Evolution and Scope of Administrative Law

a. Nature, Scope and Development of Administrative Law

Meaning and Nature of Administrative Law

 Admin law is a branch of public law , Body of law that regulates the exercise of
power and making of decisions by:
- Executive arm of government
- Administrative arm of government
- Non-government bodies

 It is Branch of public law dealing with:

- Actual operations of government and administrative processes and impact on citizens
- Making of decisions that affect rights, interests and legitimate expectations of citizens
- Carrying out of public works and management and provision of public services,
- Regulating that process –

 ‘Old Administrative Law’ is Common law entirely concerned with judicial review.
‘New Administrative Law’ Primary concern with administrative review, Provision for
statutory form of judicial review; Also concerned with: Human rights , Complaint
handling , Privacy and information,
 Constitutional law concerned with validity of laws - Administrative law concerned
with validity of decisions and actions of executive government under valid laws –
 Separation of powers - allows judiciary to review: Validity of laws (Constitutional
Law) Decisions and actions of executive (Administrative Law). Judicial review: to see
if it was legally made whereas Extra-judicial is broadly to see if the correct and
preferable decision was made Review is broadly distinguished from the appeal
process
 Purpose of Administrative Law is Balance between Accessible and effective justice
for aggrieved individuals, Openness and accountability of govt., Quality and
consistency of govt decision and Administrative and fiscal efficiency, Cost and
complexity in dispute resolution, ‘Collective’ public interest and individual interest –

 Administrative law is considered a branch of public law. Administrative law is the

body of law which governs the activities of administrative agencies of government.
Government agency action can include rulemaking, adjudication, or the enforcement
of a specific regulatory agenda.
 Further, we can say that, the Administrative Law is a branch of law governing the
creation and operation of administrative agencies. Of special importance are the
powers granted to administrative agencies, the substantive rules that such agencies
make, and the legal relationships between such agencies, other government bodies,
and the public at large.

 Similarly, Administrative law is a body of rules, regulations and orders formulated by

a government body such as an environment management agency responsible for
carrying out statute law.

In other words, these are the legal rules and principles on which courts act in
controlling the exercise of statutory powers of adjudication and rule making by public
authorities other than judiciary and legislature.

 Administrative law encompasses laws and legal principles governing the

administration and regulation of government agencies including Federal and State.
Such agencies are delegated power by Parliament or in the case of a State agency, the
State Legislature to act as agents for the executive. Generally, administrative agencies
are created to protect a public interest rather than to vindicate private rights.

 Two important facts should be taken into account in an attempt of understanding and
defining administrative law.
- Firstly, administrative law is primarily concerned with the manner of exercising
governmental power. The decision making process is more important than the
decision itself.
- Secondly, administrative law cannot fully be defined without due regard to the
functional approach. This is to mean that the function (purpose) of administrative
law should be the underlying element of any definition. The ultimate purpose of
administrative law is controlling exercise of governmental power. The control
aspect impliedly shades some light on the other components of its definition.

 “Administrative law is the law relating to the administration. It determines the

organization, powers and duties of administrative authorities.” -Sir Ivor Jennings

Massey criticizes this definition because it fails to differentiate administrative and

constitutional law. It lays entire emphasis on the organization, power and duties to the
exclusion of the manner of their exercise.
In other words, this definition does not give due regard to the administrative process,
i.e. the manner of agency decision making, including the rules, procedures and
principles it should comply with.
  “Administrative law is that branch of public law which deals with the organization
and powers of administrative and quasi administrative agencies and prescribes the
principles and rules by which an official action is reached and reviewed in relation to
individual liberty and freedom” – I.P Massey

 Definition by Prof. Wade

According to Wade; any attempt to define administrative law will create a number of
difficulties. But if the powers and authorities of the state are classified as legislative,
administrative and judicial, then administrative law might be said "the law which
concerns administrative authorities as opposed to the others".

Again, there are some difficulties with this definition also. It falls to distinguish
administrative law from constitutional law Like Jennings definition mentioned above;
this is also very wide definition. It includes the entire legal field except the legislature
and the Judiciary. It also includes the law of local government. It is also said that it is
not possible to divide completely and definitely the functions of legislative, executive
and judiciary.

It is very difficult to say precisely where legislation ends and administrative begins.
Though enacting a law is functioning of the legislature the administrative authorities,
legislate under the powers delegated to them by the legislature and this delegated
legislation is certainly a part of administrative law.

 According to Dicey, Administrative Law is that portion of a nation’s legal system

which determines the legal status and liabilities of all state officials and defines the
rights and liabilities of private individuals in their dealing with public officials. It also
specifies the procedures by which those rights and liabilities are enforced

The above definition suffers from imperfections

It does not cover several aspects administrative law; it excludes the study of administrative
processes and examination of various powers and functions of administrative authorities and
it covers only one aspect of administrative law i.e. judicial control of public officials.

Administrative Law deals with the structure towers functions of the organs of administration;
the limits of their powers; the procedure which the administrative authorities adopt in the
exercise of their powers and the various modes of control including particularly judicial
control over the different kinds of powers exercised by them.
Administrative bodies therefore provide benefits for which individuals may find themselves
in need of an administrative law professional include:

- Unemployment commissions
- Labour commissions
- Workers’ compensation boards
- Licensing agencies
- Zoning boards
- Social Security Administration
- Equal opportunity commissions

Purpose of Administrative law

I.P. Massey identifies the basic bricks of the foundation of administrative law as:

- To check abuse of administrative power

- To ensure to citizens an impartial determination of their disputes by officials so as to
protect them from unauthorized encroachment of their rights and interests.
- To make those who exercise public power accountable to the people.
- To realize these basic purposes, it is necessary to have a system of administrative law
rooted in basic principles of rule of law and good administration.

A comprehensive, advanced and effective system of administrative law is underpinned by

the following three broad principles:

 Administrative justice, which at its core is a philosophy that in administrative

decision making the rights and interests of individuals should be properly safe
guarded.
 Executive accountability, which has the aim of ensuring that those who
exercise the executive (and coercive) powers of the state can be called on to
explain and justify the way in which they have gone about that task.
 Good administration- Administrative decision and action should conform to
universally accepted standards, such as rationality, fairness, consistency and
transparency.

Sources of Administration Law

Administrative law principles and rules are to be found in many sources. The followings are
the main sources of administrative law in India.

i. The Constitution
ii. Legislation Acts and Statutes
iii. Delegated Legislation
iv. Judicial Decision
Scope of Administrative Law

A. Public Law/Private Law Divide

- The boundaries of administrative law extend only when administrative agencies and
public officials exercise statutory or public powers, or when performing public duties.
In both civil and common-law countries, these types of functions are sometimes
called “public law functions” to distinguish them from “private law functions”.
- The former govern the relationship between the state and the individual, whereas the
later governs the relationship between individual citizens and some forms of
relationships with the state, like relationship based on government contract.
- For example, if a citizen works in a state owned factory and is dismissed, he or she
would sue as a “private law function”. However, if he is a civil servant, he or she
would sue as a “public law function”.
- Similarly, if residents of the surrounding community were concerned about a decision
to enlarge the state- owned factory because of environmental pollution, the legality of
the decision could be reviewed by the courts as a “public law function.”
- A contract between an individual or business organization with a certain
administrative agency is a private law function governed by rules of contract
applicable to any individual – individual relationship. However, if it is an
administrative contract it is subject to different rules
- The rules and principles of administrative law are applicable in a relationship between
citizens and the state; they do not extend to cases where the nature of the relationship
is characterized by a private law function.

B. Substance vs. Procedure

- Many of the definition and approaches to administrative law are limited to procedural
aspects of the subject. The focus of administrative law is mainly on the manner and
procedure of exercising power granted to administrative agencies by the legislature.
- Fox describes the trend and interaction between substance and procedure as:
‘It is the unifying force of the administrative process – in dramatic contrast to the
wide variety of substantive problems with which agencies deal- that has persuaded
most administrative law professors to concentrate on agency procedure rather than
agency substance.

Hence, to a wider extent, the study of administrative law has been limited to analyzing the
manner in which matters move through an agency, rather than the wisdom of the matters
themselves.’

Therefore, administrative law is not concerned with the merits of the decision, but with the
decision making process.
Some Cases

1. NJAC Case

The National Judicial Appointments Commission (NJAC) was established by the Union
Government of India by amending the Constitution of India through the 99th Constitutional
Amendment Act, 2014. The amendment act was passed by both the Houses of Parliament
with two-thirds of majority in August, 2014. Along with the Amendment Act, the NJAC Bill
2014 was also passed by the Parliament. The bills were approved by the 20 state legislatures
and President of India gave his assent to the bills in December, 2014. The two acts came into
force from 13thApril 2015.

The National Judicial Appointments Commission (NJAC) established under the NJAC Bill
2014, replace the over two-decade-old collegiums system followed for the appointments of
the judges of Supreme Court and the 24 high courts. The headquarters of the commission was
to be in New Delhi.

Judgement of the Supreme Court bench

- The Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial
Appointments Commission Act, 2014, is declared unconstitutional and void.
- The system of appointment and transfers of Judges higher judiciary, as existing prior
to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegiums
system”), is declared to be operative.
- The clauses provided in the amendment are inadequate to preserve the primacy of the
judiciary, a basic feature of the constitution.
- Inclusion of Law Minister in the commission impinged both on the independence of
the judiciary and the doctrine of separation of powers between the judiciary and the
executive.
- The bench also rejected for reference to a larger Bench, and for reconsideration of the
Second and Third Judges cases.
- To consider introduction of appropriate measures, if any, for an improved working of
the “collegiums system”.

2. Indira Sawhney v. UOI, AIR 1993 SC 477

The five-judge bench referred the matter to a special Constitution Bench of 9 judges in view
of the importance of the matter to finally settle the legal position relating to reservation.

Supreme Court: The decision is given by the 6:3 majority held that the decision of the Union
Government to reserve 27% Government jobs for SEBCs provided them Creamy layer
among them eliminated is constitutionally valid. The court struck down the second provision
of Office Memoranda and held that reserving 10% Government jobs for economically
backward classes among higher caste is not valid.
 3. Air India v. Nargis Mirza (AIR 1981 SC 1829)
The Supreme Court struck down the discriminatory Rules of Indian Airlines. An Air
Hostess in Indian Airline challenged certain provisions of their service rile wherein an
Air Hostess could have the job up to 35 years of age, but can be terminated if she gets
married within 4years of her recruitment or her first pregnancy as unreasonable and
invalid. The Supreme Court held that this provision compelled the Air Hostess not to
have children which is against the human nature.
The Supreme Court also upheld the right of the Air Hostess to work up to age of 45
years instead of 35 years of age, if they are otherwise found fit. But the validity of the
rule for not allowing to get married for 4 years immediately after joining was upheld
due to the exigencies of services.

Growth of the Administrative Law

1. Changed relations of Authorities and Citizens

It can be seen from the present set up of the Administration that relations of the public
authorities with the citizens have been deeply changed. Citizens were not directly involved in
the administration in the earlier days. They were somewhat isolated from the sphere of
Administration. There was a wide gap between the Administrative organs and the then
citizens. This is not the case today.

Today in most of the states there is a democratic Administration of either type. It is therefore,
the association of the people is found to be integral. The citizens are closely associated with
the state Administration. In view of these changing relations, the basic structure of the legal
set up needs to be rearranged. The Administrative law, has therefore, developed.

2. Origin of Welfare State Concept

During the period of 19th and 20th Century the concept of state was developed. According to
the doctrine of welfare the basic objective of the State Administration is to achieve maximum
Welfare of the masses. Each and every policy of the state should aim at maximum welfare of
the people. It obviously added to the functions of state. The theory of increasing functions of
the state has been accepted by almost all. Increase in functions of the states created several
problems and complications. It was, therefore, thought necessary to solve the problems to
enact separate Branch of Law and hence the branch known as the Administrative Law has
been developed.
3. Inadequacy of the Legislations

At present there are several drawbacks in the present Legislations. It would have been,
therefore, found very difficult to accommodate the new Administrative machinery in the
existing legislations. In order to meet the expanding needs of changed social, economic
characterised problems, the new branch of law, i.e. Administrative Law was necessary.

4. Inadequacy of Courts

As it is quite known to us that the present courts are overburdened with the huge work, it is
almost impossible for the present set of courts to solve the ever crowded problems of
Administration along with its own. It is therefore, proposed that there should be separate
Branch of Law for the problems of Administration and hence this new Branch has been
developed.

5. Technical Experts are with Administrative Organs

At present all the technical experts are with the Administrative organs. In case it is attempted
to shift the legal job of Administration to the present judiciary and the present legislations,
the same will be handicapped due to lack of technical knowledge.

Thus in order to utilise and use the talent of the technical experts which are at present with
the Administrative organs it is really wise creating new and co-ordinating branch of law i.e.
Administrative law.

And lastly, we can say that they act as an impartial arbitrator, and hence there is a need of
separate Administrative Law.

6. Union of both Administrative & Judicial Function

As per the Principle of separation of powers these organs of Administration have been
proposed and created. The Executive, the Legislative and Judiciary are these three organs
which are functioning separately. But in order to co-ordinate, there are is Administrative Law
for Administrative Organs.
7. The Judicial System Proved Inadequate

To decide and settle the entire dispute; It was slow, costly inexpert, complex and formalistic.
It was already over-burdened, and it was not possible to expect speedy disposal of even very
important matters. E.g. Disputes between employers and employees, lock-outs, strikes etc.
Therefore industrial tribunals and labour courts were established which possessed the
techniques and experts to handle these complex problems.

In simple words, the reason behind the growing importance of Administrative law is the
assumption by the Administrative authorities of very wide powers including legislative and
judicial which was the result of the social welfare state. Since Administrative law is primarily
concerned with the control over the exercise of their powers, i.e. to prevent Administrative
authorities from abuse and misuse of powers, it has become a subject of growing interest.

b. Rule of Law and Administrative Law

- The concept of Rule of law is of old origin and is an ancient ideal. It was discussed by
ancient Greek philosophers such as Plato and Aristotle around 350 BC.
- Basic Principles of the Rule of Law
 Law is Supreme, above everything and everyone. Nobody is above the law.
 All things should be done according to law and not according to whim.
 No person should be made to suffer except for a distinct breach of law.
 Absence of arbitrary power being heart and soul of rule of law.
 Equality before law and equal protection of law.
 Discretionary power should be exercised within reasonable limits set by law.
 Adequate safeguard against executive abuse of powers.
 Independent and impartial Judiciary.
 Fair and Just Procedure
 Speedy Trial
- Plato wrote: “Where the law is subject to some other authority and has none of its
own, the collapse of the state, in my view, is not far off; but if law is the master of the
government and the government is its slave, then the situation is full of promise and
men enjoy all the blessings that the gods shower on a state".
- Likewise, Aristotle also endorsed the concept of Rule of law by writing that "law
should govern and those in powers should be servants of the laws."
- The phrase ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’
(the principle of legality) which refers to a government based on principles of law and
not of men.
- Rule of law is one of the basic principles of the English Constitution and the doctrine
is accepted in the Constitution of U.S.A and India as well. The entire basis of
Administrative Law is the doctrine of the rule of law.
- Sir Edward Coke, the Chief Justice of King James I’s reign was the originator of this
concept. He maintained that the King should be under God and the Law and he
established the supremacy of the law against the executive and that there is nothing
higher than law.
- Later, Albert Venn Dicey (a British jurist and constitutional theorist) developed the
concept in his book ‘The Law of the Constitution’ (1885). His writing on the British
Constitution (which is unwritten) included three distinct though kindred ideas on Rule
of law :
i) Absence of discretionary powers and supremacy of Law: viz. no man is above
law. No man is punishable except for a distinct breach of law established in an
ordinary legal manner before ordinary courts. The government cannot punish
anyone merely by its own fiat. Persons in authority do not enjoy wide,
arbitrary or discretionary powers. Dicey asserted that wherever there is
discretion there is room for arbitrariness.
ii) Equality before law: Every man, whatever his rank or condition, is subject to
the ordinary law and jurisdiction of the ordinary courts. No person should be
made to suffer in body or deprived of his property except for a breach of law
established in the ordinary legal manner before the ordinary courts of the land.
iii) Predominance of legal spirit: The general principles of the British
Constitution, especially the liberties and the rights of the people must come
from traditions and customs of the people and be recognized by the courts in
administration of justice from time to time.

- The expression ‘rule of law’ is one which, over the years, has been used to convey a
wide variety of ideas and has a number of meanings and corollaries including their
criticisms. In common parlance it is often used simply to describe the state of affairs
in a country where, in the main, the law is observed and order is kept – i.e., as an
expression synonymous with ‘law and order’.

- Thus Common ingredients of Rule of Law are:

i. a government bound by and ruled by law
ii. equality before the law
iii. the establishment of law and order;
iv. the efficient and predictable application of justice; and
v. The protection of human rights.

- Today Dicey's theory of rule of law cannot be accepted in its totality. The modern
concept of the rule of law is fairly wide and therefore sets up an ideal for any
government to achieve. This concept was developed by the International Commission
of Jurists, known as Delhi Declaration 1959 which was later on confirmed at logos in
1961.
 According to this formulation-
"The rule of law implies that the functions of the government in a free society should
be so exercised as to create conditions in which the dignity of man as an individual is
upheld. This dignity requires not only the recognition of certain civil or political rights
but also creation of certain political, social, economical, educational and cultural
conditions which are essential to the full development of his personality".

- According to Davis, there are seven principal meanings of the term “Rule of law:
(1) Law and order
(2) Fixed rules
(3) Elimination of discretion
(4) Due process of law or fairness
(5) Natural law or observance of the principles of natural justice
(6) Preference for judges and ordinary courts of law to executive authorities and
administrative tribunals
(7) Judicial review of administrative actions. So finally it may correctly be said that
rule of law does not mean and cannot mean any government under any law.
It means the rule by a democratic law-a law which is passed in a democratically
elected parliament after adequate debate and discussion.

- Likewise, Sir Ivor Jennings says -

"In proper sense rule of law implies a democratic system, a constitutional government
where criticism of the government is not only permissible but also a positive merit
and where parties based on competing politics or interests are not only allowed but
encouraged. Where this exist the other consequences of rule of law must follow".

Rule of Law under the Indian Constitution

- In India, the concept of Rule of law can be traced back to the Upanishads. In modern
day as well, the scheme of the Indian Constitution is based upon the concept of rule of
law. The framers of the Constitution were well familiar with the postulates of rule of
law as propounded by Dicey and as modified in its application to British India. It was
therefore, in the fitness of things that the founding fathers of the Constitution gave
due recognition to the concept of rule of law.
- The doctrine of Rule of Law as enunciated by Dicey has been adopted and very
succinctly incorporated in the Indian Constitution. The ideals of the Constitution viz;
justice, liberty and equality are enshrined in the Preamble itself (which is part of the
Constitution).
- The Constitution of India has been made the supreme law of the country and other
laws are required to be in conformity with it. Any law which is found in violation of
any provision of the Constitution, particularly, the fundamental rights, is declared
void.
 - The Indian Constitution also incorporates the principle of equality before law and
equal protection of laws enumerated by Dicey under Article 14
The very basic human right to life and personal liberty has also been enshrined under
Article 21. Article 19(1) (a) of the Indian Constitution guarantees the third principle
of the Rule of law (freedom of speech and Expression).
No person can be convicted of any offence except for violation of a law in force at the
time of the commission of the act charged as an offence is also very well recognized
in the Indian Constitution.
The principles of double jeopardy and self-incrimination also found its rightful place
in the Constitution.
- Articles 14, 19 and 21 are so basic that they are also called the golden triangle
Articles of the Indian Constitution.
In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to
Art. 21 and held that the right to live the right to live is not merely a physical right but
includes within its ambit the right to live with human dignity.
- The Constitution also ensures an independent an impartial Judiciary to settle disputes
and grievances for violation of fundamental rights by virtue of Articles 32 and 226. In
Union of India v. President, Madras Bar Association, the Supreme Court held that
“Rule of Law has several facets, one of which is that disputes of citizens will be
decided by Judges who are independent and impartial; and that disputes as to legality
of acts of the Government will be decided by Judges who are independent of the
Executive."
- Justice R.S. Pathak of the Hon’ble Supreme Court has observed that “It must be
remembered that our entire constitutional system is founded on the rule of law, and in
any system so designed it is impossible to conceive of legitimate power which is
arbitrary in character and travels beyond the bounds of reason."

Rule of Law – Part of the Basic Structure

- The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in
India. The question which came up for consideration in Shankari Prasad v. Union of
India was whether the fundamental rights can be amended under Article 368. The
Supreme Court held that Parliament has the power to amend Part III of the
Constitution under Article 368 as under Article 13 ‘law’ means any legislative action
and not a constitutional amendment. Therefore, a constitutional amendment would be
valid if abridges any of the fundamental rights.
- The question again came up for consideration in Sajjan Singh v. State of Rajasthan in
which the Supreme Court approved the majority judgment in Shankari Prasad case
and held that amendment of the Constitution means amendment of all provisions of
the Constitution. Hon’ble Chief Justice Gajendragadkar held that if the framers of the
constitution intended to exclude fundamental rights from the scope of the amending
power they would have made a clear provision in that behalf.
- However, both these cases were overruled by the Apex Court in Golaknath v. State of
Punjab and it held that Parliament has no power to amend the Part III of the
Constitution so as to take away or abridges the fundamental rights and thus, at the end
the Rule of law was sub-served by the Judiciary from abridging away.
- However, the Rule of law was crumpled down with the Constitution (Twenty-Fourth
Amendment) Act, 1971. Parliament by the way of this Amendment inserted a new
clause (4) in Article 13 which provided that ‘nothing in this Article shall apply to any
amendment of this constitution made under Art 368’.
- It substituted the heading of Article 368 from ‘Procedure for amendment of
Constitution’ to ‘Power of Parliament to amend Constitution and Procedure thereof’.
The Amendment not only restored the amending power of the Parliament but also
extended its scope by adding the words “to amend by way of the addition or variation
or repeal any provision of this constitution in accordance with the procedure laid
down in the Article".
- This was challenged in the case of Keshavananda Bharti v. State of Kerala. The
Supreme Court by majority overruled the decision given in Golaknath’s case and held
that Parliament has wide powers of amending the Constitution and it extends to all the
Articles, but the amending power is not unlimited and does not include the power to
destroy or abrogate the basic feature or framework of the Constitution. There are
implied limitations on the power of amendment under Article 368. Within these limits
Parliament can amend every Article of the Constitution. Thus, Rule of law prevailed.
- In Keshavananda Bharti v. State of Kerala, the Supreme Court states that “Our
Constitution postulates Rule of Law in the sense of supremacy of the Constitution and
the laws as opposed to arbitrariness." The 13 judge Bench also laid down that the
Rule of law is an “aspect of the basic structure of the Constitution, which even the
plenary power of Parliament cannot reach to amend."
- Since Keshavananda case, Rule of law has been much expanded and applied
differently in different cases. In Indira Nehru Gandhi v. Raj Narain, the Supreme
Court invalidated Clause (4) of Article 329-A inserted by the Constitution (Thirty-
ninth Amendment) Act, 1975 to immunise the election dispute to the office of the
Prime Minister from any kind of judicial review. The Court said that this violated the
concept of Rule of law which cannot be abrogated or destroyed even by the
Parliament.
- The Habeas Corpus case according to many scholars is a black mark on the rule of
law. The case entails Dicey’s third principle of rule of law. The legal question in this
case was whether there is any rule of law over and above the Constitutional rule of
law and whether there was any rule of law in India apart from Article 21 of the
Constitution regarding right to life and personal liberty. A five judge Bench with a
majority of 4:1 (going by strict interpretation) held in the negative.
The majority judges held that the Constitution is the mandate and the rule of law.
They held that there cannot be any rule of law other than the constitutional rule of
law.
 Excluding moral conscience, they held that there cannot be any pre-Constitution or
post-Constitution rule of law which can run counter to the rule of law embodied in the
Constitution, nor there any rule of law to nullify the constitutional provisions during
the time of Emergency.

The majority judges held that “Article 21 is our rule of law regarding life and liberty.
No other rule of law can have separate existence as a distinct right. The rule of law is
not merely a catchword or incantation. It is not a law of nature consistent and
invariable at all times and in all circumstances. There cannot be a brooding and
omnipotent rule of law drowning in its effervescence the emergency provisions of the
Constitution."

Thus they held that Article 21 is the sole repository of right to life and liberty and
during an emergency, the emergency provisions themselves constitute the rule of law.

- In a powerful dissent, Justice H.R. Khanna observed that “Rule of law is the antithesis
of arbitrariness...Rule of law is now the accepted form of all civilized
societies...Everywhere it is identified with the liberty of the individual. It seeks to
maintain a balance between the opposing notions of individual liberty and public
order. In every state the problem arises of reconciling human rights with the
requirements of public interest. Such harmonizing can only be attained by the
existence of independent courts which can hold the balance between citizen and the
state and compel governments to conform to the law."

- A Constitution Bench of the Court in Ajay Hasia vs. Khalid Mujib. Justice Bhagwati,
who wrote for the Court in R.D. Shetty, also authored the unanimous opinion in Ajay
Hasia.

In Ajay Hasia, the question was whether the Regional Engineering College of
Srinagar was “State” within the meaning of Article 12. The College had been
established, and its administration was carried on, by a Society that was registered
under the J&K Societies Act. Consequently, the first argument of the Society was that
it had not been set up by the government under a statute, and so could not come
within the meaning of Article 12.

In Raman Dayaram Shetty v. International Airport Authority of India, the Supreme

Court held that the great purpose of rule of law is the protection of individual against
arbitrary exercise of power, wherever it is found. Justice Sethi observed that for
achieving the establishment of the rule of law, the Constitution has assigned the
special task to the judiciary.
 - When Article 371-D (5) (Proviso) authorized the A.P Government to nullify any
decision of the Administrative Services Tribunal, it was held violative of the rule of
law. Holding the provision unconstitutional, the Supreme Court said that it is a basic
principle of the rule of law that the exercise of power by the Executive must not only
be governed by the Constitution but also is in accordance with law. The Court also
held that the power of judicial review should be used to ensure that rule of law is
maintained.

- Over the years, the Courts have used judicial activism to expand the concept of rule of
law. For example, in Courts are trying to establish a rule of law society in India by
insisting on ‘fairness’.

- In Sheela Barse v. State of Maharashtra the Supreme Court insisted on fairness to

women in police lock-up and also drafted a code of guidelines for the protection of
prisoners in police custody, especially female prisoners.

- In Veena Sethi v. State of Bihar also the Supreme Court extended the reach of rule of
law to the poor who constitute the bulk of India by ruling that rule of law does not
merely for those who have the means to fight for their rights and expanded the locus
standi principle to help the poor.

Rule of Law and Administrative Law

- Dicey’s notions may have been criticized but the main idea behind rule of law still
holds i.e. protection of individual rights and liberties. For a democratic government,
the rule of law is a basic requirement; and for the maintenance of rule of law, there
must be an independent and impartial judiciary.
- It is embodied in the concept of rule of law that equality before the law or equal
protection of laws is ensured to all citizens, and every citizen is protected from
arbitrary exercise of power by the state.
- Thus, in a state professing the rule of law, the aim should be to provide for a system
which secures to its citizens adequate procedure for the redress of their grievances
against the state before forums, which are able to administer justice in an impartial
manner without any fear or favour. Each country has devised its own system to ensure
the maintenance of the rule of law. The rule of law pervades the entire field of
administration and regulates every organ of the state.
- In India the Constitution is supreme. The preamble of our Constitution clearly sets out
the principle of rule of law. It is sometimes said that planning and welfare schemes
essentially strike at rule of law because they affect the individual freedoms and liberty
in many ways.
- But rule of law plays an effective role by emphasizing upon fair play and greater
accountability of the administration. It lays greater emphasis upon the principles of
natural justice and the rule of speaking order in administrative process in order to
eliminate administrative arbitrariness.
- In an early case S.G. Jaisinghani V. Union of India and others AIR 1967 SC 1427, the
Supreme Court portrayed the essentials of rule of law in a very lucid manner. It
observed: “The absence of arbitrary power is the first essential of the rule of law upon
which our whole constitutional system is based. In a system governed by rule of law,
discretion when conferred upon executive authorities must be continued within clearly
defined limits.
The rule of law from this points of view means that decisions should be made by the
application of known principles and rules and, in general such decision should be
predictable and the citizen should know where he is. If a decision is taken without any
principle or without any rule it is unpredictable and such a decision is antithesis of a
decision taken in accordance with the rule of law”.
- The Supreme Court in a case, namely, Supreme Court Advocates on Record
Association v. Union of India, AIR 1994 SC 268 at p.298; reiterated that absence of
arbitrariness is one of the essentials of rule of law. The Court observed. “For the rule
of law to be realistic there has to be rooms for discretionary authority within the
operation of rule of law even though it has to be reduced to the minimum extent
necessary for proper, governance, and within the area of discretionary authority, the
existence of proper guidelines or norms of general application excludes any arbitrary
exercise of discretionary authority.
In such a situation, the exercise of discretionary authority in its application to
individuals, according to proper guidelines and norms, further reduces the area of
discretion, but to that extent discretionary authority has to be given to make the
system workable.
- The recent expansion of rule of law in every field of administrative functioning has
assigned it is a place of special significance in the Indian administrative law. The
Supreme Court, in the process of interpretation of rule of law vis-à-vis operation of
administrative power, in several cases, emphasized upon the need of fair and just
procedure, adequate safeguards against any executive encroachment on personal
liberty, free legal aid to the poor and speedy trial in criminal cases as necessary
adjuncts to rule of law.
- Giving his dissenting opinion in the Death penalty case, Justice Bhagwati explains
fully the significance of rule of law in the following words: The rule of law permeates
the entire fabric of the Constitution and indeed forms one of its basic features. The
rule of law excludes arbitrariness, its postulate is ‘intelligence without passion’ and
reason free from desire. Wherever we find arbitrariness or unreasonableness there is
denial of the rule of law.
 - Law in the context of rule of law does not mean any law enacted by legislative
authority, howsoever arbitrary, despotic it may be, otherwise even in dictatorship it
would be possible to say that there is rule of law because every law made by the
dictator, however arbitrary and unreasonable, has to be obeyed and every action has to
be taken in conformity with such law. In such a case too even where the political set-
up is dictatorial it is the law that governs the relationship between men.

Administrative Law’ as Opposed to Rule of Law

According to Dicey, administrative law rests on two basic assumptions namely,-

- That the Government and its servants possess special rights, privileges and
prerogatives as against private citizens. An individual in his dealings with the State
does not stand on the same footing as that on which he stands in dealings with his
neighbour;
- That the government and its officials should be independent of and from the
jurisdiction of ordinary courts.

From these two basic assumptions, he deduced the following four characteristic of
administrative law:

a) The relation of the government and its officials towards private citizens is regulated not by
ordinary law but by a body or rules termed administrative law.

(b) Ordinary judicial tribunals do not deal with matters between the State and private persons.
These matters are dealt with by administrative Courts.

c) The question regarding the limits of jurisdiction of the judicial courts and the
administrative courts are determined not by judicial bodies but by administrative bodies.

(d) The servants of the State acting in discharge of their official duties and in bona fide
obedience to superior orders are free from the supervision or control of ordinary law courts
i.e., in matters of high policy (acte de government or Act of State) the administration has a
discretionary authority which cannot be controlled by any court.

If administrative law implies wide discretionary authority on the part of the government, it is
inconsistent with the existence of the Rule of Law.

Rule of Law means equal subjection of all classes to the ordinary law of the land as
administered by ordinary law courts. Hence it is opposed to the administrative law which
normally implies the existence of special tribunals dispensing, what has come to be known as,
administrative justice,
The droit administratif as it obtains in France means, Dicey thought that every servant of the
Government possesses as a representative of the nation, a whole body of special rights,
privileges, or prerogatives as against private citizens, and that they are exempted from the
operation of the ordinary law of the land with regard to their official conduct.

Dicey contended that such was not the case in England. He admitted that such “official law”
existed in England as well but with a basic difference. Such law in England, by whatever
name it may be termed, which regulates the privileges or disabilities of civil servants, is the
law of a Class. Thus Military Law is law of a class, viz. the Army. Droit administratif on the
other hand, is not the law of a class.

It is a body of law which may affect the right of any French citizen. Thus if an action is
brought by X against Y in the ordinary courts (tribunal judiciaries), and the rights of the
parties are found to depend on an administrative act (cast administratif), it must be interpreted
by an administrative tribunal.

In truth, Dicey argued, droit administratif is not the law of the Civil Service, but is the part of
the French Public law which affects every Frenchman in relation to the acts of the
administration.

The relation or droit administratif to the ordinary law of France might perhaps be compared
not with such law as Military Law governing a particular class but with the relation of Equity
to the Common Law of England.

Droit Administratif like Equity in England constitutes a distinct body of law which differs
from the ordinary law of the land, and under certain circumstances modifies the ordinary civil
rights of every citizen.

The analogy cannot, however, be taken any further because Equity in England benefits or
applies to every one-an official or a private citizen, droit administratif in France exists for the
benefit and protection of civil servants only.

