to the students as well as their parents before closing the
school. It was a "policy decision" of the government and there was no need and
necessity to hear any one.90
Again, the principle of judicial restraint in reviewing government policy has
been expounded by the Supreme Court in Ugar Sugar Works Ltd. v. Delhi
Admn9i In the exercise of their power of judicial review, courts do not ordinarily
interfere with the policy decisions of the government unless the policy can be
faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness
etc. Arbitrariness, irrationality, perversity and mala fides will render the policy
unconstitutional. In the area of economic regulation, there are good reasons for
judicial restraint. The courts do not express any opinion whether the policy
ought or ought not to have been adopted. This matter is best left to the discretion
of the government.
Ordinarily, as stated above, the courts are reluctant to interfere in policy
matters since these matters are usually based on expert knowledge of the persons
concerned and the courts are normally not equipped to question the correctness
of a policy decision. As the Supreme Court has observed in Dinesh92 in support
of the above proposition:93
There is no doubt that this Court has held in more than one case that
where the decision of the authority is in regard to a policy matter, this
Court will not ordinarily interfere since these policy matters are taken
based on expert knowledge of the persons concerned and courts are
normally not equipped to question the correctness of a policy decision.
But, then, the Supreme Court has placed a rider on the above proposition.
This judicial reluctance does not amount to judicial abdication of its review
function in all situations. As the Supreme Court has asserted in Dinesh:94
But then this does not mean that the courts have to abdicate their right
to scrutinize whether the policy in question is formulated keeping in
mind all the relevant facts and the said policy can be held to be beyond
the pale of discrimination or unreasonableness, bearing in mind the
material on record.95
In the instant case, the court quashed the policy decision because it was
taken ignoring certain vital facts, "an ignorance which is fatal to its policy
decision". The court observed:96
90 Parents Teachers v. Chairman, Kendriya Vidyalaya Sangathan, AIR 2001 Raj 35.
91 AIR 2001 SC 1447.
92 Supra note 81. Also see, infra note 137.
93 Id at 498.
95 Ibid
96 Ibid.
For a fuller discussion on article 14, see, Jain, Indian Constitutional Law, Ch. XXI (2002).

Any decision, be it a simple administrative decision or a policy decision,

if taken without considering the relevant facts, can only be termed as
an arbitrary decision. If it is so, then be it a policy decision or otherwise,
it will be violative of the mandate of Article 14 of the Constitution.
The court also stated that the so-called policy suffered from the "vice of
non-application of mind' and, hence, it had to be quashed.97
X PROMISSORY ESTOPPEL
The doctrine of promissory estoppel envisages that if some one acts on a

promise made by the government, then the government cannot go back on its
promise. The doctrine is based in equity in order to protect innocent and
unsuspecting persons from being injured by acting on the promise made by the
government or its officials.98
A few exceptions have been engrafted on the doctrine under discussion.
One of the exceptions is that the plea of promissory estoppel is not available
against the government if it withdraws any exemption granted for a particular
period before its expiry in public interest, because public interest must override
any consideration of private loss or gain.99
A candidate at the 1st year law examination did not get the prescribed pass
marks and, thus, failed the examination, but in the marks sheet he was shown
to have been promoted. The question was raised in the case noted below100
whether the university was bound to declare him as having passed the
examination? Was the doctrine of promissory estoppel applicable against the
university in such a situation?
The Allahabad High Court ruled that in the specific situation, the doctrine
of promissory estoppel could not be applied. A university ordinance provides for
the minimum pass marks to be obtained by a candidate to pass the examination
and there can be no estoppel against the statutory provision. The high court
invoked the ruling of the Supreme Court in Union of India v. Goodfrey Philips
India Ltd.m where the apex court has held that promissory estoppel cannot be
used to compel the government or a public authority to carry out a representation
or promise, which was contrary to law, or which was outside the authority or
power of the government or the concerned officer or the public authority to
make any such promise. Promissory estoppel being an equitable doctrine, it
must yield whenever equity so requires.
97 For the concept of "non-application of mind", see, supra note 60.

98 See, for example, M.R Sugar Mills v. State of Uttar Pradesh, AIR 1979 SC 625 at 642.
99 M/s Laxmi Udyog Rock Cement Pvt. Ltd. v. State of Orissa, AIR 2001Ori 51.
In support of its ruling, the high court cited the Supreme Court case Sales Tax Officer v. Shree
Durga Oil Mills, AIR 1998 SC 591.
100 Vice-Chancellor, University of Allahabad v. S.R Ratnakar, AIR 2001 All 319.
101 AIR 1986 SC 806.