Thus Dicey observed that the basic feature of the droit administratif is so foreign to British
nations that it is impossible to identify droit administratif with any branch of English law-
since there is an inherent and irreconcilable difference or contradiction between the droit
administratif and the Rule of Law.

c. Separation of Powers and its Relevance

Nature and Meaning of the Principle

- The doctrine of separation of powers means that none of the government, i.e., the
legislative, executive and judicial should ever exercise the powers of the other. It
means that the three departments of government are to be separated and
distinct. They are to be independent of one another, and each can exercise only one
type of authority, legislative, executive or judicial.
- According to some writers on the topic, like Wade and Philips, this doctrine of
separation of powers means that the same person cannot compose more than one of
the three departments of the government. One department should not control and
interfere with the acts of the other two departments, and one department should not
discharge the functions of the other two departments.
- Thus, according to them, the theory of separation of powers signifies three
formulations of structural classification of governmental powers:
I. The same person should not form part of more than one of the three organs of
the government; for example, ministers should not sit in parliament.
II. One organ of the government should not interfere with any other organs of the
government. For example, the executive should not interfere in the
administration of justice by the courts.
III. One organ of the government should not exercise the functions assigned to any
other organ. For example, the executive branch cannot legislate on laws, and
as well it cannot adjudicate cases.

- Given the division of powers, it should also be noted that the authorities of the three
organs or departments of the government are interrelated. They are to a large extent
dependent upon another. Ministers are politically responsible to parliament, and
legally responsible to courts. Complete separation is found to be not possible. A
complete separation of powers, in the sense of a distribution of the three functions of
government among three sets of organs, with no overlapping or co- ordination, would
bring government to a standstill.

- Similarly, some writers described this situation as: “Had the doctrine of separation of
powers been followed rigidly in any country, the development of modern
administrative agencies would have been impossibility.”

- The division of governmental powers into legislative, executive and judicial is not an
exact classification. It is abstract and general and it is not true only theory, but it is
also impossible in actual practice to make complete separation. There are many
powers which may be assigned to one department, or delegated to a commission, or
agency created for the purpose of administering a law, while they are inherent powers
of the other departments.

- Thus, the true meaning of the theory of separation of powers, as it has been modified
by practice, is that the whole power of two or more departments shall not and should
not be lodged in the same hand, and that each department shall have and exercise such
inherent powers as shall protect it in its performance of its major as well as minor
duties.
Theory of Separation of Powers

 The three organs of the government—Legislature, Executive and Judiciary— perform

the three essential functions of law-making, law-application and law- adjudication.
This threefold division of governmental functions is universally accepted as the best
way of organizing the government. These three functions are inter-related and inter-
dependent. But these are performed by three different organs.

Central Idea of the Theory of Separation of Powers:

 The Theory of Separation of Powers holds that the three organs of government must
be separate and independent from one another. Any combination of these three
functions into a single or two organs is harmful and dangerous for individual liberty.
Separation of powers of the three organs is essential for the efficiency of the
government and the liberty of the people.
 Government can work systematically and efficiently only when each of its organs
exercises its own powers and functions. Similarly, the liberty of the people can be
protected only when there is no concentration or combination of the three
governmental powers in the hands of one or two organs.
 The theory of Separation of Powers holds that for keeping the government limited,
which is necessary for protecting the liberty of the people, the three functions of
government should be separated and performed by three separate organs.

Meaning of Separation of Powers:

 In simple words, the theory of Separation of Powers advocates that the three powers
of the government should be used by three separate organs. Legislature should use
only law making powers, Executive should undertake only law enforcement
functions, and Judiciary should perform only adjudication/Judicial functions. Their
powers and responsibilities should be clearly defined and kept separate. This is
essential for securing the liberty of the people.
 If we look to the writings of the Greek philosopher Aristotle, it is possible to discern
a rudimentary separation of powers doctrine. Thus in his Politics, Aristotle remarked
that:

There are three elements in each constitution in respect of which every serious
lawgiver must look for what is advantageous to it; if these are well arranged, the
constitution is bound to be well arranged, and the differences in constitutions are
bound to correspond to the differences between each of these three elements. The
three are, first the deliberative, which discusses everything of common importance;
second, the officials . . .; and third, the judicial element.
  The English political theorist, John Locke, also envisaged a threefold classification
of powers. Writing in The Second Treatise of Government (1689), Locke drew a
distinction between three types of power: legislative, executive and federative. .
In Locke’s analysis, the legislative power was supreme and although the executive
and federative powers were distinct, the one concerned with the execution of domestic
law within the state and the other with a state’s security and external relations, he
nevertheless took the view that ‘they are always almost united’ in the hands of the
same persons. Absent from his classification is any mention of a separate judicial
power.

Moreover, the proper exercise of these powers is achieved not through separation but
on the basis of trust i.e., that a community has entrusted political power to a
government. Thus, Locke’s analysis does not, strictly speaking, amount to the
exposition of a doctrine of the separation of powers.

Separation of Powers: Views of Montesquieu

In his book The Spirit of The Laws’ (1748), Montesquieu enunciated and explained his
theory of Separation of Powers. He wrote:

(1) If the legislative and executive powers are combined in the same organ, the liberty of the
people gets jeopardized because it leads to tyrannical exercise of these two powers.

(2) If the judicial and legislative powers are combined in the same organ, the interpretation of
laws becomes meaningless because in this case the lawmaker also acts as the law interpreter
and he never accepts the errors of his laws.

(3) If the judicial power is combined with the executive power and is given to one-person or
one organ, the administration of justice becomes meaningless and faulty because then the
police (Executive) becomes the judge (judiciary).

(4) Finally if all the three legislative, executive and judicial powers are combined and given
to one person or one organ, the concentration of power becomes so big that it virtually ends
all liberty. It establishes despotism of that person or organ.

As such, the three powers should not be combined and given neither to a single organ nor to
two organs. These three powers should be used by three separate organs of the government. It
is essential for safeguarding the liberty of the people.
Use of Separation of Powers in Modern Constitutions

 The theory of Separation of Powers guided the Declaration of Rights adopted after the
French Revolution of 1789. It clearly stated that, “every society in which separation
of powers is not determined has no constitution.”
 The real and big support to this theory came from the founding fathers of the
Constitution of the USA. They accepted its importance as the essential safeguard for
preserving liberties and property.’ The Constitution of USA adopted the theory of
separation of powers as its guiding principle.
 It laid down a governmental structure based on this theory. It gave the legislative
powers to the US Congress, the executive powers to the US President and the judicial
powers to the US Supreme Court. Each organ was kept separate from the other two.
 The Universal Declaration of Human Rights, as adopted by the UN General Assembly
on 10 December 1948, also accepted the principle of separation of powers. In fact, all
contemporary democratic constitutions do provide for a separation of powers in one
way or the other.

Theory of Separation of Powers: Criticism

1. Complete Separation is not possible:

The government is a single entity. Its three organs can never be completely separated. The
legislative, executive and judicial functions are interdependent and inter-related functions and
hence cannot be fully separated.

2. Complete Separation is not desirable:

Complete separation of three organs of government is neither possible nor desirable. It is not
desirable because without among mutual coordination these cannot carry out its functions
effectively and efficiently. Complete separation of powers can seriously limit the unity and
coordination needed by the three organs.

3. Impracticable in itself:

We cannot fully use separation of powers. The function of law-making cannot be entrusted
only to the legislature. The needs of our times have made it essential to provide for law-
making by the executive under the system of delegated legislation. Likewise, no one can or
should prevent law-making by the judges in the form of case law and equity law.
4. Unhistorical:

The theory of Separation of Powers is unhistorical since it has never been operative in
England. While formulating and advocating this theory, Montesquieu advocated that it was at
work in England. Under the British parliamentary system of government, there was and
continues to be a close relationship between the British Parliament and the Cabinet. Even
there is no separation of judiciary from legislature in so far the British House of Lords acts as
the highest court of appeals. The British Constitution has never been based on the theory
separation of powers.

5. The three Organs of Government are not equal:

The Theory of Separation of Powers wrongly assumes the equality of all the three organs of
the government. The legislature of the state is always regarded as the primary organ of
government. The work of the government begins by law-making. However, in actual practice
the executive acts the most powerful organ of the government. The judiciary is the weakest of
the three organs, yet it is always held in high esteem by the people. Hence the three organs
are neither equal nor equally respected.

6. Separation of Powers can lead to deadlocks and inefficiency:

Separation of powers can lead to deadlocks and inefficiency in the working of the
government. It can create a situation in which each organ can get engaged in conflict and
deadlocks with other two organs.

7. Liberty does not depend only upon Separation of Powers:

The critics reject the view that liberty can be safeguarded only when there is a separation of
powers among the three organs of the government. They argue that in the absence of
fundamental rights, independence of judiciary, rule of law, economic equality and a spirit of
democracy, there can be no liberty even when there may be present full separation of powers.

8. Separation of Functions and not of Powers:

The name ‘Separation of Powers’ is wrong because this theory really advocates a separation
of functions. Power of the government is one whole. It cannot be separated into three separate
parts. It is at the back of the functions of all the three organs of government.

The theory of separation of powers is really a theory of separation of functions. Thus, the
theory of Separation of Powers has several limitations. All scholars accept that absolute and
rigid separation of powers is neither possible nor desirable. Three organs of government
cannot be and should not be totally separated into unrelated water-tight compartments.
Separation of Powers and Checks and Balances:

 Further for using the theory of Separation of Powers, we need the adoption of another
theory i.e. the theory of Checks and Balances. Under this theory each organ, along
with its own power, enjoys some checking powers over the other two organs. In the
process a system of checks and balances governs the inter-organ relations.
 The theory of Checks and Balances holds that no organ of power should be given
unchecked power in its sphere. The power of one organ should be restrained and
checked with the power of the other two organs. In this way a balance should be
secured which should prevent any arbitrary use of power by any organ of the
government.
 The legislative power should be in the hands of the legislature but the executive and
judiciary should have some checking powers over it with a view to prevent any
misuse or arbitrary use of legislative powers by the legislature. Likewise, the
executive powers should be vested with the executive but legislature and judiciary
should be given some checking powers over it.
 The same should be the case of the judiciary and its power should be in some respects
checked by the legislature and executive. In other words, each organ should have
some checking power over the other two organs and there should prevail, a balance
among the three organs of government.
 In fact, the theories of Separation of Powers and Checks and Balances always go
together. These have been together in operation in the US Constitution. The theories
Separation of Powers and Cheeks and Balances have to adopt simultaneously.

Separation of Powers in India

 In India, the doctrine of Separation of Powers has not been accorded a constitutional
status. Apart from the directive principle laid down in Article 50 which enjoins
separation of judiciary from the executive, the constitutional scheme does not embody
any formalistic and dogmatic division of powers.
 As a general provision, Parliament is entrusted to make the law for the union.
Executive is entrusted with duty of implementation of law and judiciary is also
considered to be independent under the constitutional scheme in India. However,
there are many exceptions which negate the application of this doctrine.

Constitutional Provisions

 Under Article 53 the executive powers of the union are vested with the President and
under Article 154 the Governor is vested with execution powers but they do exercise
their powers with the aid and advice of the council of ministers at the Centre (Article
74) and at the State, as the case may be. Both President and Governor exercise the
power of ordinance making under the constitution thus performing legislative
functions.
  President makes laws for a State, after the dissolution of the State Legislature,
following the imposition of the President’s Rule (Article 356). President has the
power to disqualify any member of the house under Article 103.
 The judges of the Supreme Court are appointed by the President, while the parliament
has the power to impeach the judges. The President has the power to decide a disputed
question of the age of a judge of Supreme Court or any High Court for purpose of set
restrain from the judicial service.
 The Union Council of Ministers is responsible to the Lok Sabha (Article 75). This
house has the powers to start impeachment proceedings against the President (Article
61) and the judges of the Supreme Court. The members of Council of Ministers will
be members of either house of Parliament under Article 75(5) which means there is
overlapping of personnel also.
 The judicial function of Parliament is too substantial in certain respects. It can
consider the question of breach of any known parliamentary privilege; and in a case
where the charge is established have power to punish for their contempt.
 The High Courts in certain marginal spheres perform such functions which are
administrative rather than judicial. Their power of supervision over other subordinate
courts under Article 227 is more of the administrative nature than judicial.
 When under Article 228 they have power to make transfer of cases, they exercise
administrative control over the State district courts as well. The legislative power of
the High Courts and the Supreme Court includes their power to frame rules which is
fairly wide.
 The Executive in India is authorized to legislate in the name of delegated legislation.
In the name of administrative adjudication of the right of individual citizens, the
administrative agencies, which are statutory tribunals and domestic tribunals have
been constituted and perform judicial function.

Judicial Views on the Doctrine of Separation of Power

 There have been several landmark judgements that have changed the face of the
doctrine of separation of powers in India. These are discussed in this section.
 The only validity of the doctrine of separation of powers is in the sense that one organ
should not assume the essential functions of the other. This was the view of Supreme
Court in Ram Jawaya Kapur v. State of Punjab [AIR 1955 SC 549], it was held that
the

“…Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the government
have been sufficiently differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption, by one organ or part of the State, of
functions that essentially belong to another.”
  Since after the Kesavananda Bharti v. State of Kerala [AIR 1973 SC 1461], and the
judicial articulation of the doctrine of basic structure and essential features of the
Constitution therein, the separation of powers is spoken as a structural basis of the
constitutional framework and cannot be destroyed by any amendment.
 The doctrine puts less and less emphasis on organizational pattern, and seeks to effect
increasingly functional division. In re Delhi Laws Act case [AIR 1951 SC 332],
Hon’ble Kania, CJ. observed that.

“Although in the Constitution of India. . . . . . There is no express separation of power, it is

clear that a legislature is created by the Constitution and detailed provisions are made for
making that legislature pass laws. Is it then too much to say that under the Constitution the
duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making
law is primarily cast on Legislature? Does it not imply that unless it can be gathered from
other provisions of the Constitution, other bodies executive or judicial are not intended to
discharge legislative functions?”

 Therefore, the functions of different organs are clearly earmarked so that one organ
does not usurp the functions of another. In Indira Nehru Gandhi v. Raj Narain [AIR
1975 SC 2299], Ray CJ., also observed that in the Indian Constitution there is
separation of powers in broad sense only. Beg, J., has observed that basic structure
also embodies the separation of powers doctrine and none of the pillars of the Indian
Republic can take over the other functions, even under Article 368. Chandrachud, J.,
reiterated this view and held that this doctrine is useful as a means of checks and
balances in a political setup. For examples the judiciary should shy away from the
politics of the Parliament and the latter should revere the opinion of the Courts.
 On a casual glance at the provisions of the Constitution of India, one may be inclined
to say that the doctrine of broad division of the power of state has been accepted
under the Constitution of India. In Golaknath v. State of Punjab [AIR 1967 SC 1643],
Subba Rao, CJ., observed:

“The Constitution brings into existence different constitutional entities, namely, the
Union, the States and the Union Territories. It creates three major instruments of
power, namely, the Legislature, the Executive and the Judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers without
overstepping their limits. They should function within the spheres allotted to them.”

 In Bandhuva Mukti Morcha v. Union of India [AIR 1984 SC 802], Pathak J., said:

“The Constitution envisages a broad division of the power of state between the
legislature, the executive and the judiciary. Although the division is not precisely
demarcated, there is general acknowledgment of its limits. The limits can be gathered
from the written text of the Constitution, from conventions and constitutional practice,
and from an entire array of judicial decisions.”
  Essential functions were defined in Mallikarjuna v. State of Andhra Pradesh [AIR
1990 SC 1251], when the Andhra Pradesh Administrative Tribunal directed the State
Government “to evolve proper and rational method of determination of seniority
among the veterinary surgeons in the matters of promotions to next higher rank of
Assistant Director of Veterinary Surgeons”. The Supreme Court quashed the
aforesaid direction and observed that the power under Article 309 of the Constitution
to frame rules is the legislative power which has to be exercised by the President or
the Governor of the State as the case may be. The High Court or Administrative
Tribunals cannot issue a mandate to the State Government to legislate on any matter.
In this way the principle of restraint prevents any organ of the State from becoming
superior to another or others in action.
 Similarly, in Supreme Court Employees’ Welfare Association v. Union of India [AIR
1990 SC 334], it was held that no court can issue a direction to a legislature to enact a
particular law neither it can direct an executive authority to enact a law which it has
been empowered to do under the delegated legislative authority.

Separation of Powers in USA

 If the Rule of Law as enunciated by Dicey affected the growth of Administrative Law
in Britain; the doctrine of ‘Separation of Powers’ had an intimate impact on the
development of Administrative Law in the U.S.A. As Davis points out “probably the
principal doctrinal barrier to the development of the Administrative process has been
the theory of separation of powers”. The truth is that while the doctrine of separation
has affected the character of the American Administrative Law, the doctrine itself has
been affected by the newly emerging trend in favour of Administrative Law.
 The doctrine of separation forms the basis of American constitutional structure.
Articles I, II and II delegate and separate powers and also exemplify the concept of
separation of powers. Art. I vests legislative power in the Congress; Art. II vests
executive power in the President and Art. III vests judicial power in the Supreme
Court.
 The ideal of separation, both functional and personnel is yet unrealized but nearest
approximation is reached in the State Constitution of Massachusetts in the U.S. It is
said therein, that-

… The legislative department shall never exercise the executive or judicial powers, or
either of them; the executive shall never exercise the legislative and judicial powers,
or either of them; the judicial shall never exercise the legislative or executive powers,
or either of them; to the end it may be a government of law and not of men.
Presidential Form of Government

The form of government, characterized as presidential, is based on the theory of separation

between the executive and the legislature. The President is both the head of the state as well
as its chief executive. He appoints and dismisses other executive officers and thus controls
the policies and actions of government departments. The persons in charge of the various
departments, designated as the Secretaries of State, hold office at his pleasure, are responsible
to him and are more like his personal advisors. The President is not bound to accept the
advice of a Secretary and the ultimate decision rests with the President. Neither the President
nor any member of the executive is a member of the Congress and a separation is maintained
between the legislative and executive organs. This system of government is fundamentally
different from the parliamentary system prevailing in India.

In U.S.A., the President is not in theory responsible to the Congress unlike India where the
cabinet is collectively responsible to the Parliament. The President has a fixed tenure of
office and does not depend on majority support in the Congress. Before the expiry of his
term, he can be removed only by the extremely cumbersome process of impeachment. Nor
can the President dissolve the Congress whereas in India, Prime Minister has the power to
seek dissolution of the Parliament. The executive therefore is not in a position to provide
effective leadership to the legislature and it is not always that the Congress accepts the
programme and the policy proposed by the executive. The independence of the Supreme
Court is constitutionally guaranteed.

Principle of Checks and Balances

The U.S. Constitution however incorporates some exceptions to the doctrine of separation
with a view to introduce the system of checks and balances. For instance, a bill passed by the
Congress may be vetoed by the President and, to this extent the President may be said to be
exercising a legislative function. Again, appointment of certain high officials is subject to the
approval of the Senate. Also, treaties made by the President are not effective until approved
by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive
functions. The Congress continuously probes into executive functioning through its various
committees, and also has the power to tax and sanction money for governmental operations.

The Supreme Court has the power to declare the Acts passed by the Congress
unconstitutional. But the judges of the Supreme Court are appointed by the President with the
consent of the Senate. This exercise of some part of the function of one type by an organ of
the other type is justified on the basis of the theory of checks and balances. It means that the
functioning of one organ is checked in some measure by the other organ so that no organ mat
run amok with its powers and misuse the same.
Administrative Growth and Separation of Powers

Administrative law and separation doctrine are somewhat incompatible, for modern
administrative process envisages mingling of various types of functions at the administrative
level. Had the doctrine of separation been applied strictly in the U.S.A., the growth of
administrative process would have been extremely difficult and modern government might
have become impossible. For practical reasons therefore the doctrine of separation has to be
diluted somewhat to accommodate the growth of administrative process.

Delegated Legislation

The American Administrative Law has certain distinctive features which are a product of
separation doctrine. A significant breach of the doctrine occurred when the courts concede
the legislative power could be conferred on administrative authorities, and thus, the system of
delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine, the
courts laid down that Congress cannot confer an unlimited legislative power on an
administrative authority, that the Congress must not give up its position of primary legislator
and that the Congress should therefore lay down the policy which the delegate is to follow,
while making the rules. J. Mukherjee in re Delhi Laws Act [Supra] case observed:

“The position in America is that despite the theory that legislature would not delegate its
power to the executive a host of rules and regulations are passed by non-legislative bodies,
which have been judicially recognized as valid.

Separation of Powers in England

Maitland traces the doctrine of Separation of Powers in England to the reign of King Edward
I. He observes that all the three elements were present in the form of Parliament, King’s
Council and Courts of Law.

Viscount Henry St. John Boling Broke in his book “Remarks on the History of England”
advanced the idea of separation of powers. He laid emphasis on balance of powers within the
constitution because an imbalance would destroy it. He asserts that for protection of liberty
and security in a state, equilibrium is needed between the Crown, the Parliament and the
people.

Although Montesquieu derived the concept of his doctrine of separation of powers from the
British Constitution, as a matter of fact at no point of time this doctrine was accepted in its
strict sense in England. On the contrary, in reality, the theory of integration of powers has
been adopted in England. It is true that the three powers are vested in three organs and each
has its own peculiar features, but it cannot be said that there is no ‘sharing out’ of the powers
of the government.
Thus, the King, though an executive head is also an integral part of the Legislature. Similarly,
all his Ministers are also members of one or the other Houses of the Parliament. The Lord
Chancellor is head of judiciary, Chairman of the House of Commons (Legislature), a member
of the executive and often a member of the cabinet. The House of Commons ultimately
controls the Legislative. The judiciary is independent but the judges of the superior courts can
be removed on an address from both Houses of Parliament.

In England, S.O.P has historical relevance only. Daniel Ullman says, “England is not the
classic home of the separation of powers. Each power there has taken on a character of its
own, while at the same time preserving the features of the others.”

The U.K. does have a kind of separation of powers, but unlike United States it is informal.
Black Stones theory of ‘Mixed Government’ with checks and balances is more relevant to the
U.K. Separation of powers is not an absolute or predominant feature of the U.K. Constitution.
The three branches are not formally separated and continue to have significant overlap.

The U.K. is becoming increasingly concerned with the Separation of powers, particularly
because of Article 6 of the European Convention on Human Rights which protects the right
to fair trial. The Constitutional Reforms Act, 2005 reforms the office of Lord Chancellor and
the Law Lords will stop being in the legislature. Section 23 of the Act provides for
establishment of Supreme Court of United Kingdom.

The Supreme Court whose powers have been separated from the powers of Parliament has
become functional since October, 2009. Section 61 of Constitutional Reforms Act, 2005
provides for Constitution of Judicial Appointments Commission, for appointments of Judges
in the Supreme Court as well as the court of appeal. Thus by and large independence of
Judiciary has been ensured by the Constitutional Reforms Act, 2005.

Separation of Powers as a Limitation on Administrative Law

- Even though the principle of separation of powers mainly draws a line between
legislative, executive and judicial functions of government, administrative law runs,
to some extent, contrary to this principle. It could be concluded that, it violates the
principle of separation of powers. This could be clearly manifested with little
examination of powers of administrative agencies, or the executive.
- According to the principle of separation of powers, the power and function of this
branch of government is limited to the execution or enforcement of laws.
- However, in order to ensure efficient and effective enforcement of laws, it has
become a compulsive necessity to delegate the executive and administrative agencies
with additional legislative and judicial powers (functions).
- Administrative agencies are given the power and function of writing regulations or
rules that have the force of law. For instance, the council of ministers, through a
power delegated to it by the house of people’s representatives, may issue regulations.
 - Similarly, specific administrate agencies can issue directives in accordance with the
power granted to them by the house of people’s the representatives.
- Delegation of legislative powers by the legislature is clearly against the principle of
separation of powers. However, it is justified on practical grounds. The lack of time
and expertise in the legislature to provide laws necessary to solve a certain social or
economic problem practically makes the legislature compelled to transfer some of its
legislative powers to the administrative agencies.
- Delegation is also justified on the ground that it makes the administration effective
and efficient. Agencies could not attain their purposes for which they are established
unless otherwise they have wider power, mainly rulemaking powers.
- Agencies also share some of the judicial powers which traditionally belong to the
ordinary courts. They can decide matters affecting individual rights and freedoms.
Reversing a license, imposing administrative penalty, with holding benefits (e.g.
pension), etc. all could properly be called as judicial functions.
- Most of the judicial functions of the agencies are usually exercised through organs
within or outside that agency, which enjoy, relatively, little independence. These
agencies are the administrative courts. Administrative courts give decision after
hearing the argument of parties by applying the law to the facts. Such function
normally belongs only to courts.
- Giving judicial power to agencies clearly violates the principle of the separation of
powers. Still the justifications are practical necessities, which are more or less similar
to that of the above justification with regard to granting legislative functions.
- Some matters, by nature, are technical and require detail expertise. This expertise is
found in the specific administrative agencies, not the courts. Moreover, the trial
process in the courts is lengthy, costly and rigid due to the complex procedural rules
of the litigation.
- By comparison, a certain matter may be easily decided by an agency or an
administrative court with the least cost to the parties and even to the decision-making
process. Once again, practical necessities have prevailed over the principle of
separation of powers.

The fact, administrative law could be considered as a violation of separation of powers, even
though, accepted due to practical necessities, serves as a limitation on the scope of the
administrative law. Granting a legislative and judicial power to agencies is an exception, or it
may be said a ‘necessary evil’. This leads to the conclusion that such powers should be given
and exercised narrowly i.e. only when it becomes a compulsive necessity to do so.

Agencies should not be delegated on areas primary left to the legislature. Essential legislative
functions should not be delegated to agencies. Delegation of legislative powers should be
limited only to the technical or detailed matters necessary to fill the gap in the law issued by
the legislature. In this way, the principle serves to check the legislature not to delegate wider
powers.
In a similar fashion, ordinary judicial powers should not be given to administrative agencies
or administrative courts. It should be limited only to matters which are technical by nature
and require expertise of the administration. Generally, the principle of separation of powers
imposes limitation on the extent of legislative and judicial power of agencies.

In addition to this, the principle mainly serves as a limitation on the scope of administrative
law, by making courts not to question the substance of administrative action, but only its
legality. As far as a decision is taken by an agency, which is within its confines of power,
courts should refrain themselves from reviewing that decision.

Administrative action that is not beyond the limits of powers conferred on the decision maker
is not the proper sphere for courts to intervene. If they intervene, it will be a violation of the
principle of separation of powers since they are, encroaching the power of the executive in
effect

d. Relationship between Constitutional Law and Administrative Law

- Administrative law is categorized as public law since it governs the relationship
between the government and the individual. The same can be said of constitutional
law. Hence, it is undeniable that these two areas of law, subject to their differences,
also share some common features.
- With the exception of the English experience, it has never been difficult to make a
clear distinction between administrative law and constitutional law. However, so
many administrative lawyers agree that administrative law cannot be fully
comprehended without a basic knowledge of constitutional law.
- As Justice Gummov has made it clear “The subject of administrative law cannot be
understood or taught without attention to its constitutional foundation” This is true
because of the close relationship between these two laws. To the early English writers
there was no difference between administrative and constitutional law.
- Therefore, Keitch observed that it is ‘logically impossible to distinguish
administrative law from constitutional law and all attempts to do so are artificial.”
- However, in countries that have a written constitution, their difference is not so
blurred as it is in England. One typical difference is related to their scope. While
constitutional law deals, in general, with the power and structures of government, i.e.
the legislative, the executive and the judiciary, administrative law in its scope of study
is limited to the exercise of power by the executive branch of government.
- The legislative and the judicial branches are relevant for the study of administrative
law only when they exercise their controlling function on administrative power.
- Constitutional law, being the supreme law of the land, formulates fundamental rights
which are inviolable and inalienable. Hence, it supersedes all other laws including
administrative law. Administrative law does not provide rights. Its purpose is
providing principles, rules and procedures and remedies to protect and safeguard
fundamental rights.
- This point, although relevant to their differences, can also be taken as a common
ground shared by constitutional and administrative law. To put it in simple terms,
administrative law is a tool for implementing the constitution. Constitutional law lays
down principles like separation of power and the rule of law. An effective system of
administrative law actually implements and gives life to these principles.
- By providing rules as to the manner of exercising power by the executive, and
simultaneously effective controlling mechanisms and remedies, administrative law
becomes a pragmatic tool in ensuring the protection of fundamental rights.
- In the absence of an effective system of administrative law, it is inconceivable to have
a constitution which actually exists in practical terms.
- Administrative law is also instrumental in enhancing the development of
constitutional values such as rule of law and democracy. The rules, procedures and
principles of administrative law, by making public officials, comply with the limit of
the power as provided in law, and checking the validity and legality of their actions,
subjects the administration to the rule of law. This in turn sustains democracy. Only,
in a government firmly rooted in the principle of rule of law, can true democracy be
planted and flourished.
- Judicial review, which is the primary mechanism of ensuring the observance of rule of
law, although mostly an issue within the domain of administrative law, should look in
the constitutional structure for its justification and scope.
- In most countries, the judicial power of the ordinary courts to review the legality of
the actions of the executive and administrative agencies emanates from the
constitution.
- The constitution is the supreme document, which confers the mandate on the ordinary
courts. Most written constitutions contain specific provisions allocating judicial
review power to the high courts, or the Supreme Court, including the grounds of
review and the nature and type of remedies, which could be granted to the aggrieved
parties by the respective courts.
- A basic issue commonly for administrative law and constitutional law is the scope of
judicial review. The ultimate mission of the role of the courts as ‘custodians of
liberty’, unless counter balanced against the need for power and discretion of the
executive, may ultimately result in unwarranted encroachment, which may have the
effect of paralyzing the administration and endangering the basic constitutional
principle of separation of powers.
- Lastly, administrative and constitutional law, share a common ground, and
supplement each other in their mission to bring about administrative justice. Concern
for the rights of the individual has been identified as a fundamental concern of
administrative law. It ultimately tries to attain administrative justice.
 - Constitutional law needs to be understood to include more than the jurisprudence
surrounding the express and implied provisions of any constitution. In its broader
sense, constitutional law connotes “the laws and legal principles that determine the
allocation of decision-making functions amongst the legislative, executive and
judicial branches of government, and that define the essential elements of the
relationship between the individual and agencies of the state”.
- Wade has observed that administrative law is a branch of constitutional law and that
the “connecting thread” is “the quest for administrative justice”.

Differences between Constitutional & Administrative Law

- Constitutional law and administrative law both are concerned with functions of
government, both are a part of public law in the modern state and the sources of the
both are the same. Yet there is a distinction between the two. The administrative law
is an addition of the constitutional law.
- To the early English writers on administrative law there was no difference between
administrative law and constitutional law. Therefore, Keith observed: “It is logically
impossible to distinguish administrative from constitutional law and all attempts to do
so are artificial”.
- Actually the distinction between the two is one of degree, convenience and custom
rather than that of logic and principle. However, according to Holland, “Constitutional
law describes the various organs of the government at rest, while administrative law
describes them in motion”
- Therefore, according to this view, the structure of the legislature and executive comes
within the purview of the constitutional law but there functioning comes within the
sphere of administrative law.
- But Maitland does not agree with this classification because in that case powers and
prerogatives of the crown would be relegated to the arena of administrative law.
- According to Jennings - administrative law deals with the organization, functions,
powers and duties of administrative authorities while constitutional law deals with the
general principles relating to the organization and powers of the various organs of the
state and their mutual relationship of these organs with the individuals.
In other words, constitutional law deals with fundamentals while administrative law
deals with details.
- It may also be pointed out that constitutional law deals with the rights and
administrative law lays emphasis on public need. However, the dividing line between
the constitutional law and administrative law is a matter of convenience because every
student of administrative law has to study some constitutional law.
- In countries which have written constitutions the difference between constitutional
law and administrative law is not as blurred as in England. In such countries the
source of constitutional law is the constitution while the source of administrative law
may be statutes, statutory instruments, precedents and custom.
 - Whatever may be the argument and counter argument, the fact is that today
administrative law is recognized as a separate independent branch of legal discipline
though at times the discipline of constitutional law and administrative law may
overlap. The correct position seems to be that if one draws two circles of
administrative law and a constitutional law, a certain place they may overlap and this
area may be termed as ‘watershed’ in administrative law.
- This formulation does not differentiate between administrative law and constitutional
law. It lays entire emphasis on the organization, power and duties to the exclusion of
the manner of their exercise. Jennings’ formulation also leaves many aspects of
administrative law untouched, especially the control mechanism.
- Thus Administrative Law:
 Is not the supreme law of the country rather it is subordinate to the
constitutional law.
 Is the species of Constitution law
 Deals with the organs of the state as motion.
 Mainly deals with the various functions of the state.
 Doesn’t deal with all branches of law, rather it details with the powers and
functions of administrative authorities.
 Does not deal with the international law. It deals exclusively with the powers
and functions of administrative authorities
 Deals with the powers and functions of administrative authorities, including
services, public departments, local authorities and other statutory bodies
exercising administrative powers, quasi judicial powers, etc.
 Is concerned with the organization of the services or the working of the
various government departments.

The administrators have to follow constitutional law first and next the administrative
law. The administrators should perform their functions with utmost obedience to
constitutional law. Administrative law is just a subordinate to constitutional law.

e. Classification of Administrative Law/ Administrative Action

- Administrative action is a comprehensive term and defies exact definition. In modern

times the administrative process is a by-product of intensive form of government and
cuts across the traditional classification of governmental powers and combines into
one all the powers, which were traditionally exercised by three different organs of the
State.
- Therefore, there is general agreement among the writers on administrative law that
any attempt of classifying administrative functions or any conceptual basis is not only
impossible but also futile. Even then a student of administrative law is compelled to
delve into field of classification because the present-day law especially relating to
judicial review freely employs conceptual classification of administrative action.
- Thus, speaking generally, an administrative action can be classified into four
categories:

i. Rule-making action or quasi-legislative action.

Legislature is the law-making organ of any state. In some written constitutions, like
the American and Australian Constitutions, the law making power is expressly vested
in the legislature. However, in the Indian Constitution though this power is not so
expressly vested in the legislature, yet the combined effect of Articles 107 to III and
196 to 201 is that the law making power can be exercised for the Union by Parliament
and for the States by the respective State legislatures.

It is the intention of the Constitution-makers that those bodies alone must exercise this
law-making power in which this power is vested. But in the twentieth Century today
these legislative bodies cannot give that quality and quantity of laws, which are
required for the efficient functioning of a modern intensive form of government.

Therefore, the delegation of law-making power to the administration is a compulsive

necessity. When any administrative authority exercises the law-making power
delegated to it by the legislature, it is known as the rule-making power delegated to it
by the legislature, it is known as the rule-making action of the administration or quasi-
legislative action and commonly known as delegated legislation.

Rule-making action of the administration partakes all the characteristics which a

normal legislative action possesses. Such characteristics may be generality,
prospectively and a behaviour that bases action on policy consideration and gives a
right or a disability. These characteristics are not without exception. In some cases,
administrative rule-making action may be particularised, retroactive and based on
evidence.

In some cases, administrative rule making may be particularized, retroactive and

based on evidence, according to Chinappa Reddy.J.; a legislative action has four
characteristics (1) generality (2) prospective (3) public interest (4) rights and
obligation flow from it.

In State of Punjab v. Tehal Singh: There was a declaration determining the territorial
area of a Gram Sabha & thereafter establishing the Gram Sabha – the question was
whether it is a quasi-legislative act, Where the provisions of statute provide for
legislative activity, Where the power exercised does not concern an interest of the
individual or relate to particular situation but relates to public in general, Where it
lays down future course of action.
 Rules of Natural Justice do not apply except reasonableness & fair play. Apex court
held that such action will generally hold to quasi judicial legislation action of the
authority. It is on the basis of these characteristics that one can differentiate between
quasi-legislative and quasi-judicial action. A quasi-judicial action is essentially based
on the facts of the case and declares a pre existing right. However, in certain situation
like wage or wage fixing, it is not capable of easy differentiation.

In Express News Paper(p) Ltd. V. Union of India, the SC left the question open as to
whether the function of the wage commission under the working
journalists’(condition of service) Act,1956 is quasi-judicial or quasi-legislative.
However, the delegation to the government of the power to fix the price of levy sugar
was held to be quasi-legislative functions

The committee of the ministers’ powers which was appointed in England in 1928
distinguished between administrative and quasi-legislative action on the ground that
where the former is a process of performing particular acts or of making decision
involving the application of general rule of conduct without references to particular
cases and usually for future operation.

Though the rules of natural justice do not apply to legislatives actions yet
reasonableness and fair play in action must be observed as Article 14 of the
constitution equally applies to legislative action.

ii. Rule-decision action or quasi-judicial action.

Today the bulk of the decisions which affect a private individual come not from
courts but from administrative agencies exercising ad judicatory powers. The
reason seems to be that since administrative decision-making is also a by-product
of the intensive form of government; the traditional judicial system cannot give to
the people that quantity of justice, which is required in a welfare State.

Administrative decision-making may be defined, as a power to perform acts

administrative in character, but requiring incidentally some characteristics of
judicial traditions.

On the basis of this definition, the following functions of the administration have
been held to be quasi-judicial functions:

o Disciplinary proceedings against students.

o Disciplinary proceedings against an employee for misconduct.
o Confiscation of goods under the sea Customs Act, 1878.
o Cancellation, suspension, revocation or refusal to renew license or permit by
licensing authority.
o Determination of citizenship.
o Determination of statutory disputes.
 o Power to continue the detention or seizure of goods beyond a particular period.
o Refusal to grant ‘no objection certificate’ under the
o Bombay Cinemas (Regulations) Act, 1953
o Forfeiture of pensions and gratuity.
o Authority granting or refusing permission for retrenchment.
o Grant of permit by Regional Transport Authority.

A quasi judicial act involves the first two determinants, may or may not involve the third but
never involves the fourth determinant, because the place of the fourth determinant is in fact
taken by the minister’s free choice involving expediency, discretion and policy consideration.

And the approach given by the committee seems fallacious because the judges cannot be
regard as mere norm-producing slot machines. They consider policy, socio-economic &
political factors, expediency and also under their discretion. Here administrative authorities
may apply law & dispose of the case

Like: Tax Quasi-judicial need not follow strict procedure.

The distinguishing feature of a quasi-judicial proceeding on this behalf is that the authority
concerned is required by law under which it is functioning, to act judicially. Duty to act
judicially was spelt out in R. v. Electricity Commissioners. In this, Lord Atkins thus:
“whenever anybody of the persons having legal authority to determine questions affecting the
rights of the subjects and having the duty to act judicially, acts in excess of its legal authority,
they are subjects to the controlling jurisdiction of the kings Bench Division.”

In India the judicial research for the duty to act judicially was sometimes made within the
corners of the statute under which the authority exercised powers and sometimes in the
tenuous material , remote and extraneous, such as , lis inter parties including proposition and
opposition, implications arising from the nature of the functions and the rights affecting
thereby. This doctrine approach of the courts in India and England not only made the law
confused and uncertain but also eluded justice in many cases.

However turning point came with Ridge v. Baldwin where the Lord Reid pointed out that “if
the Lord Heyward meant that it is never enough that a body has a duty to determine what the
rights of the individual should be, but that there must always be something more to impose on
it a duty to act judicially, then that appears to me impossible to reconcile with the earlier
authorities.” It was held that the duty to act judicially must arise from the very nature of the
function intended to be performed and it need not be shown to be superadded.

The development of law is traceable in India also where the Supreme Court even earlier than
Ridge v. Baldwin with the view that if there is power to decide and determine to the prejudice
of a person, the duty to act judicially is implicit in the exercise of such power.
In A.K. Kraipak V/s Union of India, in this case the Supreme Court held that though the
action of making selection for the government services is administrative, yet the selection
committee is under a duty to act judicially. The court observed that the dividing line between
an administrative powers and quasi-judicial power is quite thin and is being gradually
obliterated.

In D.K. Yadav V/s J.M.A Industries Ltd the Supreme Court further observed that the
distinction between quasi-judicial and administrative action which had become thin lined is
now totally eclipsed and obliterated. Preceding with a step further the Supreme Court clearly
held in Chandra Bhavan and Lodging Bangalore V/s State of Mysore that it is not necessary
to classify an action of the administrative authority as quasi-judicial or administrative because
the administrative authority is bound to follow the principles of natural justice in any case. In
this case, the question was whether the power to fix a minimum wage under the minimum
wages Act is quasi- judicial or administrative.

Elaborating the law further, the court identified three characteristics of quasi-judicial action:
(1) it is in the substances a determination upon investigation of a question by the application
of an objective standard to facts found in the light of pre-existing rules (2) it declares rights
and imposes upon parties obligation affecting their civil rights and imposes upon parties
obligation their civil rights : (3) that the investigation is the subjects to certain procedures
attributes contemplating facts and if the disputes to be on question of law on the presentation
of legal argument, and a decision resulting in the disposal of the matter on findings on those
question of law and facts.

In Manju Verma V/s State Of U.P, the court observed that the chief justice could not have
allowed the plea without hearing the affecting party and without determining on objective
criteria and upon investigation, whether the case is transferable and should be transferred.

The decision of the chief justice would have direct bearing on the right of the appellant to
choose “forum convenience”; hence the action is quasi-judicial subject to review by the
higher forum.

iii. Rule-application action or administrative action.

Though the distinction between quasi-judicial and administrative action has

become blurred, yet it does not mean that there is no distinction between the two.
If two persons are wearing a similar coat, it does not mean that there is no
difference between them. The difference between quasi-judicial and
administrative action may not be of much practical consequence today but it may
still be relevant in determining the measure of natural justice applicable in a given
situation.
 In State of A.P. V/s S.M.K Parasurnama Gurukul question arose whether the
power of the government to appoint trustee under section 15 of the Andhra
Pradesh Charitable and Hindu Religious Institutions’ and Endowment Act, 1966 is
quasi judicial or administrative the court held that function as administrative and
laid down that if there is lis between parties and the opinion is to be formed on
objective satisfaction, the action is quasi judicial, otherwise administrative.

In A.K. Kraipak v. Union of India, the Court was of the view that in order to
determine whether the action of the administrative authority is quasi-judicial or
administrative, one has to see the nature of power conferred, to whom power is
given, the framework within which power is conferred and the consequences.

Therefore, administrative action is the residuary action which is neither legislative

nor judicial. It is concerned with the treatment of a particular situation and is
devoid of generality. It has no procedural obligations of collecting evidence and
weighing argument. It is based on subjective satisfaction where decision is based
on policy and expediency. It does not decide a right though it may affect a right.

However, it does not mean that the principles of natural justice can be ignored
completely when the authority is exercising “administrative powers”. Unless the
statute provides otherwise, a minimum of the principles of natural justice must
always be observed depending on the fact situation of each case.

No exhaustive list of such actions may be drawn; however, a few examples maybe
noted:
o Making a reference to a tribunal for adjudication under the Industrial Disputes Act.
o Functions of a selection committee.
o Administrative action may be statutory, having the force of law, or non statutory,
devoid of such legal force.

The bulk of the administrative action is statutory because a statute or the Constitution
gives it a legal force but in some cases it may be non-statutory, such as issuing
directions to subordinates not having the force of law, but its violation may be visited
with disciplinary action.

Though by and large administrative action is discretionary and is based on subjective

satisfaction, however, the administrative authority must act fairly, impartially and
reasonable.

Thus acts, which are required to be done on the subjective satisfaction of the
administrative authority, are called ‘administrative’ acts, while acts, which are
required to be done on objective satisfaction of the administrative authority, can be
termed as quasi-judicial acts.
 Administrative decisions, which are founded on pre-determined standards, are called
objective decisions whereas decisions which involve a choice as there is no fixed
standard to be applied are so called subjective decisions. The former is quasi-judicial
decision while the latter is administrative decision.

In case of the administrative decision there is no legal obligation upon the person
charged with the duty of reaching the decision to consider and weigh submissions
and arguments or to collate any evidence. The grounds upon which he acts and the
means, which he takes to, inform himself before acting; are left entirely to his
discretion.

The Supreme Court observed, “It is well settled that the old distinction between a
judicial act and administrative act has withered away and we have been liberated
from the pestilent incantation of administrative action.

iv. Ministerial action (Pure Administrative)

A further distillate of administrative action is ministerial action. Ministerial action

is that action of the administrative agency, which is taken as matter of duty
imposed upon it by the law devoid of any discretion or judgment. Therefore, a
ministerial action involves the performance of a definitive duty in respect of
which there is no choice. Collection of revenue may be one such ministerial
action. If administrative instructions are not referable to any statutory authority
they cannot have the effect of taking away rights vested in the person governed by
the Act.

** Case of Hombe Gowda Edn. Trust and another V/s State of Karnataka and others,

 The Supreme Court expressed its view that the judiciary has come a long way from
its earlier viewpoint as a protectionist of the workforce to that of an arbitrator for
balancing industrial relations.
 The recent trend in the decisions of this Honourable Court seek to strike a balance
between the earlier approach of the industrial relation wherein only the interest of
workmen was sought to be protected with avowed object of fast industrial growth of
the country.
 In several decisions it has been now noticed that the earlier decisions of the judiciary
led to a setback as far as discipline at the workplace/industry is concerned. It is
therefore in view of the change of the economic policy of the country, it may not be
proper now to allow the employees to break the discipline with impunity or with no
punishment.
 Our country is governed by rule of law and therefore all actions must be taken in
accordance with the same, so that there is a balance between the interest of the
workers as well as the entrepreneurs or industry owners.
 Legislative Functions of Administration

a. Meaning and Concept of Delegated Legislation

Growth of Delegated Legislation

(a) Impact of Science and Technology:

Due to the impact of science and technology the functions of the modern state have got
multiplied to such an extent that it is virtually controlling the management of the life of the
community as a whole. Evidently, this has led to the growth of powers of the modern
legislature to an extent that they cannot cope with it.

They are thus compelled to delegate some of their powers to the Executive. The pressure of
work and lack of time induce the legislature to delegate legislative authority to the Executive.

(b) Average Legislator—A Layman:

The average legislator is a layman. He is not competent to deal with matters complex and
complicated. Hence, he lays down only general principles and leaves the technical details to
be filled up by the departmental heads.

For example, the Parliament may place restrictions on the sale of poisonous substances but
may leave the compilation of poisonous substances to the experts in the Medical and Health
Department.

(c) Need to Secure Flexibility:

Law may require amendments, or modifications with the change of times. Parliament is not
always in session. Hence, it cannot adapt the law to the changing conditions. Delegation of
this power to the executive enables it to make alterations in the law whenever deemed
essential.

(d) To Provide for Unforeseen Contingencies:

Emergencies like war, famine, pestilence, economic crisis require prompt action. It is not
desirable to wait for the session of the parliament to meet such eventualities. Hence such a
power need be vested with the Executive which is always prepared to take action.

Carr has correctly remarked, “It is during global wars that governmental regulation becomes
most intrusive. This is natural enough, lo secure survival from these uncomfortable
experiences, legislative power must be delegated in the widest terms to meet unforeseeable as
well as patent danger…”
(e) Legislature Cannot Foresee:

It is not possible for the legislature to foresee and include in the law all the contingencies
which may arise in case of large and complex matters. Hence they are left to the departments
to be regulated as and when the opportunity arises.

(f) Affected Interests Better Consulted:

Administrative agencies can make better consultation with the interests affected than the
legislature which cannot conveniently arrange for such consultations. In the words of White,
“The drafting of the rule may and often does permit conference between the government and
the parties at interest and consequently a broad agreement which leads towards voluntary
compliance.”

(g) New Standards to be set up:

Growth of delegated legislation can also be attributed to the need of setting up of new
standards in the social interest. This is to ensure the national minimum of health, education,
housing, and sanitation to everybody that expert and experienced knowledge is required.

For instance, the question whether a local authority is justified in restricting traffic in excess
of a certain weight from crossing a particular bridge is an engineering problem which can
hardly be solved by the law of the legislature. A right decision on such questions necessitates
the application of rules which only engineers of long experience can comprehend.

(h) Administrator Better Aware of the Requirements of the Situation:

The Administrator is better aware of the requirements of the situation than a lay
parliamentarian. He can therefore draft rules in the light of what is administratively feasible.
Laws passed by the Legislature are not necessarily concerned with the administrative
feasibility of rules.

Hence, many a time they seem unworkable and the Administrator finds himself in a dilemma.
In order to cope with such a situation, he may enforce the laws in a way as to defeat its very
purpose. According to Amery, “Much of our social and economic legislation covers so vast
and detailed a field that no statute howsoever cumbrous—could possibly provide for all
contingencies.”

(i) Rules to be Lenient in the Initial Stages:

Government is entering into new spheres especially of trade and commerce. As such it must
elicit the co-operation of a large section of the people. Such co-operation is mutual. The rules
of the Government must also be lenient and innocuous.

If people get adjusted to the new situation, Government rules may be stiffened. The
Administrative rule making procedure alone can permit hardening of the rules after passage
of some time.
(j) Proper Drafting of Rules:

Since rule-making is done in keeping with the circumstances, drafting of rules is apt to be
more perfect than the legislation through the parliament. Hence it is preferred.

Meaning of Delegated Legislation:

Delegated legislation refers to the law making power vested with the executive by the
legislature itself. This term is known as Executive Legislation. Since the law-making power
given to the Executive is not its original power, it is called subordinate legislation. It is
deemed void if it violates the Parent Act or transgresses its power.

Donoughmore Committee thus defined the Delegated Legislation- “The word legislation has
grammatically two meanings—the operation or function of legislation; and the laws which
result there from. So too delegated legislation may mean either exercise by a subordinate
authority, such as a Minister, of the legislative power delegated to him by the Parliament, or
the subsidiary laws themselves passed by Ministers in the shape of departmental regulations
and other statutory rules and orders.”

During the last one decade or two, there has fast developed a tendency, on the part of the
Legislature, of delegating their law-making function to the Executive.

Though passing of laws is the responsibility of the legislature and not of the Executive yet
due to significant social, political and economic changes, the legislature has found itself
obliged to delegate quite a bulk of its legislative power to the administrative authorities.

The executive makes use of this power through the issue of rules. Since the rules so made by
the Executive have the force of laws and are enforceable by the courts of laws, this rule
making power is termed as Delegated Legislation, Executive Legislation or Subordinate
Legislation.

Thus delegated legislation means the exercise by a subordinate authority such as a Minister of
the legislative power delegated to him by the Parliament. Parliament passes the Bill in
general terms and delegates the authority of rule-making under the Act to the Minister
concerned.

Since this authority of rule-making is in pursuance of statutory authority and not an original
power of the Executive in its own right delegated legislation is subservient to the statute
under which it is made. If the rule is not consistent with the statute, it is null and void.

The term delegated legislation is used in two senses:

(a) It refers to the powers delegated to the executive to make rules,

(b) It means the output of the exercise of that power, viz., rules, regulations, orders,
Advantages of Delegated Legislation:

(a) Time of Parliament Saved:

Delegated legislation enables the parliament to save its time. As already said, the activities of
the Government have got multiplied. The volume of legislation has thus become manifold.
The legislature has neither the time nor the capacity to make laws.

Hence, it delegates some of its law-making powers to the Executive, freeing itself from the
burden of details. Time, thus saved, can be more fruitfully utilized by the legislature on
important issues of policy.

(b) Flexibility of Rules:

It is conducive to flexibility. Laws passed by the legislatures are comparatively rigid.

Rigorous procedures of amendment may have to be resorted to, to effect amendments in
certain laws. Otherwise too, repealing, rescinding or amending an ordinary law necessitates
following up of a certain specific procedure, sometimes making prompt adaptability to
changing circumstance a bit difficult. James Hart has correctly remarked,

“If a legislative rule is both specific and unworkable, the administrator is in dilemma. He
must either try to work the unworkable and thereby invite litigation and defeat of the real
purpose of the statute or he must evade or ignore the letter of the law.”

Administrative rule, on the other hand, is easily changeable in response to fast changing
needs, without a formal amendment of the Act. Such adaptability is particularly desirable in
the fields that are experiencing rapid changes due to quick, scientific and technological
advances.

(c) Interests Affected Consulted:

Delegated legislation makes prior consultation with the affected interests possible. Such a
consultation will make legislation more effective. In the words of White, “The drafting of the
rule may and often does permit conference between the government and the parties at interest
and consequently a broad agreement which tends towards voluntary compliance.”

(d) Expert Knowledge Utilized:

Parliament is composed of laymen who may be able to lay down broad principles and
objectives but are certainly not competent to determine the minor details. The details should
be worked out by the experts. Delegated legislation helps in making use of the expert
knowledge and working out details on correct lines.
(e) Experimentation in New Fields Possible:

Making of experiments in such fields as Town Planning is possible through delegated

legislation. Dr. White has rightly remarked, “In entering new fields the first administrative
rules may be relatively innocuous with gradual stiffening until the full intent of the statute is
achieved. Meanwhile the interest to be regulated is adjusting itself and the mixture of
persuasion with command may produce better results than immediate insistence on all
requirements.”

Even Donoughmore Committee stated that the delegated legislation “permits of experiment
being made and thus affords an opportunity, otherwise difficult to ensure, of utilizing the
lessons of experience. The advantage of this in matters, for instance, like town-planning, is
too obvious to require detailed emphasis.”

(f) Unforeseen Contingencies Adequately Met:

Parliament is not omniscient. It can hardly foresee all sorts of contingencies which may arise,
if a particular scheme is to be implemented. Hence the administrative officials must be
equipped with discretionary powers to deal with such type of situations, by issuing rules and
regulations.

(g) Avoidance of Litigation:

Administrative legislation permits a definite statement of policy thus avoiding possibility of

litigation or compulsion. According to White, “The avoidance of litigation as far as possible
is a definite gain.”

(h) Prompt Action in Emergencies:

Parliament is in session for a few months in a year. If emergencies crop up during its interval,
they cannot be tackled promptly till the Executive is empowered to meet them through its
power of issuing rules and regulations.

(i) Proper Drafting of Rules:

Since rule-making power is exercised, keeping in view actual situation, by the experts
deputed for the purpose by the executive, drafting of rules is apt to be more perfect. In short,
delegated legislation is a suitable answer to the rapidly increasing needs of the present-day
changing society which necessitates a progressive attitude and an adaptation of policies to the
changing circumstances.
Disadvantages of Delegated Legislation:

Despite its marked popularity, the system has been vehemently criticized by critics like Lord
Hewart and C.K. Allen. Hewart describes it as ‘triumph of bureaucracy.’ Dicey 30 years after
writing on rule of law remarked (in 1915) ‘Rule of Law is exposed to New Peril’ due to the
growth of delegated legislation.

Following are the main points of criticism advanced against it:

(a) Individual Liberties at Stake:

It is apprehended that vesting of discretionary powers with the officials turns democracy into
despotism. Concentration of legislative and executive authorities results in jeopardizing the
liberties of the individuals.

According to Hewart, vesting of this power of making rules with the Executive amounts to
“subordinate Parliament to evade the courts and to render the will or the caprice of the
Executive unfettered and supreme.”

(b) Delegation of Unlimited Powers:

Once this process of delegating of legislative powers commences, it is apprehended that

unlimited powers may be delegated to the Executive. In India, for instance, the legislature has
been passing skeleton bills, giving blanket powers to the Executive.

The Local Government Acts, for example, bestow upon the Executive the power of
constituting, suspending and superseding the Municipal authorities, even of determining the
size of the Municipal Councils and mode of election or appointment.

Likewise, the Estate Duty Act empowered the Central Government to impose or vary
taxation. In the words of Kemp, “When the Charter is so indefinite, the courts certainly
cannot control it, and parliament can do so only by revoking it altogether…”

(c) Jurisdiction of Courts Ousted:

Delegated legislation often seeks to oust the jurisdiction of the courts. This results in
depriving the citizens of judicial protection. The Enabling Act may clearly specify that the
rules made there under shall not be called in question in any court of law.

In the words of Lord Hewart, “It is the abuse of the system that calls for criticism and perhaps
the greatest abuse and the one most likely to lead to arbitrary and unreasonable legislation is
the ousting of the jurisdiction of the Courts.”
(d) Interest of the People Ignored:

It is generally contended by the critics that it may serve the interests of the influential parties
or the interested groups, thus ignoring the interests of the general masses. The Enabling Acts
always require the rule making authority to consult the interested parties before framing the
rules. This may consequently result in ignoring of the common interests.

(e) Judicial Remedy Costly:

Judicial remedy, though constitutionally provided to the citizens, is generally costly and fairly
cumbersome. In India, prior approval of the government has to be secured before any
administrative authority can be sued in the court.

(f) Publicity of these Rules Poor:

The people generally suffer because the rules are not brought home to them. Though the
Enabling Act provides that the Government would give proper publicity to the Rules and
Regulations, yet in general proper publicity to such rules is not given. This adversely affects
the interest of the people.

(g) Democratic Principle Undermined:

Generally taxation power is also delegated. Such a delegation undermines a famous

democratic principle, ‘No taxation without representation’. For example, Estate Duty
(Controlled Companies) Rules, 1953 empowered the Executive in India to impose or vary
taxation. These rules were, however, withdrawn.

(h) Privileged Position of the State:

The critics opine that even if judicial remedies are available the citizens cannot expect a fair
deal from the courts especially when they are pitched against the State. In India, in particular,
the State enjoys such an envious position.

(i) Retrospect Effect Unfair:

It is opined that these sub-laws are sometimes applied with retrospective effect. This is rather
unfair. Even the British Select Committee on Statutory Instruments observed that rules
“should not purport to have retrospective operation unless Parliament had expressly so
provided.”

(j) Inadequate Scrutiny:

Inadequate scrutiny of the rules and regulations by parliament makes delegated legislation
develop into despotism. Though parliament’s main function is to control the executive, yet
parliamentary scrutiny of delegated legislation has been inadequate and not very critical.

As such, it has failed to keep the executive on the rails. The Donoughmore Committee,
therefore, expressed the fear that “there is a danger that the servant may be transformed into
the master.”
(k) Confusion and Chaos:

It is contended that too much flexibility leads to confusion and causes chaos. Hence it very
adversely affects the administration.

Though these points of criticism have some weight in them, yet delegated legislation cannot
be avoided. It is in fact a necessary evil. It is necessary because Parliament lacks time to
enact detailed legislation on all kinds of subjects on which laws have to be made. It is also an
evil because it gives to Caesar what does not, in fact, belong to Caesar.

Moreover, the delegated power is likely to be abused in the absence of adequate safeguards
and proper vigilance. Donoughmore Committee rightly pointed out, “The system of delegated
legislation is both legitimate and constitutionally desirable for certain purposes within certain
limits and under certain safeguards.”

Safeguards in Delegated Legislation to avoid its pitfalls:

1. The Enabling Acts should specifically define the powers delegated. The use of vague terms
as ‘in common interest’, ‘reasonable variations’ may be avoided as they give vast
discretionary powers to the executive.

2. The jurisdiction of the courts should not be ousted. Donoughmore Committee rightly
pointed out, “The rule of law requires that all regulations should be open to challenge in the
courts except when Parliament deliberately comes to the conclusion that it is essential in the
public interest to create an exception and to confer on a Minister the power of legislating with
immunity from challenge.”

Thus the power of judicial review should vest with the courts. That will check the excesses of
delegated legislation.

3. The executive should take into confidence the outside interests directly affected by the
proposed exercise of rule making powers. If divergent interests are to be catered to, a
standing Consultation Committee representing all interests should be appointed to give
suggestions to the executive.

4. Explanatory notes should be added to all the regulations so that the layman is fully
acquainted with the necessity of a particular regulation. An Explanatory Memorandum be
added with the Enabling Act indicating clearly what types of regulations should be made
under the Bill if it is enacted.
5. Rules and regulations should be published and given proper publicity. In India, for
instance, elaborate rules have been laid down in this respect. In U.S.A. also the
Administrative Procedure Act lays down certain conditions specifically.

6. Parliamentary control over delegated legislation is a proper safeguard against abuse of this
power by the Executive. In India and Great Britain, an elaborate system of parliamentary
control over delegated legislation has been provided. Kersell eulogizes this safeguard when
he opines, “The most appropriate institution to supervise the use of delegated legislative
powers is parliament…”

7. Rule making authority should be delegated to a trustworthy authority approved by the

Parliament. In India and U.S.A. where doctrine of supremacy of constitution prevails, the
legislature cannot delegate its law-making power to any extent.

It cannot delegate its substantive legislative power. In the U.S.A. where doctrine of
separation of powers prevails, law-making is the monopoly of the Congress. Its delegation
should be normally unconstitutional.

To meet the exigencies of modern times, the law courts have invented doctrine of
‘subterfuge’ which permits the delegation of subordinate legislation. In a leading case Field
vs. Clerk the Supreme Court held, “The legislature cannot delegate its power to make a law
but it can make a law to delegate a power to determine some fact or state of things upon
which the law intends to make its own action depend.”

In India, there is no specific or explicit provision in the Constitution empowering Parliament

to delegate its law-making power. However, there are several provisions wherein the
authority to delegate can be inferred. The term ‘Law’ as provided in Article 13(3) of the
constitution includes any ordinance, order, bye-law, rules, regulations, notification etc. which
being in violation of the Fundamental Rights would be void.

Rules and regulations are not made by the legislature but by the agencies other than the
legislature, namely the executive and local bodies under the delegated authority. Besides, a
number of judicial pronouncements of the Supreme Court have justified delegated legislation.

In Vasant Lal Magan Bhai Case reported in AIR 1961 Section 4 the Supreme Court observed.
“Subordinate legislation has now become well-settled. There is nothing wrong in such
legislation because the modern conditions have compelled the legislature to entrust its duty to
administrative agencies.”

In U.K., quite a different tale is to tell. The High Court of Judicature has held, “The British
Constitution has entrusted to the two Houses of Parliament, subject to the assent of the king,
an absolute power untrammelled by any written instrument, obedience to which may be
compelled by some judicial body.”

Thus Parliament in U.K. can delegate its legislative power to any outside authority. In U.K.,
the limiting of delegated legislation is a question of policy and not of law.
Nature and Scope of Delegated Legislation

Delegated legislation means legislation by authorities other than the Legislature, the former
acting on express delegated authority and power from the later. Delegation is considered to
be a sound basis for administrative efficiency and it does not by itself amount to abdication of
power if restored to within proper limits. The delegation should not, in any case, be unguided
and uncontrolled.

Parliament and State Legislatures cannot abdicate the legislative power in its essential aspects
which is to be exercised by them. It is only a nonessential legislative function that can be
delegated and the moot point always lies in the line of demarcation between the essential and
nonessential legislative functions. The essential legislative functions consist in making a law.
It is to the legislature to formulate the legislative policy and delegate the formulation of
details in implementing that policy.

Discretion as to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive. Discretion to make notifications and
alterations in an Act while extending it and to effect amendments or repeals in the existing
laws is subject to the condition precedent that essential legislative functions cannot be
delegated authority cannot be precisely defined and each case has to be considered in its
setting.

In order to avoid the dangers, the scope of delegation is strictly circumscribed by the
Legislature by providing for adequate safeguards, controls and appeals against the executive
orders and decisions. The power delegated to the Executive to modify any provisions of an
Act by an order must be within the framework of the Act giving such power.

The power to make such a modification no doubt, implies certain amount of discretion but it
is a power to be exercised in aid of the legislative policy of the Act and cannot i) travel
beyond it, or ii) run counter to it, or iii) certainly change the essential features, the identity,
structure or the policy of the Act.

Under the Constitution of India, Articles 245 and 246 provide that the legislative powers shall
be discharged by the Parliament and State legislature. The delegation of legislative power
was conceived to be inevitable and therefore it was not prohibited in the constitution.

Further, Articles 13(3) (a) of the Constitution of India lays down that law includes any
ordinances, order bylaw, rule regulation, notification, etc. Which if found in violation of
fundamental rights would be void. Besides, there are number of judicial pronouncements by
the courts where they have justified delegated legislation.
While commenting on indispensability of delegated legislation Justice Krishna Iyer has
rightly observed in the case of Arvinder Singh v. State of Punjab, AIR A1979 SC 321, that
the complexities of modern administration are so bafflingly intricate and bristle with details,
urgencies, difficulties and need for flexibility that our massive legislature may not get off to a
start if they must directly and comprehensively handle legislative business in their plenitude,
proliferation and particularization Delegation of some part of legislative power becomes a
compulsive necessity for viability.

A provision in a statute which gives an express power to the Executive to amend or repeal
any existing law is described in England as Henry viii Clause because the King came to
exercise power to repeal Parliamentary laws.

The said clause has fallen into disuse in England, but in India some traces of it are found here
and there, for example, Article 372 of the Constitution authorizes the president of India to
adopt pro Constitutional laws, and if necessary, to make such adaptations and modifications,
(whether by way of repeal or amendment) so as to bring them in accord with the provisions
of the Constitution. The State Reorganization Act, 1956 and some other Acts similar thereto
also contain such a provision. So long as the modification of a provision of statute by the
Executive is innocuous and immaterial and does not affect any essential change in the matter.

Examples of Delegated Legislation

The British Parliament is a supreme legislative body and its powers are not subject to any
constitutional limitation. It can delegate to other bodies whatever powers it may choose. The
extent and type of powers which may be delegated is not therefore fixed.

It is free to create whatever agency it pleases and to delegate to it whatever powers it may
consider necessary. But still certain types of delegated legislation resorted to by the
Parliament till now. The Parliament can, but is not likely, to change the existing pattern.

The various examples of delegated legislation are:

1. Orders-in-Council:

A large number of orders and regulations are issued by the Privy Council. These orders and
regulations affect matters of importance. The field covered is very wide and they touch upon
the interest of the various sections of the society.

These orders are of two kinds Firstly they may be issued under the authority of the
prerogative powers of the Crown. Such orders derive the legal authority not from a grant by
the Parliament out from common law.
There is no statutory authority for making such orders and they are issued on the strength of
the prerogative powers of the Sovereign, e.g., legislature for conquered territories not
represented by the local legislature, regulation and control of trade and commerce during war,
etc.

Such orders are subject to the review by the courts like all other acts done under the authority
of the prerogative. But such orders must be given utmost weight though they cannot normally
override the ordinary law of the land.