XI JUDICIAL REVIEW
Article 227
The Supreme Court has taken an opportunity in State of Maharashtra v.
Milind102 to clarify the scope of the power of the high court under article 227.
The power of high court while exercising the power of judicial review under
article 227 against an order of an inferior tribunal is not appellate but of
supervisory nature. The high court would be justified in interfering with the
conclusion of the tribunal only when it records a finding that the inferior tribunal's
conclusion is based upon exclusion of some admissible evidence or consideration
of some inadmissible evidence or the inferior tribunal has no jurisdiction at all
or that the finding is such, which no reasonable man could arrive at, on the
materials on record.103
Article 226
As usual, there are a number of cases reported during the year on article
226, but they are all of a routine nature reiterating the well-established proposition
of law. No new proposition concerning article 226 seems to have been laid down
during the year. Reference may, however, be made to a few pronouncements
concerning the writ jurisdiction of the high courts.
In Dinesh Chandra Gahtori v. Chief of Army Staff,104 the Supreme Court
has ruled that the Chief of Army Staff may be sued anywhere in the country. In
the instant case, court-martial proceedings against the appellant were conducted
in the State of Punjab. The Supreme Court has ruled that dismissal of the writ
petition filed by the appellant before the Allahabad High Court, on the ground
of lack of territorial jurisdiction, was not justified.
While the general proposition is that a high court does not entertain a writ
petition under article 226 to enforce purely a contractual matter because it raises
questions of fact,105 it cannot be laid down as a general proposition of law that
in no case a high court can entertain a writ petition to enforce a claim under a
life insurance policy.106 This is in view of the fact that the scope of article 226
is wide and expansive and the Constitution in no way fetters the exercise of
extraordinary jurisdiction under article 226. The Supreme Court has, however,
refused to enumerate exhaustively the circumstances as to when a claim under
an insurance policy can, or cannot, be entertained through a writ petition.
Ordinarily, a high court does not exercise its writ jurisdiction if an alternative
remedy is available to the petitioner. But this is a self imposed rule which does
not affect the high court's jurisdiction. In Baxiym the Supreme Court by-passed
102 AIR 2001 SC 393.

103 Id. at 408.
Also see, Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97.
104 (2001) 9 SCC 525.
105 See, infra "Conferment of largess by the state".
106 UC of India v. Asha Goel, AIR 2001 SC 549.
107 J.M. Baxi & Co. v. Commr. of Customs, (2001) 9 SCC 275.

this rule because in the instant case, recourse to alternative remedy was onerous
as it involved depositing a huge sum of money amounting to Rs.46 lakhs and
the demand itself was barred by limitation. The Supreme Court ruled that
interference by the high court on merits was necessary in spite of the availability
of an alternative remedy.
Then comes the question of locus standi to file a writ petition. In Vinoy
Kumar v. State of Uttar Pradesh,m the Supreme Court has clarified that, generally
speaking, a person has no locus standi to file a writ petition if he is not personally
affected by the impugned order, or there is an imminent danger of his rights
being invaded. The relief under article 226 is based on the existence of a right
in favour of the person invoking the jurisdiction under article 226. There are,
however, a few exceptions to this general rule of locus standi, e.g.:
(i) where a petition is filed for the issue of a writ of habeas corpus or
certiorari; and
(ii) a public interest litigation writ petition is filed.109
The court has clarified that the general rule of locus standi, as stated above,
is a matter of prudence.
Article 32
At times, the Supreme Court has used its jurisdiction under article 32 to
issue directions of a general nature because, on the specific matter before the
court, there exist no statute or statutory rules and the matter being of general
public interest, some guidelines are necessary to regulate the same.
An instance of the above is Vishwa Jagriti Mission v. Central Government"0
where the Supreme Court has issued general guidelines to curb the practice of
ragging in educational institutions.
It may be noted that the guidelines issued by the court may be characterized
as 'quasi-legislation' in nature. The directions issued by the Supreme Court are
binding because, under article 144 of the Constitution, all authorities, civil and
judicial, in the territory of India shall act in aid of the Supreme Court. Under
article 141, the law declared by the Supreme Court is binding on all courts
within the territory of India. Over all the Supreme Court has, under article 129,
has power to punish for its contempt.
Mandamus
Parliament enacted the Delhi Rent Bill, 1995, which received the assent of
the President on the 23.8.1995 and was published as the Delhi Rent Act, 1995.
But the Act has not been brought into force so far by the central government.
Consequently, in Common Cause v. Union of India,111 a writ of mandamus was
108 AIR 2001 SC 1739.