Secondly, Orders-in-Council are issued under the authority and in accordance with the
powers givers by an Act of the Parliament. In this case the orders so made must be within the
limits laid down by the Parliament.

In both cases the principal point of consideration is whether such legislation is in any way
different from executive legislation.

The answer appears to be that there is no substantial difference between the two. The Privy
Council meeting in such cases simply means a meeting of. A few Privy Councillors including
three of four ministers, the Lord President, of the Council and the clerk in the Privy Council.

Thus it is the executive which exercises these powers and the sanction of the Council is a
mere formality. Such orders, of course, receive more publicity and the executive action is
considered or can be considered with advantage by outside elements.

2. Departmental or Executive instructions or regulations:

When the power of legislation is directly delegated to the administration, e.g., a Board,
Committee or a Minister, then the exercise thereof results in departmental or executive orders
and regulations. The Statutes of the Parliament while providing for a certain legislative
scheme leave many details to be completed by the delegate.

This type is very important and together with the previous one is responsible for the bulk of
delegated legislation. Sometimes very wide powers are conferred upon the administration.
This wide delegation is not desirable as in such case the control of administrative action by
the court becomes difficult.

It outs the control by the Judiciary, or at least it renders judicial control more difficult and
less effective. This extensive use of delegated legislation is increasing. Now only the broad
outlines are laid down by the Parliament while the rest is left to the administration.

The circulars have no legal sanction behind them in the sense that they were not issued under
the authority of any statute. They have no statutory basis and one mere departmental
instruction. They cannot ‘therefore, forms the foundation of any action aimed at ‘denying to
citizen’s fundamental right under Art.19 (1) (a) of the Constitution.
3. Rules of the Supreme Court and the County Courts:

The Parliament may, by a Statute, constitute and confer upon certain bodies the rule-making
powers for specific purposes. The Courts in England are given a wide rule-making power.
This task is entrusted to the Rules Committee of the Supreme Court and of County Courts.

The Procedural law is an important breach and a valid cause may be destroyed because of a
technical mistake. Further this body of law requires changes in the same way as substantive
law according to the exigencies of the time.

The British practice of entrusting the Judicial branch with the power of regulating and
controlling its procedural law to a great extent has the advantage that the subject is handled
by those who are most suited to perform this task.

The rules Committee of the Supreme Court completely control the procedure in High Court.
Though such rules can be overridden by an address of either House and must be placed
before the Houses, yet it is interesting to note that so far it does not seem to have been done
on any occasion.

County Court Rules dealing with the procedure and costs are drawn up by the Rules
Committee of County Courts. Such rules are not subjected to the control of the Parliament.

These rules come into force when the Lord Chancellor with the consent of the Rules Com-
mittee of the Supreme Court confirms them. This system imparts to the procedural law of the
courts a uniformity of methods and objects right from the Supreme Court down to the County
Courts.

4. Bye-laws of autonomous bodies, e.g., Corporations:

Autonomous bodies are given powers of making bye-laws affecting themselves and the
public, e.g., public utility authorities for light, water, etc.

These authorities are usually given powers to regulate their own working and to lay down
rules for the dealings with the public regulating the public behaviour with regard to the
particular service. Such bye-laws are subject to judicial review inasmuch as they must not be
ultra vires the parent Statute.

Another kind of autonomous bodies is that where the power of making bending rules is not
conferred by any statute, e.g., Trade Unions. Such bodies are recognised to have the power of
making binding rules for themselves.

The associations of Employers are another example. The rules of such associations are
termed voluntary but it is simply a fiction as in effect these rules are binding upon members
like other rules, e.g., rules of industrial organisation, professional associations, etc.
5. Bye-laws of Local authorities:

Usually whenever the Parliament either creates a new local authority or alters the powers of
an existing one, it empowers such authority to make bye-laws for specific purposes. These
authorities may be for a county, borough, or may be rural.

Such authorities exercise extensive powers for the safety, public health and generally for
good rule and government. These bye-laws like ordinary laws are binding upon all concerned
and incur penalties for their breach.

Purpose based classification of Delegated Legislation

1. Enabling Acts: - Appointed day clause: under this the executive has to appoint a
day for the Act to come into operation.

2. Extension and application Acts

3. Dispensing and Suspending Acts: - to make exemption from all or any provision
of the Act in a particular case or class of cases or territory, when circumstances warrant it.
These are meant to enable the administration to relieve hardship which may be occasioned as
a result of uniform enforcement of law.

4. Alteration Acts. : - Technically alteration amounts to amendment, yet it is a

wide tern & includes both modification and amendment.

Power to modify Acts has mostly been delegated as a sequel to the power to the power of
extension and application of laws.

The power of modification is limited to consequential changes, but, it overstepped it suffers

challenge on the ground that it is not within the legislative intent of modification.

In Queen v. Burah the Privy Council held, that the 9th section of the Act conferring power
upon the Lieutenant-Governor to determine whether the Act of any part of it should be
applied to a certain district, was a form of conditional legislation and did not amount to
delegation of legislative powers.

It is like “removing difficulty” so that the various states may coexist.

5. Power to make rules “to carry out the purpose of the Act”

6. Classifying and fixing standard Acts: - Power is given to fix standard of purity,
quality or fitness for human consumption.

7. “Clarify the provision of the statutes Acts”- To issue interpretation on various

provision of the enabling Act.
The Committee on Ministers Powers distinguished two type of parliamentary
delegation, 1932:

1. Normal Delegation: -

a) Positive: - where the limits of delegation are clearly defined

in the enabling Act.

b) Negative: - does not include power to do certain thing (these are not allowed)

2. Exceptional Delegation: -

a) Power to legislate on matters of principle (policy)

b) Power is amend Act of parliament (In re Delhi laws Acts)

(Henry VIII clause – indicate executive autocracy)

In W.B. State Electricity Board v. Desh Bandhu Gosh (1958) 3 SCC 116 it was held that
Regulation 34 of the West Bengal State Electricity Regulation which had authorized the
Board to terminate the Service of any permanent employer on three months’ notice or pay in
lieu thereof. This hire & fire rules of regulation 34 is parallel to Henry VIII clause.

Similar position was held by the court in the case of Central Inland Water Transport
Corporation Limited v. Brojo Nath Ganguly wherein rule 9 of the service rules of the CIWTC
conferred power to terminate on similar lines as in the case of Desh Bandhu Ghosh the court
went on to say that No more apt description of Rule 9(i) can be given than to call it "the
Henry VIII clause". It confers absolute and arbitrary power upon the Corporation and
therefore invalid.

Difference between Delegated Legislation and Conditional Legislation

The distinction between conditional and delegated legislation is that, in the former, the
delegated power is that of determining when a legislative declared rule of conduct shall
become effective, Hampton & Co. v. United State, (1927) and the later involves delegation of
rule-making power which constitutionally may be exercised by the administrative agent.

This means that legislature; having laid down the broad principles of its policy in the
legislation can then leave the details to be supplied by the administrative authority.

In other words by delegated legislation the delegate completes the legislation by supplying
details within the limits prescribed by the statute, while, in the case of conditional legislature
the power of legislation is exercised by the legislature conditionally leaving to the discretion
of an external authority, the time and manner of carrying its legislation into effect as to also
the determination of the area to which it is to extend.
Thus, when the delegate is given the power of making rules and regulations in order to fill in
the details to carry out and sub serve the purposes of the legislation, the manner in which the
requirements of the statute are to be met and the rights created therein to be enjoyed, ids an
exercise of delegated legislation.

But when the legislation is complete in itself and the legislature has itself made the law and
the only function left to the delegate is to apply the law to an area or to determine the time
and manner of carrying it into effect it is conditional legislation.

- Hamdard Dawakhana. V. Union of India

- Field and Co. v. Clark. (1982)

“To assert that a law is less than a law because it is made to depend upon a future event or act
to rob the legislature of the power to act wisely for the public welfare whenever a law is
passed relating to a state of affairs not yet developed or the things future and impossible to
fully know.”

The proper distinction was pointed out in this case thus: “The legislature cannot delegate its
power to make a law, but it can make to a law delegate a power to determine some fact or
state of things upon which the law makes or intends to make its own action depend.

There are many things upon which wise and useful legislation must depend which cannot be
known to the lawmaking power and must, therefore, be subject of enquiry and determination
outside the hall of legislature.

But the discretion should not be so wide that it is impossible to discern its limits. There must,
instead, be definite boundaries within which the powers of the administrative authority are
exercisable. Delegation should not be so indefinite as to amount to an abdication of the
legislative function.

The Limitation under which Delegated Legislation is Possible in India

When a legislature is given plenary power to legislate on a particular subject, there must also
be an implied power to make laws incidental to the exercise of such power. It is a
fundamental principle of constitutional law that everything necessary to the exercise of a
power is included in the grant of the power.

A legislature cannot certainly strip itself of its essential functions and vest the same on an
extraneous authority. The primary duty of law-making has to be discharged by the legislature
itself but delegation may be reported to as a subsidiary or ancillary measure.

“The Legislature cannot delegate its function of laying down legislative policy in respect of a
measure and its formulation as a rule of conduct. The legislature must declare the policy of
the law and the legal principles which are to control and given cases and must provide a
standard to guide the officials or the body in power to execute the law.”
Therefore the extent to which delegation is permissible is well settled. The Legislature cannot
delegate its essential legislative policy and principle and must afford guidance for carrying
out the said policy before it delegates its delegates its subsidiary powers in that behalf.

The guidance may be sufficient if the nature of thing to be done and the purpose for which it
is to be done are clearly indicated. The case of Harishanker Bagla v. State of Madhya Pradesh
is an instance of such legislation.

The policy and purpose may be pointed out in the section conferring the powers and may
even be indicated in the preamble or elsewhere in the Act

b. Constitutionality of Delegated Legislation

The fundamental legal question that arises in a study of delegated legislation is whether a
legislature can delegate its law-making power to other agencies. This question cannot be
answered without reference to the constitutional provisions of the country concerned. Where
a legislature is supreme and without limitations, such as, for instance, the United Kingdom’s
Parliament, which is free to make or unmake any law, it may either make a law itself or may
authorise an outside agency to do so. Within what limits, if any, it should delegate its powers
is a matter to be decided by the legislature itself, and the courts have no say in the matter. The
court cannot question the validity of any Act passed by Parliament.

Even in a country where the legislature is not supreme and possesses only such powers as are
given to it by a written constitution, legislative delegation has been held permissible, unless
expressly prohibited by the constitution, because of practical necessity of the present-day. No
modern legislature can possibly enact by itself all laws needed to regulate the multifarious
activities in the country.

As to the limits within which the legislatures can delegate powers, two views have been
advanced. First, within the legislature’s appointed field, the delegation may be unlimited;
two, that the legislature cannot transfer its power, without performing its essential function,
i.e., without laying down a policy or standard for the guidance of the delegated authority. If
the constitution is silent regarding the permissible limits of delegation, generally it falls on
the courts to determine those limits. The constitutions of the U.S.A., Australia, Canada, South
Africa and India are all silent on this point.
Pre-Constitution Period

Before the Constitution of India came into force in 1950, Indian Legislatures were the
creatures of law passed by the British Parliament and thus they were characterised as non-
sovereign law-making bodies. The question of the validity of delegation of legislative power
by an Indian Legislature was raised for the first time in the Burah case decided in 1878. S. 9
of Act 22 of 1869 passed by the Governor-General-in-Council, who then constituted the
Legislature of India, authorised the Lt. Governor of Bengal to extend to certain districts by
notification in the Calcutta Gazette “Any law or any portion of any law now in force in the
other territories subject to his government, or which may thereafter be enacted by the Council
of the Governor-General or of the said Lt. Governor for making laws and regulations. ...”

The Calcutta High Court by a majority held that the authority conferred on the Lt. Governor
to extend the Act amounted to delegation of legislative authority by the Indian Legislature,
which being a delegate of the imperial Parliament, could not in its turn further delegate it to
another. On appeal, the Privy Council reversed the decision of the High Court. In view of the
Privy Council, the High Court had fallen into error on two points viz. powers of the Indian
Legislature, and the nature and principles of legislation.

With respect to the first, it held that the High Court had wrongly applied the doctrine of
agency, i.e., “delegatus non potest delegare" in interpreting the powers of the Indian
Legislature. The Indian Legislature though limited by relevant Acts of Imperial Parliament,
yet, in its assigned scope it was not: in any sense an agent or delegate of the Imperial
Parliament but has, and was intended to have, plenary powers of legislation, as large, and of
the same nature, as those of Parliament itself-----If what has been done is legislation, within
the general scope of the affirmative words which give the power, and if it violates no express
condition or restriction by which that power is limited (in which category would, of course,
be included any Act of the Imperial Parliament at variance with it), it is not for any Court of
Justice to inquire further, or to enlarge constructively those conditions and restrictions.

The Board observed, as regards the nature and principles of legislature, that the Indian
Legislature could not create in India and arm with “general legislative authority” a new
legislative power, not created or authorised by the Constitution Act. But “nothing of that
kind, in their Lordships opinion, has been done or attempted in the case before them.” The
Board held that it was a fallacy to assume that the Lt. Governor exercised an independent
legislative power in issuing the impugned notification. The efficacy of his acts was due to the
Act of the Indian Legislature. In the instant case, the Privy Council held that the legislature
had itself determined the persons to whom the Act was to apply, the places where the Act was
to operate, the laws which were to replace the existing regulations and the extent of the power
to be conferred, in respect to these matters.

The actual enforcement of legislative determination was made in the Act by the legislature
conditional upon the exercise of discretion conferred upon the Lt. Governor.
 This was an instance of conditional legislation and where plenary powers of legislation were
conferred on Indian Legislature as to particular subjects they could well be exercised either
absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the
exercise of a limited discretion, entrusted by the Legislature to persons in whom it places
confidence, is not uncommon thing; and, in many circumstances, it may be highly
convenient. ‘

It has been interpreted as involving delegation of legislative power to the Lt. Governor. The
Benorilal's case was involved an Ordinance issued by the Govenor-General providing for the
setting up of special criminal courts for trial of certain offences. The Ordinance contained
provisions regarding the jurisdiction and procedure, etc. of such courts. It did not itself set up
any of these courts, but provided that it shall come into force in any province only if the
Provincial Government being satisfied of the existence of an emergency. .. .declares it to be
in force in the province... ” The validity of the Ordinance was challenged on the ground that it
amounted to “delegated legislation” in so far as the Governor-General sought to pass the
decision regarding the existence of an emergency to the provincial government instead of
deciding it for himself.

The Privy Council held that the Ordinance was not delegated legislation. The Governor-
General had not delegated his legislative powers at all. The Ordinance was merely: an
example of the. Not uncommon legislative arrangement by which the local application of the
provision of a Statute is determined by the judgment of a local administrative body as to its
necessity. ‘

The Federal Court decision in Jatindra Nath Gupta v. Province o f Bihar involved the validity
of the proviso to sub-sec. (3) of S.1 of the Bihar Maintenance of Public Order Act, 1937. The
Act was to remain in force for one year from the date of its commencement. The said proviso
laid down that “provincial government may, by notification on a resolution, passed by the
Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this
Act shall remain in force for a further period of one year with such modifications, if any, as
may be specified in the notification.”

The court by a majority held the proviso ultra vires as it amounted to delegation of legislative
powers. The power to extend operation of the Act with or without modification, in view of
the majority, was a legislative power and could not be left to the discretion of some other
body.

In State o f Bombay v. Narottam Das, the Supreme Court tried to narrow down the effect of
this decision by saying that the impugned Act in that ease was held to be ultra vires because it
conferred a power of modification also. Opinion was also expressed that the question of
delegated legislation in India in a broad form was neither raised nor decided in that case.
Post-Constitution Period

In re Delhi Laws Act Case After the Constitution came into force, the President requested the
Supreme Court to give its opinion on the validity of the following provisions of three
different. Acts:

(1) S. 7 of the Delhi Laws Act, 1912; The Provincial Government may, by notification, in the
official Gazette, extend with such restrictions and modifications as it thinks fit to the
Province of Delhi or any part thereof, any enactment which is in force in any part of British
India at the date of such notification.

(2) S. 2 of the Ajmer-Merwara (Extension of Laws) Act. 1947 ; The Central Government
may, by notification in the official Gazette, extend to the Province of Ajmer-Merwara with
such restrictions and modifications as it thinks fit any enactment which is in force in any
other province at the date of such notification.

(3) S. 2 of the Part C States (Laws) Act, 1950 ; The Central Government may, by notification
in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and
Nicobar Islands) or to any part of such State, with such restrictions and modifications as it
think fit, any enactment which is in force in a Part A State at the date of the notification : and
provision may be made in any enactment so extended for the repeal or amendment of any
corresponding law (other than a central Act) which is for the time being applicable to that
Part C State.

The Central Legislature which enacted the above provisions had the power to make laws
itself for the designated territories. But, instead of exercising the power itself it empowered
the provincial government in the first section and the central government in the others, to
extend, by notification, to the designated territories, present or future laws whether made by
the Central Legislature itself or by other (provincial) legislatures for their respective
territories. The power consisted of effecting such restrictions and modifications in laws as the
government might think fit, or to repeal or amend any corresponding law (other than central)
in force iii the territory concerned.

Their Lordships of the Supreme Court had held. the second , part of S. 2 of the Part C States
Act, which authorised-the-government to repeal or amend any ‘corresponding’ law, ultra
vires' the Parliament by a majority of four to three on the ground that it amounted to
delegation of essential legislative power. The rest of the provisions were declared valid by
majority of five to two. The question that was directly involved in the consideration of the
validity of the aforesaid three sections was: Could the Indian Legislature delegate its
legislative functions to another authority, and- if so, to what extent?

There could have been three possible answers to this question: (I) that the legislature could
not delegate its power at all. (2) That the legislature acting within its field could delegate the
whole of its power to legislate on a subject. (3) That the legislature could delegate within
certain limits only
As regards (1) above, none, of the judges favoured the view that delegation to an outside
authority was absolutely prohibited. The rule of law of agency "delegatus non potest delegare'
could not, all the Judges agreed be applied to the Indian Legislature either before or after the
Constitution

Relying on the earlier decisions mentioned above; in Queen v. Burnh, Emperor v. Beiiori Lai,
each of the Judges conceded that conditional legislation and subsidiary or ancillary
legislation^ were permissible. But as regards (2) and (3), the court was divided. The majority
held3 that the legislature in India whether established before or after the Constitution could,
as a rule, delegate its legislative power to other bodies subject to its exercising essential
legislative function which consisted in laying down a policy or a rule of conduct to guide the
exercise of delegated authority. Legislative policy could not be left to the discretion of the
delegate but where such policy was laid down by the legislature, the rest could be validly
delegated.

The Attorney-General’s contention that power to legislate included in its content a general
power to delegate legislative functions was denied. The minority was of the opinion that the
legislature’s power of delegation within its assigned field was unrestricted as the power to
delegate was implicit in the power to legislate. The only limitation on delegation o f
legislative power, according to the minority was that the legislature must not efface itself or
abdicate all its powers by erecting a parallel legislature.

Abdication, according to them, consisted in the legislature parting with all its legislative
power in such a way that it could not be withdrawn.® But prohibition on abdication in this
sense was, according to the majority, meaningless, since every power given to a delegate
could be called back. In the view of the majority abdication of its function by legislature
could be partial as well as complete, i.e. in respect of one legislative power or all the
legislative powers, and both were prohibited.

There is no express provision in the Constitution authorising or prohibiting delegation of

legislative powers by Parliament. However, when there is failure of constitutional machinery
in a State, the President is empowered, by Art.356 (l) (b), to “declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of Parliament.”

When this is done Art.357(l)(a) expressly provides that ‘it shall be competent for Parliament
to confer on the President the power of the Legislature of the State to make laws, and to
authorise the President to delegate the powers so conferred to any other authority specified by
him in that behalf’

Following the maxim, expression unhis est excliisio aherhts, Art.357 was interpreted as
implicitly prohibiting Parliament from delegating legislative function in other
circumstances.* Apart from Art. 357, the legitimacy of delegation depended entirely, as
Justice Mukherjea put it, upon its being used as an ancillary measure
 Parliament could validly delegate to any extent, its power of legislation, the only limitation
being that it could not, by conferring on others its capacity to legislate generally, create a new
legislature.

As regards the implied prohibition on delegation of legislative powers in other circumstances

read by the majority from the express provision of Art.357, the minority thought that the rule
expressio uniiis est exchmio alteriiis, on which such prohibition was based was misapplied."
When a State Legislature is suspended, Art. 357(1) (a) provides “it will be competent for
Parliament to delegate the powers of the suspended State Legislature to the President or other
authorities”.

Explaining the need for the article; Dr. Ambedkar said in the. constituent assembly that
‘Parliament may have already so much work that it may not be possible for it to deal with the
legislation necessary for the provinces whose legislature has been suspended under the
proclamation.

Elucidating the need to have an express provision for delegation, Shri A. Krishnaswami
explained This power to delegate is incidental to the plenary power of sovereignty vested in
Parliament. But in view o f some doubt that has been cast in a recent decision of the Federal
Court, it has been found necessary to make it quite clear that the Parliament can delegate it?
function to other body or bodies having regard to the exigencies of the situation.

It thus becomes evident from the Delhi Laws Act case that the Indian Supreme Court has
taken the same stand as the American Supreme Courts in holding that legislature cannot
delegate its essential law-making powers to other agencies^ and discarded the English
doctrine of what Mr. Justice Sastry (as he then was) called, ‘supremacy within limits’.

It may be noted here that the majority judges did not rely for their conclusions on the theory
of separation of powers which in America led to the inference of a rule against delegation of
legislative powers. All the Judges in Delhi Laws Act case were of the view that the theory of
separation of powers in the American sense was not incorporated in the Indian Constitution.

But the majority imported the same doctrine, at least in a limited sense, through the backdoor.
Kania C.J., and Mahajan, J„ expressed the view that since the constitution had made detailed
provisions regarding the legislature and the executive, it contemplated that the essential
legislative function should be exercised only by Parliament.

This view was affirmed by the court four years later in an unanimous judgment written by
another majority judge of the Delhi Laws Act Case, in Ram Jawaya v. Stat£ of. Punjab,

Subsequent Decisions Clarifying the Delhi Laws Act Case In Hari Shankar Bagla v. M. JP.
State, the Supreme Court unanimously deduced a binding rule from its earlier decision in the
Delhi Laws Act case to the effect that essential powers of legislation could not be delegated.
In other words, the legislature could not delegate its function of laying down legislative
policy in respect of any measure and its formulation as a rule of conduct. The legislature must
declare the policy of the law and the legal principles which were to control any given cages
and must provide a standard to guide the officials or the body in power to execute law.
The essential legislative function consisted in the determination or choice of the legislative
policy and of formally enacting that policy into a binding rule of conduct.

The Supreme Court in Rajnarain Singh v. Chairman, Patna Administration Committee

analysed in detail the Delhi Laws Act case with reference to specific powers delegated
therein. The court in that case had the following problems: In each, case, the Central
Legislature had empowered an executive authority under its legislative control to apply, at Its
discretion laws to an area which was also under the legislative sway of the Centre. T h e
variations occur in the type of laws which the executive authority was authorised to select
and m the modifications which it was empowered to make in them.

The variations were as follows:

(1) Where the executive authority was permitted, at its discretion, to apply without
modification (save incidental changes such as name and place), the whole of any Central A ct
already in in any part of India under the legislative sway of the C entre to the new area ; This
was upheld by a majority of such to one.

(2) W here the executive authority was allowed to select and apply a Provincial Act in similar
circumstances: This was above upheld, but this time by a majority of five to two.

(3) W here the executive authority was permitted to select future Central laws and apply them
in a similar way: This was upheld by five to two.

(4) W here the authorisation was to select future Provincial laws and apply them as above.
This was also, upheld by five to two.

(5) W here the authorisation was to repeal laws already in force in the area and either
substitute nothing in their places or substitute other laws, Central or Provincial, with or
without modification: This was held to be ultra vires by a majority of four to three.

(6) W here the authorisation was to apply existing laws, cither Central or Provincial, with
alterations and modifications;

(7) W here the authorisation was to apply future laws under the same conditions. T h e view
of the various members o f the bench were no t as clear cut here as in the first five cases.

Their Lordships after looking to the above problems and relying on the majority view given
in the Delhi Laws Act case held that an executive authority can be authorised to modify either
existing or future laws but not in any essential feature.
c. Control Mechanism

The practice of conferring legislative powers upon administrative authorities though

beneficial and necessary is also dangerous because of the possibility of abuse of powers and
other attendant evils.

There is consensus of opinion that proper precautions must be taken for ensuring proper
exercise of such powers. Wider discretion is most likely to result in arbitrariness.

The exercise of delegated legislative powers must be properly circumscribed and vigilantly
scrutinized by the Courts and the Legislature. The control by the Court and the Legislature is
not by itself enough to ensure the advantage of the practice or to avoid the danger of its
misuse. For the reason, there are certain other methods of control emerging in this field.

The control of delegated legislation may be one or more of the following types:-

(1) Procedural;

(2) Parliamentary; and

3) Judicial.

i. Parliamentary Control of Delegated Legislation

Delegated legislation is often described as that which proceeds from any authority other than
the sovereign power and is, therefore, dependent for its continued existence and validity on
some superior or supreme authority. This dependence can often take the form of checks and
controls, namely, parliamentary or legislative control; procedural control and judicial
control.

Delegated legislation is often criticized as an excuse for the legislators, a shield for the
administrators and a provocation for the Constitutional purists. However, the very mechanism
of delegated legislation cannot and should not be reduced to an evil because it is at the end of
the day a necessity. In the modern world where social, economic, technological, and
administrative speed outstrips the placid traditional legislative processes, delegated
legislation is an essential means of survival.

Thus, since it is the legislature which delegates power, it is primarily for it to supervise and
control the exercise of this power, and ensure against its objectionable, abusive &
unwarranted use.

This paper attempts to analyze the various forms of parliamentary control over delegated
legislation at both levels, first at the time of passing the enabling act and the second at the
when the legislature scrutinizes the delegated legislation. An effective comparison is sought
to be made by comparing the Indian standards with that of the United Kingdom and the
United States of America.
1: Direct General Control

The first form of parliamentary control is exercised at the time of passing the enabling act.
This is the proceedings in the Parliament which are in the nature of general and direct control.

In India, various methods and mechanisms are used such as debates on the delegating bill
which include aspects such as the necessity, extent, type of delegation and the authority to
whom power is delegated. Further, any member may ask questions on any aspect of
delegation of legislative powers and if dissatisfied can give notice for discussion under Rule
59 of the Procedure and Conduct of Business in Lok Sabha Rules.

Budget cuts during a vote of grant and discussions on delegation through a private members’
Bill seeking modifications in the parent act or through a debate at the time of discussion on
the address by the President to the joint session of Parliament are also useful.

However, in India as in the U.K. these methods are rarely used. This is purely because of lack
of convention or practice. Scholars however believe that this method should be used
extensively and effectively so as to nip the vices of delegation in the bud.

In this the important aspect is the laying requirement which means that the rules have to be
placed before the Parliament. Laying comes into play after the rules are made and it assumes
three major forms depending on the degree of control which the legislative may like to
exercise.

(a) Simple laying (i.e. laying with no further direction): In this, the rules inform house come
into effect as soon as they are laid. It is simply to vides that the rules shall be laid before
parliament as soon as they are made or published. It is directory in nature.

(b) Negative laying or subject to annulment or modification: The rules come into force as
soon as they are placed before Parliament but cease to have effect if disapproved by the
Parliament in specified time i.e. within 40 days. It is directory in nature unless and until
annulled by the Parliament.

(c) Affirmative Laying: The technique may take two shapes:

(i) That the rules have no effect unless approved by a resolution of both houses of parliament.

(ii) That the rules shall cease to have effect unless approved by affirmative resolution. This
technique necessitates a debate in every case thus one object of delegation (viz. saving the
time of Parliament) is to some extent defeated. This requirement is mandatory in nature
because rules made in draft form shall be placed before both the houses of parliament for
approval and then they will come into force after they have been approved. If this procedure
is not followed it affects the legal validity of rule.
Therefore this procedure is sparingly used and reserved to cases where the order almost
amounts to an Act by effecting changes which approximate to true legislation, and cases
where the spending of public money is affected or where the order replaces local Acts or
provisional orders. Amongst all three methods simple laying is hardly used and negative
resolution is the commonest form of laying.

Legal consequences of non compliance with the laying provision

In India, the position is not categorical, the consequence of non compliance with the laying
provisions depend on whether the provisions in the enabling Act are mandatory or directory.

Test for mandatory.

1. Where the laying requirement is a conditions precedent to bring the rules into force then in
such a case the laying requirement is mandatory in nature.

2. Where there is a provision that the rules be in draft form then such form states that laying
is mandatory in nature.

Test for Directory

Where laying requirement is subsequent to bring the rules into operation then the laying
requirement will directory in nature.

This issue of mandatory or directory was debated at length in Atlas Cycle Ind. Ltd. V. State
of Haryana (AIR 1979 SC 1149) the Section 3(6) of Essential Commodities Act, 1955
provided that rules made by the central government shall be laid before the parliament as
soon as they are made. Accordingly the central government made a rule, making Iron and
Steel are essential commodities. On spot checking the development officer found that the
company had purchased instituted against the company. The company contended that this
suffered from procedural ultra vires as it has not been laid before the Parliament. The Court
held that the Section required simple laying hence it is directory in nature and not mandatory
in nature. In case of simple laying the rules come into force the moment they are laid before
the legislature and they do not require any action on the part of the legislature to come into
force.

The Supreme Court observed two considerations for regarding a provision as directory-

1. Absence of any provision for the contingency of a particular provision not being complied
with or followed.

2. Serious general inconvenience and prejudice that would result to the general public if the
act of the Government or an instrumentality is declared invalid for non- compliance with the
particular provision.
2: Direct Special Control

Concern for popular control of increasingly extensive administrative activities has brought
forth various proposals by which congressional supervision can be maintained. Prominent
among these remedies is the device of “laying on the table", which requires that
administrative “legislation" made under delegated authority be presented to the legislature for
approval.

“Laying" may take various forms such as laying with no further direction wherein the
purpose is to simply inform the House. Laying subject to negative resolution implies the
coming into force of the rules with the exception that it shall cease to have effect if the House
annuls it.

Another form is laying subject to affirmative resolution where the rules need approval for
coming into effect or else they cease to be in operation until such resolution. The process of
laying in draft subject to negative resolution means that within 40 days of laying, the rules
will come into force unless disapproved and laying in draft subject to an affirmative
resolution is coupled with the power of modification and then approval.

In America, even though the concept of strict separation of powers makes parliamentary
control rather invisible, Reorganisation Acts of 1939 to 1945 provided that the Presidential
organizational plans were not to have any effect for a specified period during which they
could be annulled by any Congress through a concurrent resolution of both the Houses.

In England, on the other hand, this requirement of laying is used effectively and
extensively. The Statutory Instruments Act, 1946 clearly lays down uniform provisions such
as deferring the legislation until approval of House; coming into effect of legislation subject
to disapproval by House; sending notification to Lord Chancellor and Speaker of House of
Commons in case such provisions cannot be maintained.

It is also important to assess the legal consequences of non-compliance with laying

provisions. In England Section 4(2) of the Statutory Instruments Act, 1946 makes laying
provisions mandatory and hence, any violation would lead to nullity of the legislation or
rendering the rule void.

However, in India, the dichotomy remains as the courts judge if they are mandatory or
directory and then proceed to judge the legal consequences. A careful analysis of few cases
will show the confusion inherent.

In the case of Narendra Kumar v Union of India, Section 3(6) of the Essential Commodities
Act, 1955 which reads as, “Every order made under this section by the Central Government
or by any officer or authority of the Central Government shall be laid before both Houses of
Parliament, as soon as may be, after it is made" was called mandatory primarily because of
the words “shall be laid".
However, this ruling was not followed as such in the case of Jan Mohammad v State of
Gujarat. In this case, Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939
prescribed a similar laying procedure. The rules were framed in 1941 however were not laid
before the legislature in its first session citing World War II as a lawful emergency.
Thereafter, the rules were laid before the Houses of Parliament in its second session.

The Court did not stand by its previous interpretation and in fact held that the Act did not
prescribe that the rules acquired validity only from the date on which they were placed before
the Houses of Legislature. Thus laying was not mandatory. Further, since the Act did not
categorically say that if the rules were not placed in the very first session itself, they would be
invalid, inferring the same is not required.

Even assuming that the above was not really a deviation as it was due to certain special
circumstances, the ruling in Atlas Cycle Industries v State of Haryana was clearly a very
doubtful.

In Atlas Cycle Industries case, the same provision of the Essential Commodities Act, 1955
was under consideration as in the Narendra Kumar case. The Court gave a surprisingly
different verdict when it left the tool of literary interpretation to lay down different standards
in case of delegated legislations. It held that, “Two considerations for regarding a provision
directory are (i) Absence of any provision for the contingency of a particular provision not
been complied with and (ii) Serious general inconvenience and prejudice to the general
public, if rules are declared invalid. On applying these two principles to the facts in hand, it
held that Section 3(6) does not stipulate negative or affirmative resolution by either House. It
is not subject to the approval or disapproval of Parliament.

Further, the section does not stipulate any period of time or a penalty for non-observance.
Hence, simple use of the words “must" or “shall" do not determine the nature of the laying
provisions.

It is therefore seen that lack of a uniform and general law has lead to very ambiguous
interpretations which do not give any clear direction as to the position of law.

3: Indirect Control

This form of control is exercised by the Parliament through its Committees. In 1950, the then
Law Minister made a suggestion that Indian Parliament should also have a Committee on the
lines of those present in England. Pursuant to this, The Committee on Subordinate
Legislation of Lok Sabha was appointed on December 1, which comprised 15 members
nominated by the Speaker for one year. The Chairman is appointed by the Speaker from
amongst its members. A similar Committee was established in the Rajya Sabha in 1964. In
England, it is a rather healthy tradition to appoint the Leader of Opposition as Chairman.

The main functions are to examine whether rules comply with the general object of the Act
and the Constitution; whether the Act is better equipped to deal with matters delegated in the
rules; does the delegated authority deal with imposition of tax.
This Committee has also suggested various means by which the process of delegated
legislation in India can be better organized and effective. It states that all enabling Acts must
mandate laying in a language which is simple, clear and concise. Ambiguity or unnecessary
wideness should be avoided. Any financial levy or tax should not be imposed by rules as it
contains the latent threat of financial abuse and corruption by the authorities.

A very coherent policy should be laid down by the Legislature so that the Executive can
frame rules only within those parameters. Even then, the power of the Parliament to modify
and the courts’ power of judicial review should not be curtailed in any manner. Further,
inordinate delay must not be excused and rules themselves should be self-explanatory so as to
avoid unnecessary confusions regarding purpose and intention.

This control is exercised by Parliament through its committees. Such a committee known as
the committee on subordinate legislation of Lok Sabha set up in 1953 and consist of 15
members appointed by Lok Sabha Speaker for a period of one year. Another committee on
subordinate legislation known as Rajya Sabha committee constitutive in 1964 consist of 15
members nominated by chairman of Rajya Sabha & it holds office till new committee is
formed.

The committee is assigned the task to scrutinize and report to the House, whether the power
to make regulations, bye laws, etc conferred by the constitution or delegated by the
Parliament are being properly exercised within such delegation Ministers can become
members of this committee. The main function of the committee shall be to examine:

1. Whether the rules are in accordance with the general object of Act.

2. Whether the rules contain any matter which could more properly be dealt with in the Act.

3. Whether it conations imposition of tax.

4. Whether it directly or indirectly bars the jurisdiction of the court.

5. Whether there have been unjustified delays in its publication or laying.

6. Whether it is retrospective in nature.

7. Whether it involves expenditure from the consolidated fund.

8. Whether it is safeguard of principle of natural justice.

The government attaches great weight to the committee’s report and tires is implement its
recommendations. The biggest drawback is that is cannot strike know delegated legislation
on the basis of being excessive in nature; it is just recommendatory in nature not corrective.
ii. Judicial Control of Delegated Legislation

The Indian Constitution has established a Welfare State (Bharat Bank Vs. Employees of
Bharat Bank, AIR 1950 SC) which mandates that the State shall legislate on innumerable
activities touching human lives in order to promote the ‘maximum happiness of the
maximum number of people’. Consequently the State has to undertake legislation on a variety
of subjects. In view of this increasing legislative activity, the legislatures will not find
adequate time to legislate on every minute detail and limit themselves to ‘policy matters and
leaving a large volume of area to executives to frame rules to carry out the purposes of
legislation. Thus, the need for delegation became indispensable and it was sought to be
justified on grounds of ‘speed’, flexibility and adoptability’

The application of law to changing circumstances was made feasible through the instruments
of ‘rules’ framed by the executive. It is not a surprise to find that during the years (1973-77)
spanning a period of 4 years Parliament enacted 300 statutes but the rules framed by the
executive exceeded 25000. This has been observed by the apex court in the Arvind Singh’s
case.

Legislatures having delegated their powers, have to bear the responsibility to ensure that the
delegatee shall not over-step the legitimate domain and commit a violation by exceeding or
abusing the powers delegated. Thus, the legislatures have to control the delegated legislation
and if not, executives may exercise the delegated power to become a potential dictator or
even becoming a parallel legislature. This legislative control over delegated legislation has
become a ‘living continuity as a constitutional necessity’

The rule of majority in democratic systems have virtually made legislative controls
ineffective. A similar statement is found in Wade & Forsyth A more serious observation has
been made by Mr. Lloyd George to the effect that ‘legislatures have no control over the
executive”. All these observations are pointers to the view that had the Parliamentary control
over delegated legislature been effective, the need for judicial control would not have arisen
or probably reduced to the minimum. This has not been so, hence, judicial control has
become an inevitable necessity to prevent executives acting as super-legislatures or potential
dictators.

Pre-constitutional control to post-constitutional judicial control found a big shift from the
scrutiny of delegated legislation confined to the area of sub-delegation from British
Parliament to Indian legislature- Empress Vs. Burah (1877)3 Cal P.63 and Jitendranath Gupta
Vs. Province of Bihar, AIR 1949 FC P.175; and laying down a fundamental principle of
delegation in the post-constitutional era In Re Delhi Law Act case AIR 1951 SC P.332 which
can be stated as follows:- “Legislatures cannot delegate their essential legislative powers.
Essential legislative powers relate to the determination of the policy of the legislature and of
rendering that policy into a binding rule of conduct”.
 In other words, delegation of legislative power can be confined to ‘non-essentials’ or
subsidiary matters. Delegation of legislative powers of essential nature would be invalid. This
has come as a first principle laid down in the area of judicial control and subsequently
expanded to a number of rules laid down by the judiciary.

These principles can be stated as follows:-

i) If the law is ex-facie unconstitutional it cannot be legalized by a Parent Act which

is constitutional. In other words, an unconstitutional legislation cannot be
legalized by a valid Parent Act - Narendra Kumar Vs. Union of India, AIR 1969
SC P.430
ii) Rules farmed violating Parent Act are illegal- Municipal Corporation of Greater
Bombay Vs. Nagpal Printing Mills AIR 1988
iii) Rules framed violating any other Statute or inconsistent with any other law are
also illegal and void- Hindustan Times Vs. State of U.P. AIR 2003 SC
iv) Delegated legislation must be reasonable or do not suffer from unreasonableness.
This has been ruled in Chandra Bhan’s case
v) Delegated legislation shall not be arbitrary or suffer from arbitrariness- Indian
Express Newspaper Vs. Union of India, AIR 1985. This is necessary to protect the
“rule of law”;
vi) Delegated legislation made with malfides or improper motives are held illegal-
D.C.Wadhwa Vs. State of Bihar, AIR 1991
vii) Forbidding sub-delegation and the powers being delegated- Ajaile Singh Vs.
Gurubachan Singh AIR 1965 SC P.1619 or delegatee exceeding the powers-
Radhakrishnan Laxminarayan Vs. State AIR 1952 are equally held void;
viii) ‘Finality clauses’ in Statutes or rules made there under, exclusive evidence,
clauses - Union of India Vs. Tarachand Gupta, AIR 1971 SC P.1558 or ‘as if
enacted clauses’21 were also reviewed on the basis of their compliance with the
principles of natural justice and also in the light of Art 226 and Art 32 of the
constitution vesting powers in the High Courts and Supreme Court respectively.
Constitutionally vested jurisdiction cannot be taken away by ordinary legislation;
ix) ‘Retrospective effect’ clauses giving effect to the law or rules with retrospective
effect - B.S.Yadav’s Vase (1981) SCC (L&S) P.343 Such clauses not only
reverses the reasonable anticipation of the people and may also deprive people of
their accrued rights - A.V.Nachane’s case AIR 1982 SC P.1126
x) Delegated legislation exercised being against public standards or public morality.
xi) Doctrines like ‘Proportionality’- Jitender Kumar Vs. State of Haryana (2008)2
SCC P.161 and legitimate expectations- State of M.P.Vs. Hazarilal (2008)3 SCC
P.273. and public accountability- State of Bihar Vs. Subesh Singh AIR 1997 SC
P.1390 have become grounds of judicial review of the law and rules framed;
xii) Cases have also been reviewed on the grounds of procedural ‘ultra vires’ i.e., not
following the procedures which are mandatory in framing the rules;
 Since ‘Judicial review’ forms an important feature of the basic structure of the
Constitution, it cannot be taken away even by an amendment to the Constitution. This has
now raised a few problems relating to judicial control over delegated legislation, such as:
i. How to make the Judiciary responsible for exceeding its legitimate limits?

ii. How to ensure that judiciary acts only in cases where the delegated legislation
assumes the character of its being a super-legislatures or parallel legislature?

iii. How to ensure that Judicial Control to preserve the ‘rule of law’

iv. How to ensure proper exercise of power by Judiciary.

In the fitness of things, it would be proper to suggest that the rules laid down by the
Judiciary may be codified, so as to confine its powers to the norms already laid down. It
is also necessary that the Supreme Court must frame rules under Art 141, which would be
law binding under Art 144 limiting its powers judiciously and not to overstep its
legitimate sphere.

In other words, self –imposed rules by the supreme court may be a good solution to the
problems of Judicial control being made accountable, legitimate and confined to
constitutional limits to protect and preserve the Constitution and ‘rule of law’. It would be
worthwhile to remember the famous observation of Justice Frankfurter which is in these
words: “Judicial review is not immune against human weakness. It also must be on guard
against encroaching beyond its bounds, and not the less so, since only restraint upon it is
self-restraint”.

It is hoped that the apex court will frame rules relating to its power of review in the
sphere of delegated legislation, so that it could serve as guidelines to all High Courts and
also to the Govt., to keep in mind while framing rules as well to the legislatures, while
enacting laws. It will go a long way in preserving the constitutional powers and the rule
of law in a democratic society like ours.

Power of Parliament to repeal law

Under the provision to clause (2) of Article 254, Parliament can enact at any time any law
with respect to the same matter including a law adding to, amending, varying or repealing the
law so made by the Legislature of the State, Ordinarily, the Parliament would not have the
power to repeal a law passed by the State Legislature even though it is a law with respect to
one of the matters enumerated in the Concurrent List. Section 107 of the Government of India
Act, 1935 did not contain any such power.
Art. 254 (2) of the Constitution of India is in substance a reproduction of section 107 of the
1935 Act, the concluding portion whereof being incorporated in a proviso with further
additions. Now, by the proviso to Art. 254 (2), the Indian Constitution has enlarged the
powers of Parliament and, under that proviso, Parliament can do what the Central Legislature
could not do under section 107 of the Government of India Act, and can enact a law adding
to, amending, varying or repealing a law of the State when it relates to a matter mentioned in
the concurrent List.

Therefore the Parliament can, acting under the proviso to Art. 254 (2) repeal a State Law.
While the proviso does confer on Parliament a power to repeal a law passed by the State
Legislature, this power is subject to certain limitations. It is limited to enacting a law with
respect to the same matter adding to, amending, varying or repealing a law so made by the
State Legislature.

The law referred to here is the law mentioned in the body of Art. 254 (2), It is a law made by
the State Legislature with reference to a matter in the Concurrent List containing provisions
repugnant to an earlier law made by Parliament and with the consent to an earlier law made
by Parliament and with the consent of the President. It is only such a law that can be altered,
amended, repealed under the proviso.

The power of repeal conferred by the proviso can be exercised by Parliament alone and
cannot be delegated to an executive authority. The repeal of a statute means that the repealed
statute must be regarded as if it had never been on the statute book. It is wiped out from the
statute book. In the case of Delhi Laws Act, 1951, it was held that to repeal or abrogate an
existing law is the exercise of an essential legislative power. Parliament, being supreme, can
certainly make a law abrogating or repealing by implication provisions of any pre-existing
law and no exception can be taken on the ground of excessive delegation to the Act of the
Parliament itself.

Delhi Laws Act Case:

In this case the power given to the Central Government to repeal pre-existing laws was held
to be ultra vires.

Chintaman Rao’s Case:

(1951 S.C.I 18) Article 13 has a specific impact upon the validity of all the rules and bye-
laws. In Chintaman Rao’s case the notification of a Deputy Commissioner prohibiting the
manufacture of bee dies during the agriculture season was invalidated on the ground of its
violating Article 19 (1) (g).
Chadran v. R. (1952) Alld. 793:

A rule or bye-law must be within the power entrusted to the legislature. For example an Act
of the U.P. State was devised to control the transport of goods and passengers by ferries and
authorised the Commissioner to make rules for the safety of the passengers and property. But
actually the Commissioner forbade the establishment of private ferries within a distance of
two miles from another ferry. That rule was struck down.

Delegated Legislation and Ultra Vires

The delegated legislation will be ultra vires the enabling Act if it is not made in accordance
with the procedure prescribed by such Act.

However, rules become invalid on the ground of noncompliance with the prescribed
procedure only if such procedure is mandatory. The mandatory provisions can take three
forms, namely:

(a) Consultation with the affected interests or an expert body

(b) Publication of delegated legislation; and

(c) Laying the rules before the legislature.

As regards the consultation with the affected interest, before the making of subordinate
legislation, it is regarded as mandatory. In Banwarilal Agarwal v. State of Bihar (AIR 1961,
S.C. 849), the Supreme Court held that the provision under the Mines Act, 1952, before
framing regulations was mandatory and failure to consult the Mining Boards (Constituted
under Section 12 of the Act) invalidated the regulations.

As regards the effect of non-publication of delegated legislation, the courts regard it as void.
In Harla v. State of Rajasthan, AIR 1951 S.C. 467 the Supreme Court held that the rules of
natural justice demanded that a law must be promulgated or published before it was enforced.

Thirdly, it is mandatory to lay the rules before the Legislature. In the Kerala Education Bill
1957, the Supreme Court made an observation that when rules were required to be laid before
Parliament after their publication in the Gazette, such rules become operative after they were
so laid for the stipulated period.

Some legislators seek to exclude the judicial review of the rules made under a statute. This
practice was definitely deplored by the Committee on Ministers’ Powers in England. In India,
judicial review is of considerable significance.

The subordinate legislation is not immune from judicial review. The Courts have held that the
validity of a rule whether it is declared to have effect as if enacted in the Act or otherwise is
always subject to judicial review.
Thus, delegated legislation is of considerable importance in the practice of public
administration. While modern government demands the use of delegated legislation, certain
controls are at the same time necessary. In deciding whether or not they are sufficient in any
particular case, all the various methods must be considered.

Thus for instance, any pitfalls in legislative control could be compensated for by a practice of
consultation, and shortcomings in judicial control remedied by legislative control. There has
to be the balance between the resort to delegated legislation and its control.

In the words of Prof. Laski “there is everything to be said for, and little effective to be said
against the process of delegated legislation. Anyone who examines the kind of subject-matter
with which it deals will find that it saves a good deal of valuable Parliamentary time which
can be better used for other matters.

An extension of the list of persons, a change in the schedule of fares for taxi-cabs in London,
these, to take typical illustrations of the use of regulatory powers, are not really a threat to our
freedom if they are done under suitable safeguards by a body of Ministers, rather than by the
House itself.

The vital thing is that Parliament should be in a position to take objection to any use of the
power when it deems fit, and that it should be so able to examine what is done in its name as
to make it certain that nothing to which objection can be taken escapes from its purview.

That achieved, the system of delegated legislation, which is, in fact, far older that its critics
like to make out is an elementary procedural convenience essential to the positive state.”

Whatever may be the objections of the orthodox theorist and the logic of the doctrine of
separation of powers, we will have to admit that delegated legislation has become
indispensable almost in every country.

Limits of Permissible Delegation

When a legislature is given plenary power to legislate on a particular subject, there must also
be an implied power to make laws incidental to the exercise of such power. It is a
fundamental principle of constitutional law that everything necessary to the exercise of a
power is included in the grant of the power. A legislature cannot certainly strip itself of its
essential functions and vest the same on an extraneous authority.

The primary duty of law making has to be discharged by the legislature itself but delegation
may be reported to as a subsidiary or ancillary measure.

Edward Mills Co. Ltd. v. State of Ajmer, Mahajan C.J. in Hari Shankar Bagla v. State of
Madhya Pradesh observed: "The Legislature cannot delegate its functions of laying down
legislative policy in respect of a measure and its formulation as a rule of conduct.
The legislature must declare the policy of the law and the legal principles which are to control
and given cases and must provide a standard to guide the officials of the body in power to
execute the law".

Therefore the extent to which delegation is permissible is well settled. The legislature cannot
delegate its essential legislative policy and principle and must afford guidance for carrying
out the said policy before it delegates its delegates its subsidiary powers in that behalf-
Vasant lal Maganbhai Sanjanwala v. State of Bombay, A.I.R. 1961 S.C. 4

The guidance may be sufficient if the nature of things to be done and the purpose for which it
is to be done are clearly indicated. The case of Hari Shankar Bagla v. State of Madhya
Pradesh, A.I.R. 1954 S.C. 465 is an instance of such legislation. The policy and purpose may
be pointed out in the section conferring the powers and may even be indicated in the
preamble or elsewhere in the Act.

Excessive delegation as a ground for invalidity of statute

In dealing with the challenge the vires of any State on the ground of Excessive delegation it is
necessary to enquire whether - The impugned delegation involves the delegation of an
essential legislative functions or power, and In Vasant lal’s case (A.I.R. 1961 S.C. 4); Subba
Rao, J. observed as follows; "The constitution confers a power and imposes a duty on the
legislature to make laws. The essential legislative function is the determination of the
legislative policy and its formulation as a rule of conduct.

It cannot abdicate its functions in favour of another. But, in view of the multifarious activities
of a welfare State, it (the legislature) cannot presumably work out all the details to sit the
varying aspects of complex situations. It must necessarily delegate the working out of details
to the executive or any other agency.

But there is a danger inherent in such a process of delegation. An overburdened legislature or

one controlled by a powerful executive may unduly overstep the limits of delegation. It may
a) not lay down any policy at all; b) declare its policy in vague and general terms; c) not set
down any standard for the guidance of the executive; d) confer and arbitrary power to the
executive on change or modified the policy laid down by it without reserving for itself any
control over subordinate legislation.

The self-effacement of legislative power in favour of another agency either in whole or in

part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous
and liberal construction of on impugned statute whether the legislature exceeded such limits.
iii. Procedural Control of Delegated Legislation

Executive legislating under delegated legislation is ordinarily free from rigid procedural
requirements unless the legislature makes it mandatory for the executive to abide by a certain
procedure. This is because rigid procedural requirements may turn out to too time consuming
and cumbersome and they may defeat the very purpose of delegated legislation.

However, communication in one form or other to the general public still remains
indispensable for the law to be legally valid and binding. Hence procedural control means
certain procedures which are laid down in the parent Act which have to be followed by the
authorities while making the rules.

Delegated legislation may be challenged on the ground that it has been in accordance with the
procedure prescribed by the enabling Act. However, rules become invalid on the ground of
non-compliance with prescribed procedure only if such procedure is mandatory.

Non-compliance with the directory provisions does not render them invalid. It becomes a
case of procedural alternatives. One has to see whether the procedure is mandatory or
directory. Procedural control mechanism operates in three components:

(i) Pre-publication and consultation with an expert body or approval of an authority.

(ii) Publication of delegated legislation.

(iii) Laying of the rules before the legislature.

This procedural control mechanism may be either mandatory or directory. For the purpose of
mandatory or directory control mechanisms few important parameters should be taken into
account viz (a) Scheme of Act (b) Intention of legislature i.e. whether treated mandatory or
directory (c) language in which the provision is drafted (d) Serious inconvenience being
caused to the public at large, these were four parameters laid down in case.

- Raza Buland Sugar Co. v.Rampur Municipal Council (AIR 1965 Sc 895).

(a) Prior consultation of interests likely to be affected by proposed delegated

Legislation:

From the citizen’s post of view the most beneficial safeguard against the dangers of the
misuse of delegated Legislation is the development of a procedure to be followed by the
delegates while formulating rules and regulations.

In England as in America the Legislature while delegating powers abstains from laying down
elaborate procedure to be followed by the delegates. But certain acts do however provide for
the consultation of interested bodies and sometimes of certain Advisory Committees which
must be consulted before the formulation and application of rules and regulations.
This method has largely been developed by the administration independent of statutory
requirements. The object is to ensure the participation of affected interests so as to avoid
various possible hardships.

The method of consultation has the dual merits of providing an opportunity to the affected
interests to present their own case and to enable the administration to have a first-hand idea of
the problems and conditions of the field in which delegated legislation is being contemplated.

The method of consultation through correspondence has its own limits and therefore
sometimes meetings and conferences are held for this purpose. The practice of consultation
has regularity because of the existence of Advisory Committees of a more or less assumed
permanent nature.

The “modus-operandi” is regarded as a valuable safeguard against the misuse of legislative

power by the executive authorities. The effect of the term previous publication according to
S.23 of General Clause Act, 1897 is that:

(i) The rules should be published in draft form in Gazette.

(ii) Objections and suggestions be invited by a specific date mentioned there in, and

(iii) Those objection and suggestions be considered by rule-making authority.

In India, a provision of prior consultation, if contained in the enabling Act is considered

sometimes as mandatory and sometime as directory. In issue like environment, this
requirement is considered as mandatory in nature.

The provisions for prior consultation may take various forms:

(a) Official consultation: The central govt. is required to make rules U/s 52 of the Banking
Companies Act, after consulting the Reserve Bank of India.

(b) Consolation with statutory bodies: In charge of a particular subject.

(c) Consultation with Administrative boards.

(d) Consultation with affected persons: Municipalities, before tax imposition have to publish
draft rules in a Hindi daily and consult the inhabitants of the area. Under the industries
development and regulations act, representations from the industry and public are invited.

(e) Draft Rules and Affected interest: Under Indian Mines Act, Sec.61 empowers owner of a
time to frame or to draft rules themselves for safety etc. n mines and submit them to inspector
of mines. Such rule becomes operative on being approved by the government.

In Ibrahim vs. Regional Transport Authority (Air 1953 SC 79), consultation with the
Municipality was required to be made the Transport Authority before certain routes for buses
were fixed. The S.C. held it to be merely directory.
(b) Prior publicity of proposed rules and regulations:

Another method is antecedent publicity of statutory rules to inform those likely to be affected
by the proposed rules and regulations so as to enable them to make representation for
consideration of the rulemaking authority.

The rules of Publication Act, 1893, S.I provided for the use of this method. The Act provided
that notice of proposed ‘statutory rules’ be given and the representations of suggestions by
interested bodies be considered and acted upon if proper. But the Statutory Instruments Act,
1946 omitted this practice in spite of the omission, the Committee on Ministers Powers 1932,
emphasised the advantages of such a practice.

It is a fundamental principal of law “ignorantia jris non excusat” (ignorance of law is no

excuse) but there is also another equally established principle of law that the public must
have the access to the law and they should be given an opportunity to know the law. All laws
ought either to be known or at least laid open offend against them under pretence of
ignorance. It is essential that adequate means are adopted to publicize the rules so that people
are not caught on the wrong foot, in ignorance of the rules applicable to them in a given
situation.”

Thus, in Harla v. State of Rajasthan (Air 1951 SC 467) the council by resolution enacted the
Jaipur Opium Act which made rule that if a person carried opinion beyond a certain limit
then it was an offence committed and penalty had to be imposed on the accused & act was
never published. One Harla was prosecuted for the contravention of this law because he was
in possession of opium in more quantity than permitted. He contended that it was a case of
procedural ultra vires. Holding that the law was not enforceable the Supreme Court
observed. “promulgation or publication of some sort is essential otherwise it would be against
principles of natural justice to punish the subject under a law of which they had no
knowledge and of which they could not even with the exercise f reasonable diligence be said
to have acquired any knowledge.”

In Narendra Kumar vs. U.O.I. (AIR 1960 Sc 430) Sec.3 of Essential commodities Act, 1955
required all the rules to be made under the Act to be notified in official gazette. The
principles applied by licensing authority for issuing permits for the acquisition of non-ferrous
metals were not notified. The S.C. held the rules ineffective because the mode of publication
i.e. in Official Gazette was held to be mandatory.

c) Publication of Delegated Legislation:

Adequate publicity of delegated legislation is absolutely necessary to ensure that law may be
ascertained with reasonable certainty by the affected persons. Further the rules and
regulations should not come as a surprise and should not consequently bring hardships which
would naturally result from such practice.
If the law is not known a person cannot regulate his affairs to avoid a conflict with them and
to avoid losses. The importance of this fact is realised in all countries and legislative enact-
ments provide for adequate publicity.

In England the Statutory Insurances Act, 1946 provides for the publicity of Statutory
Instruments. All the statutory instruments are published by the Stationary Officer after being
laid before the Parliament and contain the date on which they come into force.

S. I (i) provide:

Where by this Act or any Act passed after the commencement of this Act, power to make,
confirm or approve orders, rules, regulations of other subordinate legislation is conferred on
Her Majesty in Council or any Minister or the Crown then, if the power is expressed-

(i) In the case of a power conferred on Her Majesty, to be exercisable by Order-in-Council;

(ii) In the case of a power conferred on a Minister of the Crown, to be exercisable by

statutory instruments; any document by which that power is exercised shall be known as a
“statutory instrument” and the provisions of this Act shall apply thereto accordingly.

Accordingly, all rules, regulations and orders and other instruments made by the Sovereign, a
Minister and a Government department of a legislative character fall within the category of
“statutory instruments”.

But there is no obligation. It has been observed by Courts in some cases, to publish sub-
delegated legislation as such instruments cannot be considered as a ‘statutory instrument’.-
Black- phool Corporation v. Locker [1948]; Falmouth Beat Construction Co. Ltd. v. Howell
Judicial observation, however, must be considered with caution as in the aforesaid cases the
question was not directly involved.

In case of contravention of a Statutory Instrument, it is a defence that it had not been issued
by the Stationary Officer at the date of the alleged contravention.

Unless it is shown by the prosecution that reasonable steps have been taken or persons likely
to be affected by it or of the persons charged, the defence may be upheld.- Section 3 (2) of
the Statutory Instruments Act, 1945. Queen v. Sheer Metal Craft Ltd. [1954]

It has been judicially declared that a statutory instrument unlike an Act of the Parliament did
not take effects until it becomes known. These decisions have, however, given rise to a
difficulty, because administration have sometimes relied upon immediate enforcement of
certain type of rules, e.g., Price Schedules, Taxing measures and the like.
d. Sub-Delegation

The expression 'subordinate legislation' means the act of making statutory instruments by a
body subordinate to the Legislature and in exercise of the power, within specific limits,
conferred by the Legislature. The term also connotes and covers the statutory instruments
themselves. Legislation is either supreme or subordinate. The former is that which proceeds
from the supreme or sovereign power in the State, and which is therefore incapable of being
repealed, annulled or controlled by any other legislative authority.

Subordinate legislation is that which proceeds from any authority other than the sovereign
power, and is, therefore, dependent for its continued existence and validity on some superior
or supreme authority. The idea is to supplement Acts of Supreme Legislative Body by
prescribing detailed rules required for their operation. When a legislative body passes an Act,
it has exercised its legislative function.

The essentials of such function are the determination of the legislative policy and its
formulation as a rule of conduct. These essentials are the characteristics of a Legislature
itself.

After a Law is made by the Legislature, it is clear that every detail for working it out and for
carrying the enactment into operation and effect may be done by the Legislature or may be
left to another subordinate agency or to some executive officer. While this is sometimes
loosely described as a 'delegation' of legislative power, in essence, it is different from
delegation of legislative power which means a determination of the legislative policy and
formulation of the same as a rule of conduct In a contemporary welfare State, governmental
activity has encompassed almost every ground of human venture, thus, requiring enactment
of miscellaneous laws to control this ever widening activity.

The Legislature does not have enough time to deliberate upon, discuss and approve all the
regulatory measures. Moreover, law-making has now become a complicated and technical
matter, and law has to flawless in technical details. In the nature of things, what the
Legislature does, and can do, is to lay down the policy and purpose of any legislation in hand,
leaving it to the Executive to frame, in conformity with those principles, formal and
procedural details of that measure in the form of 'orders'.

Nature and Scope of sub-delegation

A rule-making authority can sub-delegate its legislative power only when the parent statute
authorities sub-delegation. Sub delegation of power of delegated legislation is justified only
where the parent statute expressly or impliedly authorizes the delegate himself to further sub-
delegate that power to anyone else. The maxim, Delegatus non-potest delegare is a well
known maxim which means that in the absence of any power a delegate cannot sub-delegate
its power to another person’s. Thus when an Act prescribes a particular body to exercise a
power, it must be exercised by that body and none else unless the Act by express words or
necessary implication permits such delegation.
When a sub-delegation is made, it does not divest the authority making sub-delegation of his
statutory authority. A sub-delegation is not permissible unless the said power is conferred
expressly or by necessary implication and in the absence of such an express authorisation,
legislative power cannot be sub-delegated.

A leading case in this aspect is Ganapati v. State of Ajmer. Here the parent act empowered
the chief commissioner to make rules for the establishment of a proper system of conservancy
and sanitation. The chief commissioner made a rule which empowered the district magistrate
to devise his own system. The Supreme Court held that the rule made by the district
magistrate was invalid since it was a sub-delegation without an express authority. But if the
parent article authorizes to sub delegate, then it can be validated.

If the parent Act permits sub delegation to officers or authorities not bellow a particular rank,
then the power can be delegated only to those officers or authorities. Here it may be
mentioned that the authority cannot go beyond the power delegated.

Principle Underlying Sub-Delegation

The basic principle in this respect is that the sub-delegate should not be given uncanalised
and unguided legislative power. Like delegation, sub-delegation is also subject to the doctrine
of excessive delegation. Where a statute itself authorizes an administrative authority to sub-
delegate its powers, no difficulty arises as to its validity since such sub delegation is within
the terms of the statute itself. Sub-Delegation of legislative powers

When a statute confers some legislative powers on an executive authority and the further
delegates those powers to another subordinate authority of agency, it is called 'sub
delegation.' Thus, a chain of delegation gets created in which the origin of the power flows
through the Parent Act. Sub-delegation is the further delegation of power by a delegate to
another person or agency. The basic principle in this process is summarised by the maxim
'Delegatus Non Potest Delegare, Such sub-delegation can’t be made without the duly
authorisation by the parent statute under which the delegation has been taken place.

Even though no express power to sub-delegate was granted by the Andhra Pradesh Markets
Act, 1966, the High Court upheld sub-delegation by implication from S. 57(3) thereof.
However, as sub-delegation dilutes both accountability and oversight of the original
administrative authority, safeguards are necessary for their functioning. The sub-delegate
should not act beyond the scope of the power delegated over it. At the same time it’s
important that, the sub-delegation should not be vague and must be free from any
irregularities. One of the vital aspects about the sub-delegated legislation is that it must get
mandatorily published to be operative.
The classification of the sub-ordinate legislations frequently found under the Indian
legal system

Full or Partial Delegation is full when complete powers are conferred on the agents; Power
to alter or amend or repeal any law by the “other competent authority” under Article 371- F
can be included under subordinate legislation . It is partial when he is required to get advice
and guidance on crucial point from the delegating authority in his country.

Under Sec. 5 of the Essential Commodities Act, 1955 the Central Government can delegate
the power to make orders or issue notifications under Sec. 3, subject to such conditions, if
any. Here, the powers have been delegated on subordinate authority by partially.

Conditional and Unconditional Delegation is conditional when the action of a subordinate is

subject to confirmation and revision by the superior. However, the unconditional delegation
would amount to the similar to that of full delegation of power.

Under Section 3 of the Essential Commodities Act, 1955, the Sugar Control Order, 1955 was
made by the Central Government (first-stage delegation). Under the Order, certain functions
and powers are conferred on the Textile Commissioner (second-stage delegation). Clause 10
empowered the Textile Commissioner to authorize any officer to exercise on his behalf all or
any of his functions and powers under the Order. Here, the subordinate authority has been
conferred with the delegated power but subject to certain conditions and the prior approval of
the commissioner

Skeleton Legislation

The skeleton legislation term is used to denote a statute which delegates legislative power
without laying down any principle or policy for the guidance of the delegate. While such
legislation should be invalid as it violates the principles of delegation, in modern practice
there are a number of statutes which lay down only the barest possible policy guidance and
leave enormous discretion to the delegate not only on matters of detail, but also on matters of
policy choice. Courts sometimes uphold skeletal legislation, which can only be justified on
the ground of expediency.

Mines and Minerals (Regulation and Development) Act, 1948 is a best illustration in this
regard. This Act confers myriad powers on the Central as well as State governments to
delegated such powers further and control the mining activities. In consonance to this, the
Apex Court dealt the issue of skeleton legislation in the light of expediency of the statutory
provisions and other constraints, in Bhatnagars & Co. v. Union of India wherein the Section
3(1)(a), Imports & Exports Control Act, 1947 authorised the Central Government to prohibit
or restrict import and export of goods of any specified description, despite the Act not
explicitly stating any policy; upheld the delegation of power by referring to the predecessor
Act, which contained a policy statement.
Power to fill in detail

This is the most common type of delegation wherein the legislature makes the law in skeletal
form {also called skeleton legislation) and it is the executive which provides blood and flesh
to this skeleton. In this type of delegation the legislature formulates the policy and authorises
the executive to supply the details.