109 For "Public Interest Litigation", see, infra at 24-25.
110 (2001) 6 SCC 577; also, (2001) 6 SCC 581.
111 AIR 2001 Del 93.

sought from the Delhi High Court directing the central government to bring the
Act into force.
The court negatived the request for mandamus citing in support A.K. Roy v.
Union of India.U2 The Supreme Court had observed therein that in the absence
of any objective norms, it was not for the court to substitute its own judgment
for that of the government. The court had also emphasized that the executive
being responsible to Parliament, if Parliament "considers that the executive has
betrayed its trust'* by not bringing the Act into force, it can censure the
executive.113
The court referred to a recent English case decided by the House of Lords,
viz., R. v. Secretary of State for the Home Department, Fire Brigades Union.114
In the instant case, power was given to the Secretary of State to appoint a day
for bringing the Criminal Justice Act, 1988, into force. The Act was not brought
into force and the matter came before the House of Lords. The question before
the House was whether the Secretary of State had acted unlawfully in not bringing
the Act into force. The House ruled by majority that the Act in question conferred
a legislative power (as distinguished from a duty) and that any intervention by
the courts would not be appropriate. The House however, held that the Secretary
of State could not unreasonably refuse to bring the relevant provisions of the
said Act into force.
The Kerala High Court has reiterated, in the case noted below,115 the
proposition that contractual obligations are matters of private law and are
enforceable by such remedies as damages, injunctions, specific performance and
declarations but not by mandamus.116 Mandamus is used to enforce the
performance of public duties by public authorities; "the essence of mandamus
is that it is a command ordering the performance of a public legal duty."117
Ordinarily, mandamus is not issued to order refund of money even though
it may have been collected illegally. But, there may arise a case where the court
may deem it fit to issue mandamus for the purpose.
One such example is to be found in U.P. Pollution Control Board v. Kanoria
Industrial Ltd.,m where collection of water cess was found to be unconstitutional.
The court ordered refund of the cess collected for the following reasons: (1) no
facts were in dispute in the instant case; (2) cess was paid under protest; (3) there
112 AIR 1982 SC 710.

113 This proposition has been reiterated by the Supreme Court in Altemesh Rein v. Union of India,
AIR 1988 SC 1768.
The ruling in Supreme Court Legal Aid Committee v. Union of India, (1998) 5 SCC 762,
appeared to be somewhat at variance with the earlier rulings mentioned above. But the Delhi
High Court distinguished the case and confined it to its own specific facts.
114 [1995] 2 All ER 244.
115 State of Kerala v. K.RW. S.W.L.C Coop. Socy. Ltd., AIR 2001 Ker 60.
116 In support of this proposition, the Kerala High Court cited, inter alia, the following cases:
Kerala State Electricity Board v. Kurien K. Kalathil, AIR 2000 SC 264; Noida Entrepreneurs
Assn. v. U.P Financial Corpn., (1994) Supp (2) SCC 108; Life Insurance Corpn. of India v.
Esscorts Ltd., AIR 1986 SC 1370.
But see, infra, "Conferment of largess by the state".
117 Also, Wade and Forsyth, Admn. Law 641 (VII Ed.).
118 AIR 2001 SC 787.

was no laches on the part of the petitioner; (4) There was no case of undue
enrichment.
The A.P. High Court has reiterated the well established proposition that
mandamus cannot be issued to direct the legislature to enact a law on a particular
subject, nor to direct a delegated legislative authority to makes rules in furtherance
of a statutory provision. Accordingly, the high court has refused to issue mandamus
to the State Government to provide for a policy of reservation in view of the fact
that article 16(4A) of the Constitution is an enabling provision.119 If the state
makes no reservation, the high court has no jurisdiction under article 226 of the
Constitution to issue any direction therefore.120
Quo warranto
When the governor of a state appoints a person as chief minister who is not
qualified, or is disqualified, to be a member of the state legislature, there is
violation of article 164 of the Constitution. Therefore, the authority of the appointee
to hold the said office through a quo warranto petition can be questioned.
Although, under article 361 of the Constitution, the governor enjoys immunity
from being sued in a court, this immunity does not extend to his appointee.
The Supreme Court has clarified the nature and scope of quo warranto in
B.R. Kapur v. State of Tamil Nadu.m When an application for issue of quo
warranto is being considered by the court, the governor is not being made
amenable to the jurisdiction of the court. It is the appointee whose duty it is to
satisfy the court about his eligibility to hold the office and that there has not
been any illegal usurpation of public office. From this view of the matter, there
would be no infraction of article 361.
The basic purpose of quo warranto is to protect the public from an illegal
usurpation of a public office by an individual. The necessary ingredients to be
satisfied before quo warranto may be issued are:
(i) the office in question is a public office;
(ii) it is -created by the Constitution or the law;
(iii) the person is not legally qualified to hold the said office.
Public interest litigation

PIL has come to occupy a very significant place in the justice delivery
system in India. PIL is used as a means to ventilate public grievances against the
119 Art., 16(4A) runs as follows:

"Nothing in this Article [Art, 16] shall prevent the State from making any provision for
reservation in matters of promotion of any class or classes of posts in the services under the
state in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the
State are not adequately represented in the services under the State."
120 A.P Sarpanch Association v. Govt of A.P, AIR 2001 AP 474.
In support of its view, the high court referred to the following cases:
Rajender Singh v. Santa Singh, AIR 1973 SC 2537, Union of India v. Deoki Nandan Aggarwal,
AIR 1992 SC 96; State ofJ&K v. A.R. Zakki, AIR 1992 SC 1546; State of Karnataka v. State
ofA.P, AIR 2001 SC 1560; Ajit Singh v. State of Punjab, AIR 1999 SC 3471; Andhra Bank
Scheduled Tribe Employees Welfare Association v. Andhra Bank, 2001 (3) ALT 349.
121 112 (2001) 7 SCC 231.