Doctrine of Excessive Delegation

The doctrine of excessive delegation is applied by the courts to adjudge the validity of the
provision delegating the power. Therefore, too broad power ought not to be vested in the
Executive in matters of taxation; the parent Act ought to contain policy in the light of which
the Executive is to exercise the power delegated to it. The courts uphold delegation of power
to decide "matters of details" in a truth, is really a euphemism to cover delegation of
significant powers to the Executive in the tax area.

“The delegated authority must only implement stated policy, but if there is abdication of
legislative power by transferring policy formulation role to the delegate, then there is
excessive delegation, which will be invalidated by the court.” There are few instances in
which the delegation may be questioned on the ground of being excessive, as In Orient
Weaving Mills v. Union of India, when it comes to delegated the power to the Government to
exempt a commodity from the purview of tax; a provision conferring power of the Central
Government to exempt any excisable goods from the whole or part of the duty leviable on
such goods was held valid against the plea of excessive delegation.

In Banarasi Das v. State of Madhya Pradesh, when it comes to confer the power to the
Government to bring additional transactions, commodities or persons within the purview of a
tax; a provision authorizing the Government to bring any goods within the purview of sales
tax law was held valid.

In Bimal Chandra Barterjee v. State of M.P the Supreme Court while considering the
provisions of M.P. Excise Act, held that section 25, 26, and 62 of the M.P. Excise Act do not
empower the Government to levy tax on excisable articles. Therefore it was held that, no tax
can be imposed by any byelaw, rule or regulation unless the Statute under which subordinate
legislation is made specially authorizes the imposition.

On the contrary, in Sitaram Bishamber Dayal v. State of Uttar Pradesh, the power to impose
sales tax at a rate not exceeding 5% was not regarded irregular by the Supreme Court as the
rate prescribed was a reasonable upper limit.
The grounds of excessive delegation

(a) Amplification of policy

It is trite to say that to some extent, delegated legislation involves abandonment of its
function by the legislature and enhancement of powers of administration. Many a time, the
legislature passes Acts in "skeleton" form containing only the barest of general principles and
leaves to the executive the task of not only filling in "details" but even that of amplifying
policies.

The legislature often uses broad-worded provisions, giving wide powers to the delegate to
make such rules as appear to it to be "necessary" or "expedient" for carrying out the purposes
of the Act without laying down any standards to guide the discretion of the delegate and the
delegate is in substance given blank cheque to do whatever it likes in the delegated area of
authority.

In reality, under the skeleton type of legislation, the flesh and blood-not to mention the soul-
of the scheme of legislative regulation are left entirely to administrative discretion. The vires-
the limits-of the authority delegated have become so broad as to cover almost all
administrative rulemaking within the particular area of legislation.

A good example of amplification of policy is Section 3 of the Essential Supplies

(Temporary Powers) Act, 1946. Section 3 of the Act reads as follows:

The Central Government, so far as it appears to it to be necessary or expedient for

maintaining or increasing supplies of any essential commodity, or for securing the equitable
distribution and availability at fair prices, may be notified order provide for regulating or
prohibiting the production, supply and distribution thereof and trade and commerce therein.

The validity of Section 3 was challenged on the ground of excessive delegation. Under this
provision the executive was authorised to promulgate delegated legislation not only to fill in
details in the statute but even to decide question of policy.

However, in Hari Shanker Bagla v. State of Madhya Pradesh, the Supreme Court upheld
the delegation on the ground that the legislature has laid down the essential principles or
policy of the law, namely, -"maintenance or increase of supply of essential commodities and
securing equitable distribution and availability at fair prices."

Delivering the judgment, Mahajan, C.J., observed:

"The preamble and the body of sections sufficiently formulate the legislative policy and the
ambit and the character of the Act is such that the details of that policy can only be worked
out by delegating them to a certain authority within the framework of that policy."

In Bagla case the validity of Section 6 of the Essential Supplies (Temporary Powers) Act
was also challenged on the ground of excessive delegation of power to the Executive. Section
6 declares that an order made under section 3 shall have effect notwithstanding anything
contained in, any Act or instrument other than this Act.
It was contended before the Court that the power would have the effect to repeal by
implication any existing law and, therefore such a wide power could not be delegated on the
authority of the Reference case. Rejecting the contention the Court held that Section 6 does
not either expressly or impliedly repeal any of the provisions of the pre-existing law. The
purpose is simply to bypass them where they are inconsistent with the provision of the
Essential Supplies (Temporary Powers) Act and orders made under it.

The Court pointed out that even if it be conceded, for the sake of argument, that an existing
law stood repealed by the extents of its repugnancy with the order made under Section 3, by
implication, then the repeal "is not by an act of the delegate" but it is by the "legislative act of
the Parliament itself", because it is Parliament which has declared in Section 6 that an order
made under section 3 "shall have effect notwithstanding any inconsistency in this order with
any enactment other than this Act." In this way, judicial sanction was given to a very broad
delegation of power.

(b) Modification

Sometimes, a provision is made in the statute conferring power on the executive to modify
the existing statute itself. This is really a drastic power as it amounts to amendment of the Act
which is legislative Act. In this way it makes the executive supreme even over the legislature.
But sometimes such power is necessary for flexibility of approach to meet the changing
circumstances. In Indian legislative practice the power to modify statutes has mostly been
delegated as sequel to the power of extension and application of laws.

Thus, under the powers conferred by the Delhi Laws Act, 1912 the Central Government
extended the application of the Bombay Agricultural Debtors' Relief Act, 1947 to Delhi. The
Bombay Act was limited in application to the agriculturists whose annual income was less
then Rs. 500 but that limitation was removed by the Government.

Power of modification has also been given to administrative authorities in cases which may
be characterised as "legislation by reference". This is a device by which the power to modify
is delegated to make the adopted statute fit into the adoptive statute. For example, section 21
of Excess Profits Act, 1940 provides that the provisions of the section of Income Tax Act,
1922 mentioned therein shall apply with such modifications as may be made by rules.

Varieties of Modification - in Hari Shanker Bagla v. State of Madhya Pradesh the

provision was considered and held valid, which laid down that the delegated legislation made
under the enactment would be operative although inconsistent with some other enactment.

In Banarsi Das v. State of Madhya Pradesh, the provision which empowered the delegate
to bring in certain sale transactions under the purview of Sales-Tax Act was upheld against
the challenge of excessive delegation.
In Delhi Laws Act case it was held that power may be conferred on the executive to extend
an enactment already in force in one area to other areas with modification as the executive
considers fit. But the power to modify the underlying policy of Act is an essential legislative
function and therefore delegation of power to modify an Act without any limitation is not
valid.

In Lachmi Narain v. Union of India the Court has observed that the power to make
"restrictions and modifications" in the enactment sought to be extended is not a separate and
independent power but is an integral constituent of the power of extension. This power
exhausts itself once the enactment is extended, then the power of modification cannot be
exercised again.

The nature and extent of modification has been clarified by the Supreme Court in N.C.J.
Mills Co. v. Asstt. Collector, Central Excises. In this case the Court said that the power to
modify does not import the power to make essential changes and that "it is confined to
alterations of a minor character and no change in principle is involved." In this way, if the
changes are not essential in character, the delegation is permissible.

In Sri Ram v. State of Bombay power was given to the government to vary the ceiling area
if it was satisfied that it was expedient to do so in public interest. The Court upheld such a
broad statement of policy as 'public interest' sufficient to upheld the vires of delegation.

(c) Removal of difficulties-(Henry VIII clause)

Sometimes, power is conferred on the government to modify the existing statute for the
purpose of removing difficulties so that it may be brought into full operation. When the
legislature passes an Act, it cannot foresee all the difficulties which may arise in
implementing it. Legislature, therefore, introduces in the statute a "removal of difficulty"
clause envisaging that government may remove any difficulty that may arise in putting the
law into operation.

Generally two types of "removal of difficulties” clauses are found in the Indian statutes. One,
a narrow one which empowers the executive to exercise the power to remove difficulties
consistent with the provisions of the enabling Act. In such a case, the Government cannot
change any provisions of the statute itself; e.g., Section 128 of the States Re-organisation Act,
1956 lays down as under:

If any difficulty arises in giving effect to the provisions of this Act, the President may by
order do anything not inconsistent with such provisions which appear to him to be necessary
or expedient for the purpose of removing difficulty.
If the statute provides so, it is not objectionable. According to Committee on Minister's
Powers the sole purpose of Parliament in enacting such a provision is "to enable minor
adjustments of its own handiworks to be made for the purpose of fitting its principles into the
fabric of existing legislation, general or local" Sir Cecil Carr's view is that the device is
draftsman's insurance policy in case he has overlooked something. In exercise of such powers
the government cannot modify the Parent Act nor can make any modification which is not
consistent with the Parent Act.

The other type of "removal of difficulties" clause is very broad and empowers the executive
in the guise of removal of difficulties to modify even Parent Act or any other Act. A classic
illustration of such clause is found in the Constitution, itself which under Article 392 (1)
authorised the President to direct by order that the Constitution would, during such period, as
might be specified have effect subject to such adaptations, whether by way of modification,
addition or omission, as he might deem to be necessary or expedient.

This is nicknamed as Henry VIII Clause incorporated in the Constitution of India. Similarly,
Article 372 of the Constitution conferred power of making adaptations and modifications in
the existing law to bring it in accord with the Indian Constitution. However, it may be noted
that such a provision is usually for a limited period.

(d) Inclusion and Exclusion

As a matter of common practice, legislature passes law to confer power on the government to
bring individuals, bodies or commodities within, or to exempt them from, the purview of a
statute. In this way, the range of operation of a statute can be expanded or reduced through
the device of delegated legislation.

(i) Range of Inclusion

Sometimes, the legislature after passing the statute makes it applicable, in the first instance to
some areas and class of persons, but empowers the government to extend the provisions
thereof to different territories, persons, bodies or commodities. The Minimum Wages Act,
1948 has been passed, as mentioned in the preamble, "to provide for fixing minimum wages
in certain employment". The Act applies to the employments listed in the schedule, but the
government is empowered to add any other employment thereto .and thus to extend the
operation of the Act to that employment. The legislature has not laid down any norms on
which the government may exercise its power to add any employment to the schedule. Even
then, in Edward Mills Co. v. State of Ajmer, the Supreme Court held that the provision was
valid as the policy was apparent on the face of the Act which was to fix Minimum Wages in
order to avoid exploitation of labour in those industries wages were very low because of
unorganised labour or other causes.
In a number of cases, the power to add to the schedule has been upheld. The Punjab General
Sales Tax Act, 1948 levied a Purchase Tax on goods except the items mentioned in the
schedule annexed. This meant that if the government added an item to the schedule it became
tax exempt. In Babu Ram v. State of Punjab the Supreme Court upheld the provision
against challenge on the basis of excessive delegation.

A statute may empower the executive to expand the range of its operation through methods
other than amending schedule. For instance, the Essential Commodities Act, 1955 covers
certain specified commodities mentioned in the Act and further gives power to the Central
Government to declare any other commodity as 'essential commodity' and thus making the
Act applicable to it as well.

In Mohamed Ali v. Union of India the Supreme Court upheld a provision of Employees'
Provident Funds Act, 1952 empowering the Central Government to bring within the purview
of the Act such establishments as it might specify.

But where the Court does not find any policy for guidance in the statute the provision is held
invalid. Thus, in Hamdard Dawakhana v. Union of India, section 3 of the Drugs and
Magic Remedies (Objectionable Advertisement) Act, 1954 was challenged. This provision
prohibited an advertisement suggesting that a medicine could be used for curing any venereal
disease or any other disease specified in the rules. The Court held that no standards or
principles had been laid down in this Act for specifying Many other disease" in the rules and
hence the power delegated to make rules was invalid.

(ii) Range of exclusion.

There are certain statutes which give power to the govemment to exempt from their operation
any persons, institutions or commodities. Such a provision is invariably upheld. For instance,
in Jalan Trading Co. v. Mill Mazdoor Union the Supreme Court held the provision valid,
which authorised the Central Government to exempt any establishment from the range of the
operation of the Act having regard to the financial position and relevant factors.

In Registrar Co-operative Societies v. K Kunjabmu the Court upheld the validity of

section 60 of the Madras Co-operative Societies Act, 1932 which was a 'near Henry VIII
clause." Section 60 provides as follows:

The State Government may by general or special order, exempt any registered society from
any of the provisions of this Act or may direct that such provisions shall apply to such society
with such modifications as may be prescribed in the order.

Such a broad clause was held valid as the Court found the policy of the Act stated in the
preamble, viz., to facilitate the formation and working of co-operative societies.
(e) Taxation

Taxing power is an inherent power of any State. In a democratic system, taxation is

exclusively the function of legislature. The fundamental canon of democracy is "no taxation
without representation." Taxation is, therefore, a strong weapon in the hand of legislatures to
control the executive. However, delegation has permeated even the tax area. When legislature
passes the statute to levy a tax, it leaves some elements of taxing power to the executive.

The doctrine of excessive delegation is applied by the Court to determine the validity of the
delegation of taxing power. The permissible limits of a valid delegation of taxing power can
be comprehended by analysing the individual cases decided by the Supreme Court.

Power may be delegated to government to exempt an item from the purview of tax. In Orient
Weaving Mills v. Union of India, a provision authorising the Central Government to exempt
any excisable goods from duty was held valid against the plea of excessive delegation.

Power may be given to the Central Government to bring additional transactions within the
purview of a tax. In Banarsi Das v. State of Madhya Pradesh, delegation of power to the
government to bring any goods within the purview of Sales-tax Law was upheld. Power to fix
the rates to tax may be delegated to the executive. In Devi Das v. State of Punjab, the
provision delegating power to the executive to determine the rate of tax between the
minimum and maximum, viz., between 1 % to 2% was held valid.

Precedents on Sub-Delegation in India

The necessity of sub-delegation is ought to be supported, inter alia, on the grounds- Power of
delegation necessarily carries with it power of further delegation; and sub-delegation is
ancillary to delegated legislation; and any objection to the said process is likely to subvert the
authority which the legislature delegates to the executive.

Sub-delegation of legislative power can be permitted either when such power is expressly
conferred by the statute or may be inferred by necessary implication. Without the strict
adherence to this principle no sub-delegation can be possible. The Lok Sabha Committee on
Subordinate Legislation took the view that, as the ultimate authority of the sub-order has to
be traced to the Act, it should have been laid.

The Committee, however, subsequently stated the necessity to "lay" sub delegated legislation
made under the coal Mines (Conservation and Safety) Rules, 1954, and statutory orders under
the Defence of India Rules, 1971. The topic can be studied under three sub-heads: Sub-
delegation of legislative power, Sub-delegation of judicial power and Sub-delegation of
administrative power. The maxim 'delegatus non potest delgare' (a delegate cannot further
delegate) applies to delegated legislation also and it is not possible for the delegate to sub-
delegate the power conferred on him unless the parent Act authorizes him to do so either
expressly or by necessary implication.
In, Central Talkies Ltd. v. Dwarka Prasad, the U.P.(Temporary) Control of Rent and Eviction
Act, 1947 provided that no suit shall be field for the eviction of a tenant without permission
either of a District Magistrate or any officer authorized by him to perform any of his
functions under the Act. An order granting permission by the Additional District Magistrate
to whom the powers were delegated was held valid. Thus, express mention of the delegated
powers in the orders plays a key role.

In landmark case of Ajaib Singh v. Gurbachan Singh, under the relevant statute, the Central
Government was empowered to make rules for detention of any person by an authority not
below the rank of District Magistrate. Where the order of detention was passed by an
Additional District Magistrate, the action was held bad. Here, the principle of delegated
legislation was held subject to the strict interpretation of the statute.

Another illustration of such strict interpretation by the Apex Court is the case of District
Collector Chittoor v. Chittor District Groundnut Traders Association, Wherein, the Essential
Commodities Act confers rule-making power on the Central Government. The Central
Government sub-delegated this power to the State governments subject to the condition that
before making any rules, the State Government would obtain the prior concurrence of the
Central Government. The Supreme Court ruled in the instant case that any rule made by a
State Government without the concurrence of the Central Government would be ultra vires.
The Hon’ble Apex Court stated that, “A delegate is not entitled to exercise powers in excess
or in contravention of the delegated powers. If any order is issued or framed in excess of the
powers delegated to the authorities, such order would be illegal and void."

In Morgan (I) v. U.S the Supreme Court of America held that the duty to decide cannot be
performed by one who has not considered evidence or argument. It is not an impersonal
obligation. It is akin to that of a judge. 'The one who decides must hear'. Lord Denning
rightly stated:"while an administrative function can often be delegated, a judicial function
rarely can be; no judicial tribunal can delegate its functions unless it is enabled to do so
expressly or by necessary implication”.

The same principle is accepted in India as the basic principle In, Bombay Municipal
Corporation v. Thondu, the words of Hidayatullah, J. have become a guiding star to deal with
the similar intricacies of the delegated legislation and the judicial powers, as follows- "It goes
without saying that judicial power can not ordinarily be delegated unless the law expressly or
by clear implication permits it"

Under the relevant Act and the rules the Minister was empowered to hear the parties and to
pass the final order, but he delegated his function of hearing to his Secretary, who heard the
parties and put a note before the Minister for final decision and the order was passed by the
Minister. Quashing the orders, passed by the Minister, Subba Rao, J. held that it was not a
judicial hearing. "If one person hears and another decides, personal hearing becomes an
empty formality".
 Judicial Functions of Administration

a. Need for Devolution of Adjudicatory Authority on Administration

Meaning of Administrative Adjudication:

Modern public administration has taken a leaf not only from the legislature’s book but also
from that of the judiciary. Administrative Adjudication is the latest addition to the admin-
istrative techniques.

Administrative Adjudication means the determination of questions of a judicial or quasi-

judicial nature by an administrative department or agency.

Like a regular court, administrative bodies hear the parties, sift evidence, and pronounce a
decision in cases where legal rights or duties are involved and settling of a dispute involving
a private party on the basis of a law and fact by an administrative agency.”

Prof Dimock defines Administrative Adjudication as the process by which administrative

agencies settle issues arising in the course of their work when legal rights are in question.

Blachly and Oatman describe administrative tribunals or Administrative Courts as,

“authorities outside the ordinary court system which interpret and apply the laws when acts of
public administration are attacked in formal suits or by other established methods.”

The agencies for administrative adjudication may comprise:

(i) The minister;

(ii) The head of the department (permanent);

(iii) A ministerial tribunal;

(iv) A special committee or commission like Independent Regulatory Commissions;

(v) Specialized courts of law;

(vi) Single member tribunal;

(vii) Composite tribunal. Dr. Robson has thus remarked, “One of the most striking
developments in the British Constitution during the past half century has been the acquisition
of judicial power by the great departments of the state and by various other bodies and
persons outside the courts of law.”
The main point of difference between administrative adjudication and administration of
justice by the courts is that administrative justice is administered by administrative agencies
instead of regular courts. The administrative courts follow the principles of natural justice and
common good whereas the courts of law follow the settled principles of law and evidence.

The administrative courts are manned by officers belonging to the executive branch whereas
the judges are the members of the judiciary independent of executive control.

Kinds of Administrative Adjudication:

(i) Advisory administrative adjudication which means that the power of final decision is
vested in the head of the department or other authority.

(ii) Administrative Adjudication may constitute a part of the regular functions of an

administrative officer.

(iii) Administrative Adjudication may be combined with a legislative administrative process.

(iv) Regular suits may be filed against administrative decision.

(v) Administrative Adjudication sometimes applies to licensing activities.

(vi) Administrative Adjudication may be adopted for the settlement of claims.

(vii) Administrative Adjudication may sometimes serve as a condition precedent to the

performance of an administrative act.

Causes of the Growth of Administrative Adjudication:

1. A By-Product of the Welfare State:

The Administrative Tribunals rendering Administrative justice constitute a by-product of the

welfare state. In the 18th and 19th century when ‘laissez’ faire theory held sway, law courts
emerged out as the custodian of the rights and liberties of the individual citizens.

At times they protected the rights of the citizens at the cost of State authority. With the
emergence of welfare state, social interest began to be given precedence over the individual
rights. The existing judiciary failed to uphold the new system.

In the words of Robson, “with the extension during the nineteenth and twentieth century’s of
the functions of the government to one new field after another, with the progressive limitation
of the rights of the individuals in the interests of the health, safety and general welfare of the
community as a whole, with the development of collective control over the conditions of
employment and manner of living and the elementary necessities of the people, there has
arisen a need for a technique of adjudication better fitted to respond to the social
requirements of the time than the elaborate and costly system of decision provided by
litigation in the courts of law.”
In brief the new system of administrative adjudication suited new social ends espoused by a
welfare state. It proved a potential instrument for enforcing social policy and legislation.

2. Suitable to Industrialized and Urbanized Society:

Administrative Adjudication suits modern industrialized and urbanized society as well. The
latter necessitates positive and prompt action which is possible if the problems arising out of
the new order are not left to the mercy of ordinary courts.

In the words of Robson, “Parliament did not overlook the courts of law but they found the
possibility of setting up new organs of adjudication which would do the work more rapidly,
more cheaply and more efficiently than the ordinary courts, which would possess greater
technical knowledge and fewer prejudices against government, which would give greater
weight to the social interests involved and show less solicitude for private property rights
which would decide with a conscious effort at furthering the social policy embodied in the
legislation.

This prospect offered solid advantages which induced the legislature to extend in one sphere
after another the administrative jurisdiction of governmental departments so as to include
judicial functions affecting the social services.”

3. Ordinary Law Courts not Competent:

(i) Law courts, on account of their elaborate procedures, legalistic forms and attitudes can
hardly render justice to the parties concerned in technical cases. Ordinary judges brought up
in the traditions of law and jurisprudence are not capable enough to understand technical
problems which crop up in the wake of modern complex economic and social processes.

Only administrators having expert knowledge can tackle such problems judiciously.

In the words of White, “Another important consideration was the desire to secure
adjudication by a body of experts in the subject-matter of litigation rather than by a body of
experts in the law.” Lord Summer also held a similar opinion. According to him, the common
law judges are “ill-equipped to weigh the merits of one solution of a practical question
against another.”

(ii) The expedient adopted by the courts is to examine the experts of the subject. The expert
witnesses are only too often hired assassins of the truth; and even if they were just men made
perfect the assimilation of technical facts at short notice, through the testimony of another
individual, is a different thing from a first-hand knowledge of the groundwork based on
personal experience or training.

In the recent past in a decision given by Madras High Court, it frankly admitted that it knew
nothing of the subject. That clearly reflects the handicaps of regular judiciary.
(iii) The court procedures when tested by times are found wanting. Litigants have to face
exasperating delay because of crowded dockets of these courts and an excessive right of
appeal to the higher courts.

(iv) The justice in these ordinary courts has neither been speedy nor cheap. It has been
dilatory or cumbersome. Hence an improvement was contemplated in administrative courts.

(v) Ordinary courts were under too much strain. Hence they were to be relieved of the strain.

4. Safety to be Ensured:

A good number of situations are such as require quick and firm action otherwise health and
safety of the people may remain in jeopardy. For instance, ensuring of safety measures in
coal mines, preventing of illegal transactions in foreign exchange, and unfair business
practices necessitate prompt action.

Such cases, if to be dealt with in the ordinary courts of law, would cause immense loss to the
state exchequer and undermine national prestige. However, the administrative courts presided
over by the experts would ensure prompt and fair action.

5. Standards of Conduct to be Devised:

Besides the points suggested above, the main business of the ordinary courts is to settle
disputes and not to set standards of human behaviour. It is for the legislature to set such
standards. The legislatures are not in a position to prescribe in exact details the pattern of
conduct. This power is delegated by the legislature to the administration.

The disputes arising out of the enforcement of these standards can be properly tackled by the
Administrative courts alone. For instance, the factory rules provide certain safety measures.
A workman working in the factory gets injured. Has he been injured due to bad workmanship
or non-compliance of the safety measures by the management can be decided only by the
administrative expert rather than an ordinary judge.

The sporadic rise of administrative adjudication was, however, widely denounced by the
freedom-loving people of the democratic countries. In England, parliament was compelled to
appoint a Select Committee on Ministers’ Power in 1931 to go into the question.

The Committee was, however, of the view that the system of Administrative Adjudication
was not inconsistent with the Rule of Law. Still they suggested certain safeguards to meet the
dangers of the practices.
Advantages of Administrative Adjudication:

(a) Cheaper:

Administrative justice is cheaper comparatively. In suits, lawyers may or may not appear. No
court fees are to be paid, no solicitors are to be instructed, no counsel is to be briefed, no
pleadings are to be printed, and no affidavits are to be sworn.

Robson opines that it is also cheaper from the point of view of the state, if the relative salaries
of the official members of the administrative tribunals and the judges are taken into
consideration.

(b) Speedy Justice:

Justice by the Administrative Tribunals is speedy. Oral hearings are dispensed with. Intricate
trial procedures are abandoned. Vexatious rules of evidence are conspicuously absent.

(c) Adequate Justice:

In the fast changing world of to-day, administrative tribunals provide the most effective
means of rendering fair justice to the individuals. Lawyers steeped in the old traditions and
philosophy of law and environed by procedural dialectism generally discernible in the
ordinary courts of laws, can hardly appraise the needs of the modern welfare society. Hence
administrative courts alone can render adequate justice.

(d) Burden of Courts Lessened:

The system provides the much needed relief to the ordinary courts of laws which are
overburdened with varied types of ordinary suits. Many of the disputes coming before the
ordinary tribunals are of ordinary nature and do not warrant the attention of highly paid
judges or the necessity of elaborate procedures and rules of evidence. Such cases can easily
be referred to these tribunals.

(e) Useful in Developing Democracies:

In developing democracies which experiment with new social and economic programme,
ordinary courts would be completely misfit. All the disputes arising out of such programmes
will get struck, thus giving a setback to the programme itself unless we switch over to the
Administrative Courts.
(f) Fixing of Standards:

The disputes which come for adjudication before the Administrative Tribunals arc not
concerned with the proprietary or other claims of the disputants but the fixation of public
standards of performance. Such standards of performance can be determined only by these
administrative and not ordinary courts.

For example, a dispute concerning an injured employee’s claim for compensation from the
employer is more a problem of enforcing standards of safety in the factory than a mere
dispute of rights between the employer and the employees. Obviously ordinary courts are not
capable of undertaking such work.

(g) Flexibility:

The legalistic approach to problems is static, un-progressive and individualistic. An ordinary

court intervenes only when a conflict arises. It moves in the direction of controversy alone. It
is not concerned with the problems arising from the decisions the complications following
such decisions and the other inter-relations involved.

The fast changing society necessitates a progressive attitude and an adaptation of policies to
meet changing conditions.

Administrators formulate policy, develop administrative techniques, work out new methods
of adjusting controversies, check and modify their standards in the ordinary functions and
difficulties confronting everyday life and adjust their decisions and attitudes. Thus conditions
fostering controversies are removed through such a type of flexibility.

Moreover, such tribunals are not bound by precedents. They are free to go against the
existing precedents. This makes administrative law flexible and enables administrative
tribunals to further a policy of social amelioration unhampered by legal rigidities.

Robson has well summed up the advantages of Administrative Adjudication in these words,
“cheapness, and speed with which they usually work; the technical knowledge and
experience which they make available for the discharge of judicial functions in special fields;
the assistance which they lend to the efficient conduct of public administration; and the
ability they possess to lay down new standards and to promote a policy of social
improvement.”

Frederick and Miriam are also of the same view, “Administrative courts not only relieve the
ordinary courts of a great bulk of work, but also serve purposes foreign to the latter…The
informal and inexpensive procedure before most administrative courts and the possibility of
specialization either in separate courts or in chambers are generally considered very
desirable… The weight of expert opinion considers the continental system more satisfactory
than the separate administrative courts practically always subject in certain respects to the
judicial courts which are found in England and the United States.
Dis-Advantages of Administrative Adjudication:

Though these advantages of Administrative Courts are quite impressive, yet they have been
target of criticism at the hands of certain critics like Dicey, Lord Hewart, Allen and K M
Munshi. Lord Hewart calls administrative adjudication as ‘organised lawlessness’.

Dicey considers it derogatory to the rule of law. An Editorial Note in Times of India
describes it a ‘Martial Law’. K.M. Munshi while realizing the indispensableness of
Administrative Courts opines, “… it would in my opinion undermine the democratic structure
if administrative methods of adjudication are considered convenient alternatives to the court
of law.”

Following are the main defects of the administrative adjudication:

(a) Violation of Rule of Law:

It violates the rule of law-the cornerstone of democracy. Rule of Law stands for equality
before law, supremacy of law and due procedure of law over governmental arbitrariness. The
administrative tribunals, with their separate law and procedure often made by themselves,
seriously circumvent the celebrated principles of Rule of Law.

(b) Principle of Natural Justice Undermined:

Administrative Adjudication violates the principles of natural justice, viz., no man should be
a judge in his own case; no party ought to be condemned unheard; party should know the
reason for the decision. The Administrative courts do not often give the reasons for decision.

The quality of investigation is also poor. Free from the trammels of judicial procedure,
administrative courts depend on unsworn written statements, unsupported by verbal
testimony given on oath and subjected to cross-examination. Neither the documents are sent
for nor witnesses are compelled to attend. Thus justice remains at stake.

(c) Limited Right to Appeal:

The right to appeal from the decisions of these courts is either very limited or is non-existent.
The opportunity for judicial review is restricted. This is apt to lead to miscarriage of justice.

(d) Lack of Publicity:

The rules of procedure of administrative courts do not provide for the publicity of
proceedings. Provision of oral hearing may not be there or if it is there it may not be open to
the public and the press. Reports of the cases so decided may not be publicized.
Even the statement of reasons on which they are based, may not be given. In the absence of
proper publicity, it is not easy to predict the trend of future decisions. In the words of Robson,
“without publicity, it is impossible to predict the trend of future decisions and an atmosphere
of autocratic bureaucracy is introduced by the maintenance of secrecy which in the ordinary
course of events is quite unnecessary…”

(e) Tribunals do not Act Judicially:

Tribunals are not maimed by judicial luminaries. As such, they do not have the impartial
outlook. They become the limbs of the executive, and dance to its tune and cease to act
judicially.

(f) Prediction of Future Decisions not Possible:

The Administrative courts hold summary trials and do not take into consideration precedents.
Hence, it is rather impossible to predict the course of future decisions. It is contended by the
critics that administrative law today is a medley of confusion practically in all those countries
where rule of law prevails. It is neither written, nor definite, nor known.

(g) Uniform Procedures Non-Existent:

The Administrative courts do not observe uniform procedures. It leads to inconsistent and
arbitrary decisions. Fixed standards of conduct are conspicuous by their absence. Hence
justice is negated.

Lord Hewart correctly remarked, “Justice should not only be done but should undoubtedly
and manifestly be seen to be done.” In the U.S.A., however, the Administrative Procedure
Act 1946 has clearly laid down minimum procedural requirements.

According to Schwartz, “The Administrative Procedure Act represents the first legislative
attempt in the common law world to state the essential principles of fair administrative
procedure. The Congress, in enacting the law of 1946, mirrored the mood of discontent with
the administrative process which existed in the United States among many of those subject to
administrative authority…”

Though these defects seem to be quite alarming yet they are not inherent defects. There is a
necessity of providing proper safeguards to eliminate these defects. In reality, there is a need
for striking a proper balance between cheapness and promptness of justice and the liberty of
individuals.
Safeguards in Administrative Adjudication:

A. Organisational Safeguards:

(a) The Adjudicator of disputes should be a person different from the one who is involved in
a dispute against the individual or group of individuals. He may be drawn from the same
service responsible for administration of the functions of the agency.

(b) An adjudication board or tribunal rather than a single officer should be empowered to
adjudicate. This is in consonance with a well established rule of fair justice.

(c) The appointment of the members and particularly of the chairman should not vest solely
with the minister concerned. The Franks Committee in U.K. had recommended that to
insulate the Tribunal from departmental influence, the chairman of all such Tribunals should
be appointed by the Lord Chancellor.

It further suggested that the members of such Tribunals should be appointed by Council on
Tribunals. Such a suggestion may be of use for India as well.

A Council or Tribunal in India may comprise judges both existing and retired, lawyers,
academicians and reputed persons in other walks of life. Such a council should be consulted
in matters concerning composition and procedures of administrative tribunals.

B. Procedural Safeguards:

Purely from procedural point of view the Administrative Tribunals in countries following the
Anglo-Saxon system of law present a picture of complete disharmony and utter confusion.
The Committee on Ministers’ Powers appointed in U.K. reported in 1932 that administrative
tribunals should follow the principles of natural justice.

They suggested:

(i) No man should be a judge in his own case;

(ii) No man should be condemned unheard;

(iii) Party concerned should know the reasons for the decision. Besides the above, following
procedural improvements can also be helpful;

(iv) All the evidence and documents on the basis of which a decision is to be taken should be
disclosed. No one should be taken by surprise;

(v) The concerned should be entitled to represent his case either by himself or through a legal
expert.
(vi) The accused should be entitled to cross-examine the evidence and challenge the evidence
produced against him.