administration as well as to seek judicial review of administrative action. PIL

has also been used to resolve through the court many knotty problems of
constitutional law. PIL has served the great purpose of instilling some
accountability, responsibility and transparency in an inert bureaucratic culture in
the country. But, then, there are examples of the PIL being misused by
unscrupulous persons for their own selfish ends.
During the year under review, in Delhi Municipal Workers Union v. Delhi
Municipal Corp.,122 the Delhi High Court has had occasion to comment on the
institution of PIL. The main theme of these comments is to emphasize that PIL
is not "private interest litigation". There must be a real and genuine public
interest involved in PIL. It cannot be invoked by a person or a body of persons
for his or their personal causes or satisfy his or their personal grudge and enmity.123
The high court has observed that a writ petitioner who comes to the court for
relief in public interest must come not only with clean hands like any other writ
petitioner but also with a clean heart, clean mind and clean objective.
In the instant case, DMC Workers Union filed a PIL writ petition to question
the award of a contract to a party by the DMC. The high court dismissed the
petition mainly on two grounds:
(1) the competing tenderers have not raised any grievance about the
modalities observed and adopted by the DMC;
(2) there was no flaw in acceptance of the tender in question.124
XII OMBUDSMAN FOR LOCAL SELF-GOVERNMENT BODIES
The State of Kerala has created a very interesting institution, viz. Ombudsman
for Local Self Government (LSG) bodies. The object of the ombudsman is 'to
conduct a detailed inquiry regarding any proceedings of the LSG bodies and the
public servants holding office thereunder concerning corruption, maladministration
or defects in the administration and settle such complaints.'*
The authority known as Ombudsman is to consist of seven persons as follows:
(1) a person who is or has been a high court Judge; (2) two district judges;
(3) two government officials not below the rank of government secretary; (4) two
"honest and respectable" social service workers. Adequate provisions heave been
made in the relevant Act to ensure their independence and objectivity.
The institution has been created on the recommendation of the Sen
Committee. The committee suggested that while tribunals would adjudicate upon
appeals from decisions taken in exercise of regulatory authority, there should be
an institution "to investigate the field of administrative activity, i.e. to investigate
independently complaints from individuals and groups and even the government
122 AIR 2001 Del 68.

123 The high court referred to the following Supreme Court cases: Janata Dal v. H.S. Chowdhury,
AIR 1993 SC 892; Kazi Landup Dorji. v. Central Bureau of Investigation, (1994) Supp (2)
SCC 116; Ramjas foundation v. India, AIR 1993 SC 852; K.P Sriniwas v. RM. Premchand,
(1994) 6 SCC 620.
124 Also see, M.C. Mehta v. Union of India, AIR 2001 SC 1544.

relating to defective administration by the local bodies". In the words of the

committee:[24a
Ombudsman can go into the reasonableness of a decision. Ombudsman

can follow up complaints, which relate to action or inaction. It can also
take up matters relating to internal administration, which need not
necessarily affect any individual's interest. The Ombudsman system
goes beyond the judicial process, as after redressal of a grievance it can
choose to monitor the behavior of the local authority concerned and it
can point out systemic deficiencies and suggest improvements.
The Ombudsman system thus lies outside the court system. Its main objectives
are two: (1) redressal of grievances of people against maladministration of the
LSG bodies; (2) supervisory so as to spot systemic deficiencies and suggest
improvements.125
There is need for other states to emulate the Kerala system. Local bodies
which are immediately in contact with the people are in very bad shape. Their
administration needs to be improved if they have to serve the people well. The
Kerala system may go a long way to improve the administration by local bodies.
The matter raised here has in reality a much wider dimension. As early as
1967, the Administrative Reforms Commission chaired by Shri Morarji Desai
had recommended the Ombudsman type institution on a national level to redress
grievances of the people against the central administration.126 Even after nearly
40 years, no such institution is on the horizon. It is time that such an institution
be established at the central level as well as in each state. In the absence of such
a supervisory mechanism, the gap is being filled to some extent by PIL which
has grown immensely over the years throwing a load of work on the high courts
and the Supreme Court.127
XIII CONFERMENT OF LARGESS BY THE STATE
It is a well-settled principle in India that the state cannot act in an arbitrary

or discriminatory manner in the matter of conferring, or not conferring, benefits
on individuals and that the distribution of the largess should be reasonable. The
government must keep in view the principles laid down in article 14 while
accepting or refusing a tender. This principle has been applied by the courts in
a large number of cases.128
The Supreme Court has again reiterated these propositions in Centre for
Public Interest Litigation v. Union of India.129
124a See infra note 125 at 150.