(vii) The accused should not only be given an opportunity to examine the evidence produced
against him but should also have an opportunity to call evidence, oral and documentary.

(viii) He should be given the right to full judgment which should reveal the reasons for the
order and not merely the order.

(ix) He should possess the right to appeal for further and higher judgment.

C. Judicial:

The system of Judicial Review over judicial and semi-judicial action of the administrators
and tribunals can prove a very adequate safeguard. In France and Germany, supreme
Administrative Court has been provided to supervise all administrative tribunals and
authorities.

In the Rule of Law countries the jurisdiction of the Supreme and the High Courts should not
be curtailed. The right to judicial review on points of law should remain unimpaired.

In the words of M.C. Setalvad, India’s Attorney General, “Any judicial review of
administrative action in which the highest court of the country is not the predominating
authority, would not inspire public confidence.”

In a developing democracy like India in particular, the judicial review is almost a necessity.
Articles 32, 136, 226 and 227 of the Constitution provide for judicial review of the decisions
of the Administrative Tribunals. Some of the Acts are immune from judicial control.

The Opium Act, 1857, the Ganges Tolls Act, 1867, the Explosives Act, 1884 the Ancient
Monuments Preservation Act, 1904, the Indian Cotton Cess Act, 1923, the Trade Marks Act
1940 t are some of the examples of such Acts.

Though these safeguards will help in removing the lacunae of the functioning of the Ad-
ministrative Courts, yet it is advisable that indiscriminate recourse to Administrative Courts
must be avoided. The democratic superstructure is likely to be undermined if administrative
adjudication is used as an alternative to the ordinary court system.

Lord Green has rightly remarked “It is only certain classes of questions which are suitable for
submission to a special tribunal to the exclusion of the courts, In deciding whether a case falls
within these classes, it is relevant to consider the number of individuals likely to be affected
and their probable pecuniary position the necessity or otherwise of providing a speedy and
inexpensive procedure and one affording opportunities for decentralization… In all cases
there should be a right of appeal to the courts on questions of law. In no circumstances should
the power of the courts to restrain a special tribunal from exceeding its jurisdiction be taken
away.”
Talking of suitability of Administrative Adjudication to India, S.R. Dass, ex-Chief Justice of
India, correctly stated. “To us who have been brought up on the tradition of the Anglo-Saxon
system of jurisprudence and nurtured on the basic ideals of the Rule of Law, the idea of
Tribunals appears to be odious. But we have to adjust ourselves to the needs of modern
times.”

b. Problems of Administrative Decision Making

i. Number and Complexity

Administrative agencies with adjudicatory powers have grown wild with time, since
1947; these agencies have proliferated so much that an attempt even to prepare a
comprehensive list seems impossible. Every statutory scheme contains its own
machinery for decision making.
A large number of parallel bodies adjudicating on the same of kind of disputes and
giving divergent decisions is no exception. This complicates the task of administrative
law in drawing uniform principles for uniform application.

ii. Bewildering Variety of Procedures

As the number of administrative agencies are formidable; so is their procedure.
Sometimes the procedure is laid down in the Act under which the agency is
constituted. Sometimes the agency is left free to develop its own procedure.
Sometimes the agency is invested with the powers of civil courts in matters of
compelling attendance and production of documents. But in many cases; agency is
required to follow only the minimum procedure of the principles of natural justice but
such principles are not rigid so do not apply uniformly in all the situations thus there
are consequent uncertain results at times in arbitrary actions.

iii. Unsystematic System of Appeal

An appeal is a definite safeguard against an accident in the administration of justice.
However no uniform system of appeal has been followed in administrative
adjudication. Sometimes administrative decisions are made appealable before an
independent tribunal like in tax cases. Also some Acts do not provide for any appeal
and make the decision of the administrative agency final. To eliminate such ad hocism
in appeals from the decisions of the administrative agencies; it is necessary that at
least one appeal on the question of fact must be allowed before a higher
administrative authority and another appeal on questions of law to a Court of Law.
 iv. Invisibility of the decisions
Unlike Courts; not all administrative agencies exercising judicial powers, publish
their decisions and their decisions go beyond the pale of public criticism. In the
absence of this necessary safeguard; the quality of the administrative justice suffers.
In some cases; even no record is [prepared and justice is administered in anti-legal
fashion.

v. Unpredictability of Decisions
This is an essential ingredient of the rule of law which insists that justice must be
done through known principles nut this is frequently seem to be absent in
administrative adjudication. Administrative agencies exercising adjudicatory powers
do not follow the doctrine of precedent hence they are not bound to follow their own
decisions. This ad hocism not only makes the development of law incoherent but also
violates the principles of the rule of law.

vi. Anonymity of Decisions

In administrative adjudication; sometimes decisions are made in a hoe and corner
fashion. No one knows from where the decision comes from. Anonymity in decision
making or institutionalisation of the decisions remains and intricate problem of
administrative law in India.

vii. Combination of Functions

In India except in the case of civil servants, in all disciplinary proceedings; the
functions of the prosecutor and the judge are either combined in one person on in the
same department.

viii. No Evidence Rule

In India; the technical rules of the Evidence Act 1872 do not apply to administrative
adjudications. This gap is filled, though inadequately, by the judge-made rule of ;no
evidence’.

The allergy to hearsay evidence is not always justified. It may be accepted under certain
circumstances [State of Haryana v. Rattan Singh, AIR 1977 SC 1512].

In Nand Kishore Prasad v. State of Bihar; it was held by Supreme Court that this was
not a case of ‘no evidence’ but of evidence which was inadequate to carry a conviction
in a Criminal Court.
 ix. Official Perspective
In administrative justice; official perspective is inherent. In any disciplinary
proceeding; the presumption is of guilt rather than innocence. The actions are taken
on the basis of expediency and various other legal considerations. This projection of
official perspective does more damage when the administrative agency is not required
to follow the standard rule of evidence and procedure.

x. Official / Departmental Bias

It is one of the most baffling problems of administrative law. It is something which is
inherent in the administrative process itself.
In Gullapalli Nageswara Rao v. State of A.P. it was held that f the Minister
concerned hears the objections then the decision would be valid as he is the formal
head of the department.

xi. Plea Bargaining

It means the bargaining of ‘the plea of guilt’ with lesser charges and punishment. It
being immoral; violated the accepted canons of justice. It does the most damage
where people are poor and illiterate.

In State of Uttar Pradesh v Chandrika 2000 Cr.L.J. 384 (386), The Apex Court
held that It is settled law that on the basis of plea bargaining Court cannot dispose of
the criminal cases. The Court has to decide it on merits. If the accused confesses its
guilt, appropriate sentence is required to be implemented.

xii. Political Interference

Instrumentalisation of administrative justice are by their very nature, subject to some
manner of political interference though this cannot be said with certainty about every
tribunal. Some systems must therefore be devised to invest administrative agencies
exercising adjudicatory powers with a reasonable degree of freedom, responsibility
and security of tenure.

xiii. Off-the-Record Consultation

Section 5 (c) of the Administrative Procedure Act , 1946 provides that no
administrative authority exercising adjudicatory powers is to consult any person or
party upon any fact in issue except upon notice and opportunity for all parties to
participate. This is done to avoid the off-the-record consultations by the authority in a
manner that may prejudice the case of the other party.
xiv. Reasoned Decisions
In India apart from the requirement, if any of the statutes establishing the
administrative agency; there is no requirement for the administrative authority to give
reasons apart . from the principles of natural justice. reasons are considered as
necessary concomitants of transparency and good governance.

xv. Legal Representation and Cross Examination

In India apart from the requirement; there is no general requirement the principles of
natural justice that the administrative agency should always allow legal
representation and cross examination in every case.

xvi. Administrative v. Judicial Action

the Apex Court held in the case of Capt. M. Paul Anthony Vs. Bharat Gold
Mines Ltd. & Another 1999 (3) SCC 679 that the departmental as well as criminal,
both the proceedings, can go on simultaneously as there is no bar in their being
conducted simultaneously.

c. Nature of Administrative Tribunals: Constitution, Powers, Procedures, Rules of

Evidence

Administrative Tribunals

By giving up the traditional theory of ‘laissez faire’ and the police state, now the state has
become not only a welfare state but more so a progressive democratic state. As a result, state
started to seek the social security and social welfare for the common masses. According to
Servai, the development of administrative law in a welfare state has made, administrative
tribunals a necessity'.

Moreover, the modern government forced to employ a large work to carry out its diverse
activities. The employed persons in the government today are better educated and more aware
of their rights even if they are not in equal measures, aware of their duties and obligations.
Even those not so well educated have become politically aware enough to be increasingly
insistent on their rights

. The issues arising out of this relation are not purely legal issues. Hence, the ordinary course
of law failed to deal with all this kind of socio-economic problems. To meet such
requirement, the governments in different countries are assigned this judicial type of function
to tribunals which have been created under different statutes. India is one among them.
Hence, tribunals play a very important role and tribunals have been increasing since from
19473 especially after 1976. The 42nd Amendment Act of Indian Constitution inserted
Art.323A and Art. 323B.

Tribunals function differently from courts, from the manner of appointment to the procedure
followed, yet they seek to achieve the same objective as that of courts- to deliver justice. I

Meaning and Definition

Tribunals can be called as “Judgment seat or court of justice or board or committee appointed
to adjudicate on claims of a particular kind”. Meaning of the tribunal can be gathered from
the various Supreme Court authorities. Therefore, they are adjudicatory bodies (except
ordinary courts of law) constituted by the State and entrusted with judicial and quasi-judicial
functions as distinguished from administrative or executive functions.

In accordance with the Indian judiciary they are the bodies must maintain procedural
safeguards while arriving at their decisions and observe principles of natural justice-their
opinions were substantiated by the 14th Law Commission Report.

The tribunals were established with the object of providing a speedy, cheap and
decentralized determination of disputes arising out of the various welfare legislations and to
address specifically cases come out of new socio-economic legislations.

The word ‘tribunal’ takes its origin from the Latin term tribunus which means “a raised
platform with the seat of judge, who elected by the pleas of protect their interests ”.
According to Oxford Dictionary, the tribunal means “Judgment Seat or “a Court of justice.
According to Oxford Companion of law “any person or body of persons having to judge,
adjudicate on or determine claims or disputes….

Prof. Balram Gupta says that if an authority is to be considered as tribunal it must be

constituted by the state invested with certain functions of the judicial powers of the state.

Prof, M.P. Jain says that a body, besides being under a duty to act judiciary, should be one
which has been constituted by and invested with a part of the judicial functions of the state.
Basu says that ‘tribunal’ is used in juxtaposition with the world ‘code’ and refers to the quasi
judicial tribunals excluding courts which have the trappings of a court.

Administrative tribunals are particularly associated with the administration and their decision
are administrative. But it is not significantly true but it is true to the extent of their concern
with schemes in which the administration has an interest. Further, it is found in the majority
of the cases that decisions of the administrative tribunals are more judicial in nature as there
is a demand to apply rules impartially without leaning towards their executive polity. There is
no specific definition for “Administrative Tribunals” in the Constitution of India.
However, Articles 227 and 136 of the Constitution o India provide only the word ‘’tribunal”
and nothing more. As there is no precise or scientific form of definition for tribunal, we
should divest our concentration on the Supreme Court for its views regarding the tribunals by
referring to certain case laws.

In Durga Shankar Mehta v/s Raghuraj Singh ,the Supreme Court expressed that
‘Tribunal’ as used in Article 136 does not mean the same thing as ‘court’ but includes within
its ambit, all adjudicating bodies provided they are constituted by the state and invested with
judicial as distinguished from administrative or executive functions.

In Bharat Bank Ltd. v/s Employees, the Supreme Court observed that though tribunals are
clad in many of the trappings of court and though they exercise quasi-judicial functions, they
are not full-fledged court.

In Associated cement companies Ltd. v/s P.N. Sharma , the Supreme concluded about the
tribunal as that it is an adjudicating body which decides controversies between the parties and
exercises judicial powers as distinguished from purely administrative functions and the
possesses some of the trappings of a court, but not all.

However, there is basis test within Article 136 or 226 for tribunals that –

a. It is an adjudicating authority other than the court

b. The power of adjudicating must be derived from a statute or a statutory rule.

c. The power of adjudicating must not be derived from an agreement between the parties.

S.N. Jain defines the tribunal, as “the work is a name given to various types of administrative
bodies. The only common element running through these bodies is that they are quasi-
judicial and are required to observe principles of natural justice or fair hearing while
determining issues” 18 . So, it can finally be defined as a judicial body not being an ordinary
court that functions on constitutional mandate or under statutory empowerment performing
judicially / quasi-judicially as the arm of judicial system with a repository or expertise a
unique to its nature.

Constitutional Provisions

The Preamble of the Constitution of India, declares India to be a Sovereign, Socialist,

Secular, Democratic, Republic. In the wisdom of our framers of Constitution, these
ingredients were essential to establish a society which is egalitarian and a state which bases
itself on the tenets of welfarism. Thus rule of law and the administration of justice; lie at the
core of the phenomena of welfare state.
Also with the acceptance of Welfare ideology, there has been a phenomenal increase in the
functions of the government, which has lent enormous powers to the executive and also led to
increase in the legislative output. This has led to more litigation, restrictions on the freedom
of the individuals and constant frictions between them and the authority.

The 42nd Amendment Act 1976 inserted Part XIV-A to the Constitution of India consisting
of Articles 323A and 323B which led to the establishment of administrative tribunals.

Article 323A: Provides for the establishment of Administrative Tribunals for adjudication or
trial of disputes and complaints with respect to recruitment, conditions of service of persons
appointed to public services and other allied matters.

Article 323B: Makes provision for the creation of Tribunals for adjudication or trial of
disputes, complaints or offences connected with tax, foreign exchange, industrial and labour
disputes, land reforms, ceiling on urban property, election to Parliament and State
Legislatures, etc. Parliament has power to enact any law under Article 323A while both
Parliament and State Legislatures can make laws on matters of Article 323B, subject to their
legislative competence.

Administrative Tribunals have emerged not only in India but also in many other countries
with the objective of providing a new type of justice - public good oriented justice. These
tribunals manned by technical experts, with flexibility in operations, informality in
procedures have gained importance in the adjudication process.

Characteristics of Administrative Tribunals

1. An Administrative tribunal has statutory origin as it is creature of statute;

2. It has the get –up of a court with having some of the trapping of a court but not all;

3. It performs quasi-judicial functions as it is entrusted with judicial powers of the State

which is distinguished from pure administrative or executive functions;

4. It is a self-styled entity within the ambit of the Act regarding rigid procedures. It means it
is not bound by the strict rules which should be followed by the court i.e. rules of evidence;

5. In some aspects of procedural matters such as to summon witnesses, to administer oath, to

compel production of documents etc. it has possessed power as of the court;
6. Tough the discretion is conferred on them, it is to be exercised objectively and judicially. It
means that most of its decision is recorded the finding of facts objectively and apply the law
without regard to executive policy;

7. It is confined exclusively to resolve the disputes/cases in which government is a party but

often it moves to decide the disputes between two private parties for example Election
tribunal, Rent Control Board;

8. It enjoys independent states free from any administrative interference in the discharge of
their judicial or quasi-judicial functions;

9. The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals. Hence tribunal cannot dispose the matters as final arbitrator;

10. IT should act without any bias;

11. Once the issues settled by the High Court cannot be entertained by the administrative
tribunal;

12. It is perpetual in nature and tribunal have been established specially to deal with a
particular type of case or with a number of closely related types of cases.

Reason for establishment of Tribunals

The traditional judicial system proved inadequate to decide and settle all the disputes
requiring resolution. It was slow, costly, inexpert, complex and formalistic. It was already
overburdened, and it was not possible to expect speedy disposal of even very important
matters: e.g. disputes between employers and employees, lockouts, strikes, etc.

These problems cannot be solved merely by literally interpreting the provisions of any
statute, but require the consideration of various other factors and this cannot be accomplished
by the courts of law. Therefore, industrial tribunals and labour courts were established, which
possessed the technique and expertise to handle these complex problems.

The administrative authorities can avoid technicalities. They take a functional rather than a
theoretical and legalistic approach. The traditional judiciary is conservative, rigid and
technical. It is not possible for the courts of law to decide the cases without formality and
technicality.

On the other hand, administrative tribunals are not bound by the rules of evidence and
procedure and they can take a practical view of the matter to decide the complex problems.

Administrative authorities can take preventive measures, for example, licensing, rate fixing,
etc. Unlike regular courts of law, they have not to wait for parties to come before them with
disputes. In many cases, these preventive actions may prove to be more effective and useful
than punishing a person after he has committed a breach of any legal provision.
Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures, e.g. suspension, revocation or cancellation of licences, destruction of
contaminated articles, etc. which are not generally available through the ordinary courts of
law.

Sometimes, the disputed questions are technical in nature and the traditional judiciary cannot
be expected to appreciate and decide them. Administrative authorities are usually manned by
experts who can deal with and solve these problems, e.g. problems relating to atomic energy,
gas, electricity, etc.

Jurisdiction of tribunals in service matters

According to Article 323A, administrative tribunals can adjudicate the disputes and
complaints with respect to the recruitment and conditions of service of persons appointed to
public services and posts at

- Union Level
- State Level as well as
- Any local or other authority within the territory of India.

Composition of Tribunals:

A tribunal shall consist of a chairman and such number of vice-chairman and another member
as may be provided for. The President appoints them in case of central tribunals and the
Governor in case of the state tribunals.

Each tribunal shall consist of a chairman and such number of Vice Charmin and judicial and
administrative members as the appropriate Government may deem fit. The additional benches
must consist of one judicial member and one administrative member.

The chairman may transfer the vice-chairman or other member from one Bench to another
Bench. Every bench shall include at least one judicial member and one administrative
member. The Chairman may constitute a single member bench for certain classes of cases.

The chairman if required by the nature of case may require that the matter be heard by a
Bench of two members, the benches of the central Tribunal shall ordinarily sit at New Delhi
(which shall be known as the principle bench). Allahabad, Calcutta, Madras, Bombay and
such other places as the central government may by notification, specify.
Qualification, Term and Removal of Member:

A person shall not appointed as Chairman unless he (a) is or has been a Judge of a High
Court or (b) has for two years held the office of Vice Chairman or has for two years held the
post of a secretary to the government of India or holding other post carrying the scale of pay
of secretary.

No person can be appointed as the Vice-Chairman unless he (a) is or has been a judge of high
court (b) has for 2 years held the post of secretary to the Government or holding other post
carrying the same scale under the central or state governments; (c) has for 5 years held the
post of an additional secretary to the government of India or other post carrying the scales of
pay of additional secretary.

A person to be appointed as a judicial member must (a) be or have been a judge of the high
court, or (b) have been a member of Indian legal service and has held a post in Grade I of the
Service for at least 3 years.

A person to be appointed as an administrative member must (a) have held the post of an
additional secretary to the Government of India or their equivalent post for at least 2 years or
(b) have held the post of a joint Secretary to the government of India or other equivalent post,
(c) have adequate administrative experience.

The Chairman, Vice Chairman and other members shall be appointed by the President. The
judicial members shall appointed by the President with the consultation of the Chief Justice
of India. The Chairman, Vice-Chairman and other members of the Tribunal for a state shall
be appointed by the President after consultation with the Governor of the concerned state.

The Chairman, Vice-Chairman or other members shall hold office for a term of 5 years or
until he attains (a) in the case of the chairman or Vice-Chairman the age of 65 years and (b)
in the case of other members the age of 62 years.

The Chairman, Vice-Chairman or member may resign from his post by writing to the
President. They shall be removed from their office only by an order made by the President on
the ground of proved misbehaviour or incapacity after an enquiry made by a judge of the
Supreme Court. They shall have the right to be informed of the charges against them and
shall be given a reasonable opportunity of hearing. The central government may be rules
regulate the procedure for the investigation of the charges against them.
Procedure and Powers of Tribunals. –

Administrative Tribunals Act, 1985

22. Procedure and Powers of Tribunals. –

(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil
Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and
subject to the other provisions of this Act and of any rules made by the Central Government,
the Tribunal shall have power to regulate its own procedure including the fixing of places and
times of its inquiry and decided whether to sit in public or in private.

(2) A tribunal shall decide every application made to it as expeditiously as possible and
ordinarily every application shall be decided on a perusal of documents and written
representations and after hearing such oral arguments as may be advanced.

(3) A Tribunal shall have, for the purposes of discharging its functions under this Act, the
same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit, in respect of the following matters, namely :

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) subject to the provisions of section 123 and 124 of the Indian Evidence Act, 1872 (1 of
1872), requisitioning any public record or document or copy of such record or document
from any office;

(e) issuing commissions for the examination of witnesses or, documents;

(f) reviewing its decisions;

(g) dismissing a representation for default or deciding it ex parte;

(h) setting aside any order of dismissal of any representation for default or any order passed
by it ex parte; and

(i) any other matter which may be prescribed by the Central Government.

Objectives of the Administrative Tribunals

Administrative tribunals constituted with few objectives: a. To provide for a forum to deal
exclusively with service matters which off loaded the burden of the cases of High Court from
their jurisdiction; b. To provide inexpensive and speedy relief to government servants in
service matters; c. To provide special powers to the tribunals to make their own special
powers and procedures and not be guided by the Civil Procedure Code or the Law of
Evidence but to work according to rules of natural justice.
As far as creation of tribunals is concerned constitution is silent. No express provision in the
Constitution, as it stood originally, provides for the establishment of tribunals. However,
Articles 262(2) and 263(1) are important in this regard. Article 262(2) provides for the
creation of tribunal to adjudicate the disputes relating to water of interstate rivers or valleys.
Article 263 (1) provides for creation of council charged with the duty of inquiry into the
disputes between states. Apart from these two Articles, the creation of tribunals is implied in
the Articles 136, 226 and 227 of the Constitution as the term ‘tribunal’ is used in these
Articles. However, forty second Constitutional Amendment expressed the provision for the
creation of tribunals.

This Amendment opened the possibility for the proliferation of the tribunals system in the
country. Article 323A empowers the parliament to establish service tribunals, which will deal
with the service matters i.e., recruitment, conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or any State or any local or
other authority in India or under the control or owned by the government and Article 323B
empowers the appropriate legislature to provide the law, for adjudication or trial by tribunals
of any disputes and offences with respect to several matters.

Further the Article 323B is wide amplitude and it provides that tribunals may try certain
criminal offences also. In 1985, Parliament passed the Administrative Tribunals Act in
pursuant of Article 323 A of the Constitution. And under Article 323B parliament and state
legislatures are passing law from time to time which provided for the creation of tribunals.
The work assigned to the tribunal is very complex in nature. It requires qualified and
experienced members to the adjudication of the subject matters. Hence the chairman must
come from judiciary with an experience of adjudication to his credit.

He must be legally qualified person because he only can apply statute law or case law to
complex situations other members of the tribunal shall have the sound professional
knowledge and practical experience of the service matters. So they are to be senior executive
officers who are men of character, integrity and having best ability.

Each tribunal shall consist of chairman, Vice chairman and judicial and administrative
members in such number as the appropriate government may deem fit. The qualifications are
fixed by the President of India after consulting Chief Justice of India and for their members’
consultation with the Government of the concerned State i.e. in case of State Administrative
Tribunal or joint Administrative Tribunal will be made.

The chairman of tribunal has been given the exclusive power to constitute bench. He may
transfer the vice chairman or other member from one bench to another. He can constitute a
bench composed of more than two members and also single member bench.
Advantages of Administrative Tribunal

a) Flexibility

Administrative adjudication has brought about flexibility and adaptability in the judicial as
well as administrative tribunals. For instance, the courts of law exhibit a good deal of
conservatism and inelasticity of outlook and approach. The justice they administer may
become out of harmony with the rapidly changing social conditions. Administrative
adjudication, not restrained by rigid rules of procedure and canons of evidence, can remain in
tune with the varying phases of social and economic life.

b) Adequate Justice

In the fast changing world of today, administrative tribunals are not only the most
appropriated means of administrative action, but also the most effective means of giving fair
justice to the individuals. Lawyers, who are more concerned about aspects of law, find it
difficult to adequately assess the needs of the modem welfare society and to locate the
individuals place in it.

c) Less Expensive

Administrative justice ensures cheap and quick justice. As against this, procedure in the law
courts is long and cumbersome and litigation is costly. It involves payment of huge court
fees, engagement of lawyers and meeting of other incidental charges. Administrative
adjudication, in most cases, requires no stamp fees. Its procedures are simple and can be
easily understood by a layman.

d) Relief to Courts

The system also gives the much-needed relief to ordinary courts of law, which are already
overburdened with ordinary suits.

Lacunas in functioning of Tribunals

Firstly, tribunals operate under the thumb of parent administrative ministries against whom
many of them are meant to pass orders, therefore remaining at their mercy with visible and
invisible strings for facilities, infrastructure and also rule-making.

Secondly, the secretary of the said Ministry sits on the panel for selecting and reappointing
the adjudicating members and also has a role to play in disciplinary committees. For instance,
the defence secretary is a part of the committee for selection and re-appointment of members
of the Armed Forces Tribunal, and the said secretary is that very officer against whom all
tribunal orders are to be passed.
Thirdly, under the garb of providing cheaper and informal adjudication, appeals have been
provided, on very limited grounds, directly to the Supreme Court from some tribunals making
access to justice a far call with some litigants accepting injustice rather than challenging
orders simply because they cannot afford prohibitive costs of litigation in the apex court.

Fourthly, persons who at times have served as part of the same ministries are appointed as
members and who carry with them their own personal experiences and over-familiarity
making justice subjective as compared to judges who bear no such baggage and are trained to
be objective.

Fifthly, a majority of non-judicial members are not legally qualified and hence are not even
eligible to appear before such tribunals while they are allowed to exercise judicial functions
while sitting on the bench.

Sixthly, some tribunals are not even vested with powers of civil contempt thereby leaving
them toothless qua enforcement.

Categories of Tribunals in India

There are four categories of tribunals in India: Administrative bodies exercising quasi-
judicial functions, whether as part and parcel of the Department or otherwise.

Administrative adjudicatory bodies, which are outside the control of the Department involved
in the dispute and hence decide disputes like a judge free from judicial bias . Example: The
Income Tax Appellate Tribunal is under the Ministry of Law and not under Ministry of
Finance.

Tribunals under Article 136 in which the authority exercises inherent judicial powers of the
State. Because the functions of the body are considered important over the control,
composition and procedure, even Departmental bodies can be classified as Tribunals.

Tribunals constituted under Article 323A and 323B having a constitutional origin and
enjoying the powers and status of a High Court.

Types of Administrative Tribunals

i. Central Administrative Tribunal (CAT)

The enactment of Administrative Tribunals Act in 1985 opened a new chapter in

administering justice to the aggrieved government servants. It owes its origin to Article 323A
of the Constitution which empowers the Central Government to set up by an Act of
Parliament, the Administrative Tribunals for adjudication of disputes and complaints with
respective recruitment and conditions of service of persons appointed to the public services
and posts in connection with the Union and the States.
The Tribunals enjoy the powers of the High Court in respect of service matters of the
employees covered by the Act. They are not bound by the technicalities of the Code of Civil
Procedure, but have to abide by the Principles of Natural Justice. They are distinguished from
the ordinary courts with regard to their jurisdiction and procedures. This makes them free
from the shackles of the ordinary courts and enables them to provide speedy and inexpensive
justice.

The Act provides for the establishment of Central Administrative Tribunal and State
Administrative Tribunals. The CAT was established in 1985. The Tribunal consists of a
Chairman, Vice-Chairman and Members. These Members are drawn from the judicial as well
as the administrative streams. The appeal against the decisions of the CAT lies with the
Supreme Court of India.

Administrative Tribunals Act, 1985

14. Jurisdiction, Powers and Authority of the Central Administrative Tribunal. –

(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal
shall exercise, on and from the appointed day, all the jurisdiction, powers and authority
exercisable immediately before that day by all courts (except the Supreme Court) in relation
to –

(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil
service of the Union or a civil post under the Union or to a Post connected with defence or in
the defence services, being, in either case, a post filed by a civilian;

(b) all service matters concerning –

(i) a member of any All-India Service; or

(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)
appointed to any civil service of the Union or any civil post under the Union; or

(iii) a civilian [not being a member of an All-India Service or a person referred to in clause
(c) appointed to any defence services or a post connected with defence, and pertaining to the
service of such member, person or civilian, in connection with the affairs of the Union or of
any State or of any local or other authority within the territory of India or under the control of
the Government of India or of any corporation or society owned or controlled by the
Government;

(c) all service matters pertaining to service in connection with the affairs of the Union
concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-
clause (iii) of clause (b), being a person whose services have been placed by a State
Government or any local or other authority or any corporation or society or other body, at the
disposal of the Central Government for such appointment.
Explanation:

(1) For the removal of doubts, it is hereby declared that references to "Union" in this sub-
section shall be construed as including references also to a Union Territory.

(2) The Central Government may, by notification apply with effect from such date as may be
specified in the notification the provisions of sub-section (3) to local or other authorities
within the territory of India or under the control of the Government of India and to
corporations or society owned or controlled by Government, not being a local or other
authority or corporation or society controlled or owned by a State Government:

Provided that if the Central Government considers it expedient so to do for the purpose of
facilitating transition to the scheme as envisaged by this Act, different dates may be so
specified under this sub-section in respect of different classes of, or different categories under
any class of local or other authorities or corporations.

(3) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal
shall also exercise, on and from the date with effect from which the provisions of this sub-
section apply to any local or other authority or corporation or society, all the jurisdiction,
powers and authority exercisable immediately before that date by all courts (except the
Supreme Court in relation to

(a) recruitment, and matters concerning recruitment, to any service or post in connection
with the affairs of such local or other authority or corporation or society; and

(b) all service matters concerning a person [other than a person referred to in clause (a) or
clause (b) of sub-section (1) appointed to any service or post in connection with the affairs of
such local or other authority or corporation or society and pertaining to the service of such
person in connection with such affairs.

The CAT is distinguished from the ordinary courts in the following respects:

(i) The Tribunal exercises jurisdiction only in relation to the service matters of public
servants covered by the Act;

(ii) The Tribunal is free from the shackles of many of the technicalities of the ordinal courts
in respect of hearing of evidence and pleading by the lawyers and the presentation of the
case.

(iii) The government can present its case through the departmental officers or legal prac-
titioners.

(iv) Further, only a nominal fee is to be paid by the petitioner for filing an application before
the Tribunal.
(v) The members of the Administrative Tribunals are drawn from the administrative stream
also, whereas the judges of ordinary courts belong to the legal stream.

(vi) The Ministry of Personnel, Public Grievances and Pensions looks after the
Administrative Tribunals providing them better conditions of service and improve their
functioning.

One of the main objectives of setting up the Administrative Tribunals was to provide cheap
and speedy justice to public employees in disputes relating to their service matters. The CAT
has been able to achieve this objective to a considerable extent, despite many constraints
faced by it.

Through an amendment in the Administrative Tribunal Act, 1985, the States have been given
the power to abolish the State Administrative Tribunals if they so desire.

ii. Customs and Excise Revenue Appellate Tribunal (CERAT)

The Parliament passed the CERAT Act in 1986. The Tribunal adjudicate disputes,
Complaints or offences with regard to customs and excise revenue. Appeals from the orders
of the CERAT lies with the Supreme Court.

iii. Foreign Exchange Regulation Appellate Board (FERAB)

The Board was set up under the Foreign Exchange Regulation Act, 1973. A person who is
aggrieved by an order of adjudication for causing breach or committing offences under the
Act can file an appeal before the FERAB.

iv. Income Tax Appellate Tribunal

This Tribunal has been constituted under the Income Tax Act, 1961. The tribunal has its
benches in various cities and appeals can be filed before it by an aggrieved person against the
order passed by the Deputy Commissioner or Commissioner or Chief Commissioner or
Director of Income Tax. An appeal against the order of the Tribunal lies to the High Court.
An appeal also lies to the Supreme Court if the High Court deems fit.
 v. Railway Rates Tribunal

This Tribunal was set up under the Indian Railways Act, 1989. It adjudicates matters
pertaining to the complaints against the railway administration. These may be related to the
discriminatory or unreasonable rates, unfair charges or preferential treatment meted out by
the railway administration. The appeal against the order of the Tribunal lies with the Supreme
Court.

vi. Industrial Tribunal

This Tribunal has been set up under the Industrial Disputes Act, 1947. It can be constituted
by both the Central as well as State governments. The Tribunal looks into the dispute
between the employers and the workers in matters relating to wages, the period and mode of
payment, compensation and other allowances, hours of work, gratuity, retrenchment and
closure of the establishment. The appeal against the decision of the Tribunal lies with the
Supreme Court.

At present and in view of the decision of the Supreme Court in 'Chandra Kumar's case, the
administrative tribunals are rendering the following diversified judicial duties/functions:

Functioning as a 'Court of first instance; by adjudicating the Original Applications (shortly

called O.A.s) filed by the Government employees and also Miscellaneous Applications,
Contempt Applications and Review Applications, arising out of them.

Adjudicating the cases remanded by the High Courts, in exercise of its power of 'Judicial
Review'.

Adjudicating cases remanded by the Supreme Court of India.