125 For further details of the system, see, Thoppil Sreekumax v. State of Kerala, AIR 2001 Ker
140.
126 M.R Jain, Lokpal - Ombudsman.
127 See supra under PIL.
128 See, Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 SC 1031; Tata Cellular v.
Union of India, AIR 1996 SC 11.
129 AIR 2001 SC 80.

In the area of exercise of power by governmental authorities to award

contracts, the function of the courts is to prevent arbitrariness and favouritism
and to ensure that the power is exercised in public interest and not for a collateral
purpose.130 A government decision awarding a contract can be quashed under
article 226 by a high court if the decision-making process is vitiated by
arbitrariness, unfairness, illegality and irrationality.
The Indian Oil Corporation issued a letter of intent to the petitioner allotting
a petrol pump to him. Later, the corporation cancelled the letter of intent. The
Patna High Court quashed the order of cancellation under article 226 for several
reasons,131 e.g.: (1) No reasons were given for making the order;132 (2) no
information has been given to the court as to why the letter of intent has been
cancelled;133 (3) in the absence of any material supporting the order, it must be
presumed134 to the arbitrary. Arbitrariness is anathema to law. The court maintained
that over time judicial interference with government action with respect to
contractual matters has been on the increase. When the matter falls within the
realm of public law rather than of private law, the high court can take cognizance
of the same under article 226.135 Government or its agencies must act fairly even
in contractual matters.136
In Dinesh^1 the Railway Board rejected the tender of the respondent. The
Supreme Court ruled that the board had acted arbitrarily and without applying
its mind while doing so. The Supreme Court characterized it as a "flagrant
violation of the constitutional mandate of Art. 14." In the instant case, there was
a clause in the guidelines issued along with the tender saying that the railway
was entitled to reject any tender offer 'without assigning any reasons'. So, it was
argued that the railway had power to accept or not to accept the lowest tender.
But the court said as regards this clause that" a public authority even in contractual
matters should not have unfettered discretion and in contracts having commercial
element even though some extra discretion is to be conceded in such authorities,
they are bound to follow the norms recognized by courts while dealing with
public property. This requirement is necessary to avoid unreasonable and arbitrary
decisions being taken by public authorities whose actions are amenable to judicial
review".
The court has stated further in this connection that merely because the
authority has certain elbow room available for use of discretion in accepting
130 Tata Cellular v. Union of India, AIR 1996 SC 11; Air India Ltd. v. Cochin International
Airport Ltd, AIR 2000 SC 801; M/S Asian Techs Ltd. v. State of Kerala, AIR 2001 Ker. 388.
131 Alok Prasad Varma v. Union of India, AIR 2001 Pat 211.
132 Manager, Govt. Branch Press v. D.B. Belliappa, AIR 1979 SC 429; Khudi Ram v. State of
West Bengal, AIR 1975 SC 550; Sardar Govindrao v. State ofMadhya Pradesh, AIR 1965 SC
1222; Union of India v. M.L. Capoor, AIR 1974 SC 87.
133 Manager, Govt. Branch Press v. D.B. Belliappa, AIR 1979 SC 429.
134 See, E.P. Royappa v. State ofTN., AIR 1974 SC 555; Maneka Gandhi v. Union of India, AIR
1978 SC 597; Ajay Hasia v. Khalid Mujib; AIR 1981 SC 487.
135 Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979; LIC of India v.
Escorts Ltd., AIR 1986 SC 1370,
136 Mahabir Auto Stores v. Indian Oil Corp, AIR 1990 SC 1031.
137 Union of India v. Dinesh Engineering Corporation, (2001) 8 SCC 491.

offer in contracts, the same will have to be done within the four corners of the
requirements of law, especially article 14 of the Constitution.
In the instant case, the decision of the Railway to deny contract to the
tenderer was quashed as being "arbitrary".138
When tenders are invited for execution of a work, the contract is awarded
to the lowest tenderer, which is in public interest. The principle of awarding
contract to the lowest tenderer applies when all things are equal. The tender
system eliminates favoritism and discrimination in awarding public works. It is
also in public interest to adhere to the rules and regulations subject to which
tenders are invited.
Ignoring the instructions subject to which the tenders are invited would
encourage and provide scope for discrimination, arbitrariness and favouritism
"which are totally opposed to the Rule of Law and our constitutional values".
The very purpose of issuing rules/instructions is to ensure their enforcement
lest "the Rule of Law should be a casualty". "Merely because a bid is the lowest
the requirements of compliance of rules and conditions cannot be ignored".
Also, the concerned authority is not obliged to award contract to a tenderer at
the quoted price bid. The authority can always negotiate with the next tenderer
(in case the lowest tender is out for any reason) for awarding the contract on
economically viable price bid.139
The apex court had ruled in Ramana v. International Airport Authority140
that the terms and conditions issued in the advertisement inviting tenders cannot
be altered to the advantage of a particular person having regard to the fact that
if such favourable term and conditions had been known to all other participants,
they would have participated in the tender.
Applying this principle, the A.R High Court quashed award of a contract in
S.Y. Nawab v. Municipal Cornpn. of Hyderabad.141 The committee awarded the
contract to the second respondent with a view to help him throwing all norm to
the winds. The condition advertised were revised to help the second respondent
without advertising the same. The action of the committee was held to be arbitrary.
The high court admonished the committee that in future it "shall issue
advertisement clearly laying down the norms thereof in order to enable all the
eligible persons to take part in the tender.142
XIV SALE OF GOVERNMENT PROPERTY
The basic principle is that a public authority does not have an open-end
discretion to dispose of its property at whatever price it likes. The principle is
that the sale should take place openly and the effort should be to get the best
price. The several methods, which can be employed for this purpose, are: (1) public
138 Id. at 500.

Also see, supra, under "Article 14 and discretionary power."
139 West Bengal Electricity Board v. Patel Engg. Co. Ltd., AIR 2001 SC 682.
140 AIR 1979 SC 1628. Also see, GJ. Fernandez v. State of Karnataka, AIR 1990 SC 958.
141 AIR 2001 AP 403.
142 Id. at 406.

auction; (ii) inviting tenders for the property. As the Supreme Court has observed
in State of Uttar Pradesh v. Shiv Charan Sharma: 143 Public auction with open
participation and a reserved price, guarantees public interest being fully
subserved." In the instant case, the Supreme Court has laid down that mineral
rights ought not to be granted through private negotiations but by holding a
public auction where those interested in the matter may bid against each other.
In Haji T.M. Hassan v. Kerala Financial Corpn.,144 the Supreme Court has
emphasized that public property owned by the state or its instrumentality should
be sold generally by public auction or by inviting tenders. Observance of this
rule not only fetches the highest price for the property but also ensures fairness
in the activities of the state and public authorities. There should be no suggestion
of discrimination, bias, favoritism or nepotism. But there may be situations
when departure from this rule may become necessary. However, such situations
must be justified by compulsions and not by compromise. It must be justified
by compelling reasons and not by just convenience.
Balco,U5 is the latest pronouncement of the Supreme Court on the question
of disposal of government property. 51 percent equity in Balco, a government
undertaking, was sold to a private company by inviting tenders through global
advertisement. The sale was challenged on various grounds but the Supreme
Court rejected all the contentions and upheld the sale. The following three main
propositions emerge from the court decision:
(1) Divestment by the government in a public enterprise is a matter of

economic policy, which is for the government to decide. The court
does not interfere with economic policies unless there is a breach
of law.146
(2) Sale of an undertaking to the highest bidder after global
advertisement inviting tenders at a price which was way above the
reserve price fixed by the government could not be said to be
vitiated in any way. The procedure followed was proper.
(3) The matter of fixation of the reserve price being a question of fact,
the court does not interfere unless the methodology adopted for the
purpose is arbitrary.
XV TORTIOUS LIABILITY OF GOVERNMENT
HIV infected blood was transfused in a woman patient in a hospital because

of the negligence of the hospital staff. The woman claimed compensation through
a writ petition under article 226. The hospital was run by a government
corporation.
143 AIR 1981 SC 1722.

144 AIR 1988 SC 157.
145 Balco Employees Union (Regd.) v. Union of India; judgment delivered by the Supreme Court
on 10.12.2001; reported in AIR 2002 SC 350.
146 See in this connection, supra, "Government policy."

The Andhra Pradesh High Court held in M. Vijaya v. Chairman and Managing
Director, Singareni Collories Co. Ltd.147 that the writ petition was maintainable.
The court referred to article 21 of the Constitution, which guarantees a dignified
human existence to the Indians and not a mere animal existence. Article 21
confers a right to enjoy all faculties of life. It casts an obligation on the state to
protect and preserve human life.148
The high court has taken note of several Supreme Court cases in which the
principle has now become established that when a person's fundamental right is
infringed, he has a public law remedy of seeking compensation from the State
and this public law remedy is in addition to the private law remedy of a civil
suit for tortious damages.149 Accordingly, the high court directed payment of Rs.
one lac to the petitioner by way of compensation as a public law remedy. This
is in addition to whatever compensation may be granted to her in a civil suit.
The highlight of the high court judgment, however, is the discussion by the
court of the dangers of the emerging menace of HIV in India. The court has also
issued several directions with a view of better management and control of AIDS
in the state. The high court has also taken note of several Supreme Court/high
court cases in which the question of legal position of AIDS patients has been
discussed.150
XVI ADMINISTRATIVE CORRUPTION
Unfortunately, administrative corruption has become a way of life in India.

It is eating into the vitals of the society. But, unfortunately, there seems to be
a lack of will and commitment on the part of the Administration to fight corruption
among its ranks.
The main legal instrument to fight corruption is the Prevention of Corruption
Act, 1988(PCA). But before a criminal prosecution of a government servant can
be launched under the Act for corruption, it is necessary to seek government's
sanction for prosecution. Cases have come before the courts where grant of
sanction has taken more than 12 years. One such case reported in the year 2001
is Mahendra Lai Das v. State of Bihar.151
A FIR was registered against an executive engineer, Public Engineering
Dept., on 20.5.1988 under section 5(2) of PCA. Despite the lapse of 12 years,
no sanction of the government for prosecution was received. There was no
explanation for such a long delay in granting sanction for prosecution of the
concerned officer.
147 AIR 2001 AP 502.

148 Vincent Panikulangara v. Union of India, AIR 1987 SC 990; State of Punjab v. M.S. Chawla,
-AIR 1997 SC 1225; Pt. Parmananda Kataria v. Union of India; AIR 1989 SC 2039.
149 See, Rudul Shah v. State of Bihar, AIR 1983 SC 1986; D.K. Basu v. State of West Bengal, AIR
1997 S C 610; Chairman, Rly. Board v. Chandrima Das, AIR 2000 SC 988.
150 See, for instance, Mohan Patnaik v. Govt. ofA.P.; (1997) Andh L T 504; Lucy R.D' Sauza v.
State ofGoa, AIR 1990 Bom 355; Mx of Bombay Indian Inhabitant v. M/s Z.Y., AIR 1997
Bom 406; Mr. X v. Hospital lZ\ AIR 1999 S C 495.
151 AIR 2001 SC 2989.

The Supreme Court quashed the FIR. Such a long delay in granting sanction
amounted to the violation of right of life and liberty as enshrined in article 21
of the Constitution.152
The prosecution has miserably failed to explain the long delay in granting
sanction for the prosecution of the writ petitioner. In cases of corruption, the
Supreme Court has insisted, "speedy justice is the mandate of the Constitution
being in the interests of the accused as well as that of society. Cases relating to
corruption are to be dealt with swiftly, promptly and without delay/153
Accordingly, the proceedings against the petitioner were quashed, as
permitting further prosecution would be "travesty of justice".
Under section 197 of the Code of Criminal Procedure, 1974, sanction of the
government is required before a public servant can be prosecuted under section
5(2) and 5(1) (d) of the Prevention of Corruption Act.
The Supreme Court has explained the meaning and purport of section 197
in PK. Pradhan v. State of Sikkim.154 section 197 uses the words "any offence
alleged to have been committed by him while acting or purporting to act in the
discharge of his official duty". This means that the offence alleged to have been
committed must have something to do, or must be related in some manner, with
the discharge of official duty.
No question of sanction can arise under section 197, unless the act complained
of is an offence. The main question to determine is whether it was committed
in the discharge of official duty. Thee must be a reasonable connection between
the act and the official duty. The Supreme Court has observed in this connection:155
What a Court has to find out is whether the act and the official duty are
so inter-related that one can postulate reasonably that it was done by
the accused in the performance of official duty, though, possibly in
excess of the needs and requirements of the situation.
The question of the scope of section 197, Cr PC, has been discussed by the
Supreme Court in several earlier cases.156 After referring to these cases, the court
has observed in Pradhan that for claiming protection under section 197 of the
Code, it has to be shown by the accused that there is reasonable connection
between the act complained of and the discharge of official duty.
152 Under art 21, it has been held that every person has aright to speedy trial of the case pending
against him.
See, Abdul Rehman Antulay v. R.S. Nayak, AIR 1992 SC 1701.
For discussion on Art. 21, see, Jain, Indian Constitutional Law, Ch. XXVI (2002).
153 AIR 2001 SC at 2991.
Also see, Ramanand Chaudhary v. State of Bihar, AIR 1994 SC 948.
154 AIR 2001 SC 2547.
155 Id. at 2550.
156 Shreekanth Ramayya Munipalli v. State of Bomaby, AIR 1955 SC 287; Amrik Singh v. State
ofPepsu, AIR 1955 SC 309; Malajog Dubey v. H.C Bhari, AIR 1956 SC 44; Baijnath Gupta
v. State ofM.P. AIR 1966 SC 220; Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bushan,
AIR 1998 SC 1524; Abdul Wahab Ansari v. State of Bihar, AIR 2000 SC 3187; K Satwant
Singh v. State of Punjab, AIR 1960 SC 266.

The question of sanction can be raised at any time-immediately after

cognizance or framing of charge, or even at the time of conclusion of trial and
after conviction as well.
Section 197, Cr PC, touches the jurisdiction of the court itself. It is a
prohibition imposed by the statute.
XVII RIGHT TO INFORMATION
A democratic government must be an open government. Openness promotes

'accountability'-another attribute of a democratic government. An informed public
opinion is the ultimate check on maladministration and administrative corruption.
With this in view, several democratic countries have enacted Right to Information
Acts.157
As usual, India lags behind in this area. But, it seems that the courts are
taking initiative in promoting the right to information.
During the year, the Delhi High Court has ruled in Association for Democratic
Reforms v. Union of India™ that the right to information arises from 'the freedom
of speech and expression' guaranteed by article 19(l)(a) of the Constitution. The
high court has observed in this connection:159
Article 19(l)(a) of the Constitution confers on a citizen right to freedom

of speech and expression. It comprehends right to know right to receive
information regarding matters of public concern. The right also emanates
from the preamble to our Constitution which secures to all its citizens
liberty of thought and expression.
On appeal, the Supreme Court has now accepted the view of the Delhi High
Court, stated above, in Union of India v. Association for Democratic Action.m
The case will be taken note of in detail in the Survey of the year 2002.
It may be hoped that the government-both central and state-would take
steps to make the people enjoy the right effectively and efficiently.
157 As early as 1966, the USA enacted the Freedom of Information Act; Canada has the Access
of Information Act, 1982. Australia also has enacted the Freedom of Information Act, 1982.
For discussion on these Acts, see, P. Bayne, Freedom of Information (1984).
158 AIR 2001 Del 128.
159 Id. at 135.
Also see, State of U.P. v. Raj Narain AIR 1975 SC 865; Secretary, Ministry of Information
and Broadcasting, Govt, of India v. Cricket Association of Bengal, AIR 1995 SC 1236; S.P
Gupta v. Union of India, AIR 1982 SC 149.
160 AIR 2002 SC 350.

Administrative Law

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Administrative Law

Hochgeladen von

Copyright:

Verfügbare Formate

1

* Professor of Law (Retd.).

www.ili.ac.in The Indian Law Institute

Ultra vires rules

3 AIR 2001 SC 1885.

www.ili.ac.in The Indian Law Institute

Ill ADMINISTRATIVE DIRECTIONS

The government has power to issue administrative directions governing the

www.ili.ac.in The Indian Law Institute

It is a well established proposition of administrative law that the civil rights

11 Narendra Kumar Maheshwari v. Union of India, AIR 1989 SC 2135.

www.ili.ac.in The Indian Law Institute

It is a fundamental requirement of law that the doctrine of natural

In a case where disciplinary authority disagrees with the enquiry officer

19 Supra note 18 at 32.

www.ili.ac.in The Indian Law Institute

In State of Uttar Pradesh v. Harendra Arora23 the Supreme Court has

23 AIR 2001 SC 2319.

www.ili.ac.in The Indian Law Institute

the findings are based on no evidence. The adequacy or inadequacy of evidence

The test, therefore, is as to whether a mere apprehension of bias or

The court has observed that administrative action cannot be sustained if

www.ili.ac.in The Indian Law Institute

www.ili.ac.in The Indian Law Institute

Consistency is the corner stone of the administration of justice. It is

www.ili.ac.in The Indian Law Institute

Debt recovery tribunal

www.ili.ac.in The Indian Law Institute

It is only in extreme cases which on their face show perversity or

VI SUB-DELEGATION OF ADMINISTRATIVE POWER

In SMC Students' Parents Association v. Union of India,56 the Karnataka

VII DISCRETIONARY POWERS

The modern administration is endowed with large discretionary powers

54 AIR 2001 SC 3053.

www.ili.ac.in The Indian Law Institute

The high-light of the judicial pronouncement in the instant case, however,

A bureaucratic apparatus is a means of attaining the goals prescribed by

Commenting adversely on the present state of affairs, as stated above, the

The Conduct Rules of Central Government Services command the civil

A statutory authority vested with jurisdiction must exercise it according to

61 Effectiveness of Bureaucracy, Indian 31. Of Public Admn, April-June, 2000, at 165.

www.ili.ac.in The Indian Law Institute

Executive officers may in exercise of their statutory discretions take

www.ili.ac.in The Indian Law Institute

www.ili.ac.in The Indian Law Institute

the report of the inquiry commission is of a recommendatory nature and is not

Government action must be based on utmost good faith, belief and

In Khanna,15 the Supreme Court has emphasized that a mere allegation of

www.ili.ac.in The Indian Law Institute

The expression 'mala fide' has a definite significance in the legal

Article 14 of the Constitution and discretionary powers

If the order in favour of the other person is found to be contrary to law

77 E.R Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

www.ili.ac.in The Indian Law Institute

In Dinesh Engineering^ the railway board rejected a tender and in

VIII DOCTRINE OF PROPORTIONALITY

The Supreme Court has discussed the doctrine of proportionality in Om

www.ili.ac.in The Indian Law Institute

www.ili.ac.in The Indian Law Institute

www.ili.ac.in The Indian Law Institute

Any decision, be it a simple administrative decision or a policy decision,

The doctrine of promissory estoppel envisages that if some one acts on a

97 For the concept of "non-application of mind", see, supra note 60.