An administrative tribunal exercising judicatory powers differs from ordinary judicial

court in the following respects:

(1) Legal counsel may not be needed in matters requiring adjustment;

(2) A degree of informality which suits to the nature of issues involved;

(3) Formal rules of evidence may not be observed;

(4) Decisions may be reached by expert in the subject matter as well as in the law;

(5) Differences in the constitution and procedure; and

(6) Facts may be developed by question and answer and conclusion reached without delay.
The factors that have given rise to the delegated legislation are at the root of the development
of administrative tribunal expansion of governmental activities, concept of welfare state, and
increased interference with the lives of the citizens. There is an apparent desire to escape
from a purely legalistic approach. The procedure of the regular courts is dilatory and
cumbersome. An alternative machinery of cheap and speedy justice through tribunals is a
response to popular need. The administrative tribunals are vested with the powers to move of
their own accord in detecting, investigating and punishing the violation of laws.

The adjudicatory functions of the Indian administration encompasses departmental

proceedings against government servants; adjudicatory; powers of revenue authorities;
election tribunals; tribunal for land acquisition proceedings; tribunal for industrial labour;
adjudicatory powers of transport authorities; and adjudicatory powers of regulatory
authorities.

Administrative justice through administrative tribunal is cheaper. In cases lawyers may or

may not appear. No court fees are to be paid, no solicitors are to be instructed, no counsel is
to be briefed, and no affidavits are to be sworn. It is speedy. Oral hearings are dispensed with
Intricate trial procedures may be abandoned. Rules of evidence are conspicuously absent and
the proceedings are broadly characterised by informality and simplicity.

The administrative tribunals perform their functions with flexibility. They are not bound by
their previous decisions or precedents of other authorities. Nor are they handicapped in their
tasks by judicial precedents and rule of law.

Summary procedure is advantage of administrative adjudication. The critics like Lord Hewart
calls administrative adjudication as ‘organised lawlessness’. Dicey considers it violative to
the rule of law. i.e., equality before law, supremacy of law and due procedure of law. It
militates against the principles of natural justice. The right to appeal from the decisions of
these courts is either very limited or is non-existent.

The opportunity for judicial review is restricted. Provision of oral hearing is not there. Even
the statements of reasons are not given. These tribunals are not manned by people of judicial
training and experience. Summary trials do not take into account precedents. Such courts do
not observe uniform procedures. Sometimes appeals to the ordinary court of law are not
permitted. It is an inescapable modern democratic society can ignore it only at its own peril.

Some safeguards against administrative adjudication can help as a support structure to

judiciary. The adjudicator of dispute should be persons different from those who are involved
in a dispute against the individual or group of individuals. The appointment of the members
and the chairman should not vest solely with the minister concerned.

The Franks Committee in UK recommended that the tribunals be insulated from departmental
influence. A council or tribunals in India may comprise judges, both existing and retired,
lawyers, academicians and reputed persons in other walks of life. Such a council should be
consulted in matters concerning composition and procedures of administrative tribunals.
Code of judicial procedure for administrative tribunals should be devised and enforced in
view of the prevailing varying procedures of administrative adjudication in India.

To quote Lord Justice Denning, “If the tribunals are to command the confidence of the people
they must give reasons”. Some of the administrative tribunals permit appeal straightway to
the court of law; some, however, seek to altogether ban judicial review by making decisions
final; and still a few others keep regular courts out by allowing appeal to a higher
administrative authority. Thus, the right to judicial review on points of law must remain
unimpaired.

Tribunal is not a substitute for High Court

The tribunals empowered to adjudicate disputes and entertain complaints with respect to
service matters. All other courts except Supreme Court are barred to entertain these cases.
Therefore, tribunals do enjoy the same status or are at par with High Court. But a tribunal
will not have power to issue writ as power is not given to them. The Supreme Court in S.P.
Sampath Kumar’s case declared that the tribunal is the substitute of High Court and is
entitled to exercise the power thereof. The position emerges that the High Court and tribunals
are not rival institutions. The tribunals are a part of the jurisdiction of High Court i.e., relating
to service matters an appeal cannot lay within the High Court against the order or judgment
and as a matter of right before the Supreme Court. But Supreme Court can entertain appeal in
the exercise of its extra ordinary jurisdiction under Article 136. Hence, the tribunal’s decision
is made appealable within the tribunal itself before a large bench as an ordinary employee
cannot be accepted to afford the cost of litigation in the Supreme Court, which may
sometimes result in the denial of his right to seek justice.

But in L. Chandrakumar v/s Union of India case, the Supreme Court reversed its earlier
judgment and ruled that power of judiciary vested in the Supreme Court and High courts is
constituted part of the basic structure of the constitution and could not be taken away.

Now the tribunals are allowed to function as courts of first instance subject to the jurisdiction
of High Courts. This downgraded the role of tribunals from the substantial role to
supplemental role. There is a condition to invoke tribunals to a civil servant that he should
have availed to him under the service rules and he should have locus standi in the subject
matter. The Government of India has framed rules for filing an application before
Administrative Tribunal that it shall be presented in Form 1 by the applicant in person or by
an agent or by a duly authorized advocate to the Registrar or another officer authorized by the
Registrar to received the applications or sent by registered post with acknowledgement only
addressed to the Registrar.
After the application has been filed, the Registrar or the officer authorized by Registrar shall
endorse the date on which it is presented for deemed to have been presented and sign the
endorsement. In the scrutiny, any irregularity is found in the application the Registrar may
allow the parties to remove in presence. Otherwise he may refuse to register such application
with reasons recorded in writing an appeal against the order of Registrar will be filed within
fifteen days of such order. Tribunal empowers to regulate its own procedure including fixing
of places and times of its enquiry and deciding whether to sit in public or private place.

The tribunal can admit evidence, in lieu of any originals document, a copy attested by a
gazette of officer. It can avoid oral evidence and evidence on affidavits. No evidence will be
taken in the absence of both the parties and hearing will commence when both the parties
present . The person who is aggrieved by an order of the government or its agencies can
approach the tribunal within a period of one year from the date on which the delinquent
official was penalized and this representation has to be disposed of within the period of six
months . However, delay can be condoned by the tribunal if it is satisfied with sufficient
cause. The tribunal shall follow the principles of natural justice. It is empowered to review its
own decision and may reject the application of review if it is satisfied that there is no
sufficient ground for it such rejected application of review is not appealable.

It excludes the jurisdiction of other courts but subject to the writ jurisdiction of High Court
and Jurisdiction of Supreme Court under Article 136. The grounds for Supreme Court to
interfere with the findings are:

The tribunal has acted in excess of jurisdiction or has failed to –

- exercise apparent jurisdiction.

- It has acted illegally
- There is an error of law
- The order of it is erroneous or has approached the question in a manner liable to
result in injustice. It has acted against the principles of natural justice
- No civil servant is to be dismissed or removed without a departmental enquiry

The tribunal has the power of judicial review for the validity of such disciplinary
proceeding but power is limited as it cannot change the decision. However, the Supreme
Court under equitable jurisdiction under Article 136 enjoys the power to change such
decision or opinion of the disciplinary proceedings.

For the proper implementation of welfare schemes the tribunals were found to be
essential and inevitable. Thus, the tribunal system cannot be inconsistent with rule of law
in fact they have become the agencies for ensuring rule of law. Before excluding the
power of the High Courts’ under Articles 226 and 227 over administrative tribunals, a
direct access is in fact not provided under Article 136, because the Supreme Court will
grant special leave only in special cases. The result is that of the closure of the doors of
judiciary in certain matters.
The Administrative Tribunals system is surely effective and useful. But it is hardly a
substitute for administrative reform, which continues to be pressing need of our developing
country. Nor is the Administrative Tribunal intended to replace or supplant the regular
governmental system of the country. T

he Union Public Service Commission must continue to do its work and the departmental
promotion committees must continue to meet. The Administrative Tribunal does not and is
not intended to interfere, even in the slightest way, in the functioning of the executive. It is
only when a complaint is filed that tribunal activates itself and begins moving.

Applicability of Rules of Evidence

A Tribunal is not bound by the technical rules of procedure or of evidence laid down in the
Code of Civil Procedure, 1908 and the Evidence Act of 1872 but, is guided by the abstract
principles of natural justice and subject to the provisions of the Act and the rules framed there
under by the Central Government, The Tribunal can regulate its own procedure . Thus, it
enjoys a great deal of flexibility in adopting simpler and less formal approach and methods.

Considering the complex tangles of Court procedure, the techniques of legal profession, and
the mythically formal air of a Court room, procedural simplicity and informality of the
Tribunal is no mean advantage. The Tribunal, being free from the procedural fetters of a
Court, is capable of reaching the heart of a matter. Simplicity in procedural matters; absence
of rigorous legal categories, quagmires and pitfalls of legal finesses; and the assuring air of
informality help it to render justice not only according to law and the facts which are on the
record of the case, but also according to the facts which actually happened in the case . This
not only enhances the justice being actually done, but also ensures that the justice is appeared
to have been done.

Moreover, the flexibility, informality and simplicity of the Tribunal procedure help in the
expedition’s dispensation of justice. For, much of the valuable time which is lost in the
quagmires of legal finesses of the Court, can easily be saved by the Tribunal by adopting
comparatively much simpler and more informal rules of evidence and procedure.

Power of the Central Government to make Rules of Procedure Though there are certain
inherent advantages in the procedural informality of the Tribunal but, informality is not an
overriding necessity or virtue. As rightly observed in the Franks Committee Report,
"informality without rules of procedure may be positively Inimical to right adjudication, since
the proceedings may well assume an unordered character which would make it difficult, if
not impossible, for the Tribunal to properly sift the facts and weigh the evidence".

Hence, a combination of a formal procedure with an informal atmosphere would invariably

constitute an ideal arrangement. In other words, there ought to be such prescription of
procedure as makes the proceedings clear and orderly without impairing the desired
informality of atmosphere.
Section 22 of the Administrative Tribunals Act, 1985, accordingly, aims at securing the twin
objectives of orderly procedure and informality of atmosphere before the Tribunals
constituted under the Act. With a view to introduce a certain element of certainty and
uniformity and to ensure orderly conduct of the Tribunal proceedings, the Act^ empowers the
Central Government to prescribe rules of procedure.

But, at the same time, subject to the rules thus framed by the Central Government the
Tribunal is at liberty to regulate its own procedure. In doing so, it shall, however, be guided
by the principles of natural justice .

The rule making power of the Central Government is laid down mainly, in section 35 of the
Act. Whereas-, sub-section (1) of this section confers power on the Central Government, in
general and wide terms, to make rules for the purposes of carrying out the provisions of the
Act but, the sub-section (2) contains a specific enumeration of certain matters [under clauses
(a) to (e) ] in respect of which the rules may be so made. However, this enumeration can only
be treated as illustrative and not exhaustive.

In fact, the last clause (f) is residuary in nature and embraces "any other matter which may be
prescribed or in respect of which rules are required to be made by the Central Government".
It may be noticed that under clause (e) of this sub-section the Central Government is
expressly empowered to make "rules subject to which a Tribunal shall have power to regulate
its own procedure under sub-section (.1) of section. 22" and for "any additional matters in
respect of which a Tribunal may exercise the powers of a civil Court under clause (i) of sub-
section (3) of section 22"

. The Central Government may exercise its powers of making procedural rules for the
Tribunal subject to the provisions of chapter IV of the Act dealing with the "Procedure". The
provisions of this chapter lay down broad principles or guidelines subject to which rules may
be prescribed by the Government.

The Act, however, does not contemplate laying down an exhaustive code of procedure for the
Tribunal. The rule-making power of the Central Government, in this regard, is intended to be
exercised, in a restricted manner, to prescribe broad guidelines or general principles
governing procedure so as to ensure some uniformity and certainty in the conduct of its
proceedings by the Tribunal.

For, as already observed, in the absence of any such prescription of rules, the Tribunal's
proceedings may assume an unordered character, which would not only affect the quality of
justice, to be rendered by it but, may also shake the confidence of the litigating parties in the
very system of the administration of justice by the Tribunals.

Yet, at the same time, the Tribunal must be allowed some freedom of action in evolving its
own procedure, unhampered by any rules, so that its proceedings do not assume mythical air
of extreme formalism to be found to exist in a Court room.
Power of the Tribunal to Regulate its Own Procedure

As already observed one of the main beneficial features of the administration of justice by
Tribunals, is the simplicity or informality of their procedure. The Administrative Tribunals
set up under the Administrative Tribunals Act of 1985 are not bound to follow the technical
rules of procedure and evidence contained in the Civil Procedure Code, 1908 and the Indian
Evidence Act, 1872. Subject to the provisions of the Act and the rules framed by the Central
Government in this regard, the Tribunal can regulate its own procedure.

The Tribunal can, for example, base its decision not only on the facts which are on the record
of the case but, also on facts which actually happened in the case. The Tribunal, is, by and
large, free to rely on any information it may receive, provided it discloses the information, to
provide the party concerned an opportunity to rebute the validity of the 7 information against
him.

In Y.K.Gupta Vs. Engineer-in- Chief it was held by the Tribunal that its procedure need not
necessarily be adversary but, may even be inquisitorial. But, in any case the requirements of
the natural justice must always be met with by the Tribunal in the conduct of. its proceedings.

Requirements of the Principles of Natural Justice

By making the principles of natural justice applicable to the Tribunal proceedings the Act
merely emphasises the fact of the non-applicability of the highly complicated and technical
rules of procedure and evidence followed by the ordinary Courts.

For, even in the absence of any express provision to that effect the Tribunal, being a purely
judicial body, exercising adjudicatory functions only, would have been bound to follow the
principles of natural justice in such procedural matters in respect of which there do not exist
any express provisions either in the Act or the rules made by the Central Government.
Natural justice has been a concept with variable contents in different periods of time and
under different systems of law.

It has developed with the growth of civilization and the content thereof is often considered as
a proper measure of the level of civilization and rule of law prevailing in the o community .

Natural justice has been used synonymously with the Divine Law (Jus Divinium), Universal
Law (Jus Gentium), Eternal law (Lex Aeterna), Natural Law (Jus Naturalia) or the Law of the
Reason. The modern concept of natural justice has been developed by the English common
law.

It represents higher procedural norms, developed by the judges, which every administrative
agency must follow in taking any decision adversely affecting the rights of a private
individual. The principles of natural justice as developed through the various decisions of the
Courts can be easily proclaimed or ascertained but, as rightly observed by Lord Evershed,
M.R., their precise extent is far less easy to define.
 In Russell Vs. Duke of Norfolk , it was observed by Tucker, J. that the "requirements of
natural justice must depend upon the circumstances of the 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".

( K.I. Shephard Vs. Union of India (1987) 4 SCC 431 at p.448,

Abbot Vs. Sullivan (1952) 1 K.B. 189 at p. 1)

Similarly, the Courts in India have also taken the view that the principles of natural Justice
yield to and change with the exigencies of different situations and do not apply in the same
manner to situations which are not alike . They are neither cast in a rigid mould nor can they
be put in legal straight jacket; they are not immutable but, flexible and can be adopted,
modified or excluded by statutes and statutory rules as also by the Constitution of the
Tribunal which has to decide a particular matter and the rules by which such Tribunal is
governed .

In essence, the concept of natural justice entails the idea of "fairness of procedure" or 'fair
trial'. It is simple or elementary justice as distinct from complex or technical justice. The
attempt is to keep the hearing procedure less formal consistent, however, with the minimal
fundamental concepts of procedural due process so as to promote justice and fair play *.

Though the concept of natural justice is very flexible and elastic but, it embodies two broad
fundamental norms, namely, (i) nemo judex in cause sua, i.e., no one should be made a judge
in his own cause, or the rule against bias, and (ii) audi alteram partem i.e. hear the other party
or the rule that no one should be condemned unheard, or the rule of fair hearing.

Judicial Review of Cases handled by Tribunals

In S. P. Sampath Kumar case, the Supreme Court directed the carrying out of certain
measures with a view to ensuring the functioning of the Administrative Tribunals along
constitutionally sound principles. In an amendment the jurisdiction of the Supreme Court
under article 32 was restored.

Constitutional validity of the Act was finally upheld in S. P. Sampath Kumar case subject to
certain amendments relating to the form and content of the Administrative Tribunals. The
suggested amendments were carried out by another amending Act. Thus the Administrative
Tribunals became an effective and real substitute for the High Courts.

However, in 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar held that
clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower
Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under
articles 226/227 and 32 of the Constitution, are unconstitutional.
The Court held that the jurisdiction conferred upon the High Courts’ under articles 226/227
and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable
basic structure of our Constitution.

All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench
of the High Court within whose jurisdiction the concerned Tribunal falls. As a result, orders
of the Administrative Tribunals are being routinely appealed against in High Courts, whereas
this was not the position prior to the L. Chandra Kumar’s case.

On 18th March 2006, the Administrative Tribunals (Amendment) Bill, 2006 was introduced
in Rajya Sabha to amend the Act by incorporating therein, inter alia, provisions empowering
the Central Government to abolish Administrative Tribunals, and for appeal to High Court to
bring the Act in line with L. Chandra Kumar.

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances,

Law and Justice in its 17th Report said that the appeal to High Court is unnecessary, and if a
statutory appeal is to be provided it should lie to the Supreme Court only. The Law
Commission also took up the topic suo-moto and agreed with the opinion put forward by the
Parliamentary Standing Committee.

d. Principles of Natural Justice

The term ―Principles of Natural Justice‖ (PNJ), derived from the expression „Jus Natural” of
the Roman Law, does not have force of law as they may or may not form part of statute but
they are necessarily to be followed. The adherence to principles of natural justice as
recognized by all civilized States is of supreme importance when a quasi judicial body
embarks on determining disputes between the parties, or any administrative action involving
civil consequences is in issue. These principles are well settled.

Principles of natural justice are those rules which have been laid down by the Courts as
being the minimum protection of the rights of the individual against the arbitrary procedure
that may be adopted by a judicial, quasi-judicial and administrative authority while making
an order affecting those rights. These rules are intended to prevent such authority from doing
injustice.

The rules of natural justice do not supplant the law of the land but only supplement it. It is
now firmly established that in the absence of express provisions in any statute dispensing
with the observance of the principles of natural justice, such principles will have to be
observed in all judicial, quasi-judicial and administrative proceedings which involve civil
consequences to the parties. (A.K Kraipak vs. Union of India (AIR 1970 S.C.150) &
Maneka Gandhi (AIR 1978 S.C.597)
 Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience,
to be ranked as fundamental. The purpose of following the principles of natural justice is the
prevention of miscarriage of justice.

Natural Justice recognizes three principles: (i) Nemo debet essc judex in propria causa. (ii)
Audi alterem partem, and (iii) Speaking orders or reasoned decisions. The first two have
come to us from the Roman Law and the third one is a recent Innovation due to the rapid
development of the constitutional as well as administrative law

i. Rule against Bias- Nemo debet essc judex in propria causa

The first principle of impartiality roughly translated into English means nobody shall be a
judge in his own cause or in a cause in which he is interested. This principle is more
popularly known as the Doctrine of Bias. That is the authority sitting in judgment should be
impartial and act without bias.

To instil confidence in the system, justice should not merely be done but seen to be done.
Bias can be categorized in three categories namely pecuniary, personal and official. The
decision of the adjudicator would be affected if he is having pecuniary interest in the subject
matter of the proceedings.

In Mohapatra vs. State of Orissa (AIR 1984 S.C. 1572), it was held that when the author of
a book was a member of the committee set up for selection of books, and his book was also
under consideration by that committee, the possibility of bias could not be ruled out and the
selection by that committee cannot be upheld. Thus, in addition to the direct personal interest,
the test laid down by the court is to consider the real likelihood of bias. In other words,
probability of bias is sufficient to invalidate the right to sit in judgment and there is no need
to have the proof of actual bias.

Personal bias may arise out of friendship, relationship, professional grievance or even
enmity. Here again likelihood of bias is to be given more credence than for the actual bias.
―it is difficult to prove the state of mind of a person. Therefore, we have to see whether
there is reasonable ground for believing that he was likely to have been biased‖. For example,
in Tata Motor Challenge vs. Government of West Bengal, on the constitutional validity of
Singur Land Rehabilitation and Development Act, Justice Saumitra Pal rescued himself from
the case, citing that he knew some of the people in relation with the case personally.

The third type of bias, namely, official bias may arise in cases where an administrator who
enunciates, and then has to carry out an official policy, is entrusted with the duty of hearing
objections from the concerned persons as to the implementation of the policy. Here the
general rule is that the bias that may be said to be likely to arise because the adjudicator has a
general interest in the subject matter and administration of the policy in his official capacity,
would not operate as a disqualification.
The mere fact that the Registrar of Cooperative Societies has a power of general supervision
over all Co-operative Societies, does not amount to inherent bias in him so as to disqualify
him for the purpose of acting as an arbitrator or judge under Section 18 of the Rules made
under the Co-operative Societies /Act 1912 to decide disputes between members of a Society
(Viraj vs. State of Orissa 1967 SC 158).

Thus, no official bias arises while senior officers adjudicate the Customs or Central Excise or
Service Tax cases even though the investigations in the case might have been conducted by
their subordinates.

The Law with Respect to Bias and the Principles Governing Doctrine of Bias in India

The law with regard to bias and the principles governing it are fairly well settled. In
Manak Lal v. Dr. Chand Singhvi, A.I.R. 1957 S.C. 425—1957 S.C.R. 575, the law was
summarised by the Supreme Court as follows:—

“It is well settled that every member of a tribunal that is called upon to try issue in judicial or
quasi-judicial proceedings, must be able to act judicially, and it is of the essence of judicial
decision and judicial administration that judges should be able to act impartially, objectively
and without any bias-

In such cases, the test is not whether in fact a bias has affected the judgment. The test always
is and must be whether a litigant could reasonably apprehend that a bias attributable to a
member of the tribunal might have operated against him in the final decision of the Tribunal.
It is in this sense that it is often said that justice must only not be done but must also appear to
be done.”

The principles governing the doctrine of bias vis-a-vis judicial tribunal are:-

(a) No man shall be judge in his own cause;

(b) Justice should not only be done but manifestly and undoubtedly seem to be done.

These two maxims yield the result that if a member of a judicial body is subject to a bias
(whether financial or other) in favour of, or against, any party to a dispute, or is in such a
position that a bias must be assumed to exist, he ought not to take part in the decision or sit
on the tribunal and that any direct pecuniary interest, however small, in the subject-matter of
inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same
effect if it is sufficiently substantial to create a reasonable suspicion of bias.

These principles are equally applicable to authorities, though they are not court of justice or
judicial tribunals, who have to act judicially in deciding the rights of others i.e., authorities
who are empowered to discharge quasi-judicial functions.
-- It was laid down by the Supreme Court in the case of Ashok Kumar Yadav v. State of
Haryana, A.I.R. 1987 S.C. 454 (4 Judges) 1986 Lab. I.C. 1417 that-

1. It is one of the fundamental principles of jurisprudence that no man can be a judge in his
own case and that if there is a reasonable likelihood of bias, it is “in accordance with natural
justice and commonsense that the justice likely to be so biased should be incapacitated from
sitting”.

The question is not whether the judge is actually biased or in fact decides partially, but
whether there is a real likelihood of bias.

What is objectionable in such a case is not that the decision is actually tainted with bias but
that the circumstances are such as to create a reasonable apprehension in the mind of others
that there is a likelihood of bias affecting the decision. The basic principle underlying this
rule is that justice must not only be done but must also appear to be done.

2. It is also important to note that this rule in not confined to cases where judicial power
stricto sensu is exercised. It is appropriately extended to all cases where an independent mind
has to be applied to arrive at a fair and just decision between the rival claims of parties.

Justice is not the function of the courts alone; it is also the duty of all those who are expected
to decide fairly between contending parties.

The strict standards applied to authorities exercising judicial power are being increasingly
applied to administrative bodies, for it is vital to the maintenance of the rule of law in a wel-
fare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the
instrumentalities of the State should discharge their functions in a fair and just manner.

** Preconceived notion bias

- The deciding officer has a per-conceived notion, feeling, liking or disliking in regard
to the subject matter which forces him to give a specific judgement.

** Bias on account of obstinacy / Doctrine of necessity

Obstinacy means unreasonable and unwavering persistence and the deciding officer would
not a 'no' for the answer.

Doctrine of necessity: Bias would not disqualify an officer from taking an action if no other
person is competent to act in his place.
**G N Nayak v Goa University and Others

The case is a leading case on Rule against Bias. In this case, a senior officer expressed
appreciation of the work of a junior officer in his confidential report. He was also a member
of the Departmental Promotion Committee to consider such junior officer along with others
for promotion. The committee recommended this junior officer for promotion which was
challenged on the ground of personal bias actuated by an element of personal interest. The
Apex Court held that unless preference is unreasonable and is based on self-interest, it will
not vitiate an administrative decision. Taking the opportunity, the apex court also held that
preparing an exhaustive list about relations that could possibly lead to personal bias cannot be
made.

ii. Audi Alteram Partem

The second principle of natural justice literally means ―to hear the other side. This is
necessary for providing a fair hearing and no doubt the rule against bias would also be a part
of the procedure. A corollary has been deduced from the above two rules and particularly the
audi alteram partem rule, namely ‗qui aliquid statuerit parte inaudita alteram actquam licet
dixerit, haud acquum facerit‘ that is, ‗he who shall decide anything without the other side
having been heard, although he may have said what is right, will not have been what is right‘
or in other words, as it is now expressed, ‗justice should not only be done but should
manifestly be seen to be done‘.

The concept has gained significance and shades with time. When the historic document was
made at Runnymede in 1215, the first statutory recognition of this principle found its way
into the ―Magna Carta. The classic exposition of Sir Edward Coke of natural justice requires
to ―vocate, interrogate and adjudicate.

In the case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414], the principle
was thus stated:- ―Even God did not pass a sentence upon Adam, before he was called upon
to make his defence. “Adam” says God, “where art thou? Hast thou not eaten of the tree
whereof I commanded thee that thou shouldest not eat. It says that no one should be
condemned unheard. Notice is the first limb of this principle. It must be precise and
unambiguous. It should appraise the party determinatively the case he has to meet. Time
given for the purpose should be adequate so as to enable him to make his representation. In
the absence of a notice of the kind and such reasonable opportunity, the order passed
becomes wholly vitiated.

Thus, it is but essential that a party should be put on notice of the case before any adverse
order is passed against him. This is one of the most important principles of natural justice. It
is after all an approved rule of fair play. When it is said that hear the other side, It means that
hearing should not be reduced to mere formality and it does not remain confined to only
auditory hearing. It should be effective hearing.
The principle or effective hearing embraces a larger sphere and includes the following
essential aspects :-

(a)Issuance of Notice

Prior notice of decision making:- Giving of a valid notice to the proper or concerned person
of the facts of the matter and nature of the action proposed to be taken is a sine qua non of a
fair hearing. Notice is to be given even if the statute does not contain any provision for the
issue of a notice (Fazalbhai Vs Custodian AIR 1961 SC 284).

However, if the statute specifically waives giving of the notice then no notice need be given
as the rules of natural justice do not supplant the law. Courts have also held that submission
of suo moto revision or the claim that there can be no defence to the action proposed cannot
justify department i.e. from this requirement of natural justice (Olga Tellis vs. BMC AIR
1986 SC 180)

(b) Notice to Indicate Evidence Being Relied Upon-

The notice must clearly indicate material on the basis of which the proposed action is being
taken. The right to know such material is part of the right to defend oneself. Then only the
person will have a fair opportunity to defend, correct or contradict them (Kanda vs. Govt. of
Malaya 1962 A.C. 322).

Further, in Hi-Tron Electronics vs. Commissioner (1989 (42)), the Tribunal observed that
even in a case where the party has waived the right to receive a show cause notice, the duty of
disclosing the documents on the basis of which the order (regarding valuation) was to be
passed should have been disclosed to the party and the order passed without such disclosures
was liable to be set aside.

(c) The notice must be with reference to the charges on which the proceedings are to be held.
The person against whom proceedings are held cannot be punished for a charge different
from the one for which notice had been given.

In Petrofiles Co-operative Ltd. Vs. Collector (1992(59) ELT 144)), the Tribunal adversely
commented on the order in which duty had been demanded in terms of a particular
notification though in the show cause notice duty had been demanded in terms of another
notification. Return of Non-Relied upon Documents

(d) During investigation, large numbers of documents are resumed by the departmental
officers.

While some of the documents are relied upon by the Department for the purpose of
proceeding against the noticee, large chunk of these documents are not useful for the purpose
of investigation but remains under the possession of the Department.
This requirement has been incorporated in legal provision under Central Excise law in s Rule
24A, Central Excise Rules 2002, which explicitly states that books of accounts or other
documents, seized by the Central Excise Officer or produced by an assessee or any other
person, which have not been relied on for the issue of notice under the Act or the rules made
there under, shall be returned within thirty days of the issue of said notice or within thirty
days from the date of expiry of the period for issue of said notice.

(e) In the case of Methodex Systems vs. Union of India {Citation:- 2001 (127) ELT 44
(MP)}, Hon‘ble High Court of MP held that Once it is shown to the department or the
department feels that the documents are not required by the department and the department is
of the considered opinion that it is not relying upon the documents, then, it is duty bound to
return the records. They have no authority either under the law or under the circulars to sit
tight over the records and refuse to return the same. The department has no authority under
the law to keep the records with it Right to make Representation

(f) The right to make representation requires that the person proceeded against must have
opportunity to peruse all material relied upon.

Copies of such material should be furnished free of charge without being demanded and even
in those cases where the documents having been seized from the party, are relied upon.
Furnishing of these copies would include copies of test reports, trade opinions, international
price publications, etc. Reliance of any document or material without furnishing the above
requisites would render the ultimate decision bad for failure of natural justice.

In Kothari Filaments vs. Commissioner of Customs (Port) Kolkata (Citation:- 2009

(233) ELT 289 (SC) ), an order was passed with reference to an overseas enquiry report
which was not supplied to the party. SC found the order to be violation of principles of
natural justice, further imposing a fine of Rs. 25000 on the department.

(g) Reasonable time to file Reply –

After the notice has been received by the person, he must be given opportunity to make a
representation in reply thereto. This opportunity must be real and effective. This right to
make representation also involves grant of sufficient time to prepare the reply (Jeramandas
Punjabi Vs. UOI 1992 (57) ELT 36 BOM). Thought refusal of further time for preparation
of reply is within the discretion of the adjudicating authority, the refusal should not be
arbitrary or fanciful (Commissioner vs. Prestige Engineering (1989 (41) ELT. 530)).
(h)Grant of Personal Hearing - Opportunity for hearing also includes personal hearing apart
from making written representation. Requirements of a fair hearing has two elements-First
that Opportunity to be heard must be given and second that Such opportunity must be real
and not illusory and make believe. A fair and reasonable hearing means a hearing which is
adequate for the purpose of bringing before the officer who makes the decision all the
relevant submissions. If fresh factual evidence is brought in and is likely to influence the
decision, a fresh hearing should be given.

(i) Personal Hearing and Decision by the same officer - The requirement of fair hearing
involves decision being taken by the officer who heard the case. If after hearing, that
particular officer is transferred, normal rule would be that the successor must hear the
arguments afresh before he could pass an order .

(j) Fixing Multiple Dates of PH in Single Letter Violation of PNJ - Another practice being
followed in the field is to fix multiple choices by fixing three dates of personal hearing for
appearance before the adjudicating authority in one letter.

In the case of Bindal Sponge Limited vs. Commissioner of Central Excise,

Bhubaneswar as well as in the case of Afloat Textiles (P) Limited vs. Commissioner of
Central Excise, the Tribunal held that such approach is not in accordance with the principles
of natural justice and remanded the case for fresh adjudication after giving reasonable
opportunity to the party to put forth their case.

(k) Cross Examination - The right to fair hearing involves the right of the affected party to
cross-examine the makers of statements. The Tribunal had time and again held that denial of
cross examination of witnesses, whose statements were relied upon, amounted to violation of
principles of Natural Justice.

(l) Refusal to allow cross-examination of departmental officers constituted violation of

Principles of Natural Justice. Cross examination of the officers who affected the seizure
cannot be denied on the ground that it was not relevant for the defence

(m) It has been laid down that copy of all relied documents to be given and failure to give
such opportunity results in violation of principles of Natural Justice. Officers connected with
the investigation, the department must make them available for cross examination if required.
Cross examination of expert who conducted the test should be afforded
 (n) This right can fully be denied in exceptional cases and only for justifiable reasons or
where statute denies the right. Cross examination is covered under Section 137 of the Indian
Evidence Act, 1872 (as amended). Quasi-judicial proceedings are not governed strictly by the
provisions of law observed by the Courts in the legal proceedings before them.

(o) Requests for cross-examination may be denied under the following situations-

(i) Warranting cross examination of the source(informer):

(ii) When there are enough and more documentary evidences, the copies of all of which
furnished;

(iii) When the witnesses to be made available for cross examination are in foreign countries
and the expenditure involved will not be commensurate with the seizure, revenue involved
etc. and

(iv) Enough care to be taken in allowing cross examination of experts by another expert
which should not unnecessarily protract or prolong the proceedings.

The reasons for denial should be clearly detailed in the order passed. However, refusal of
permission to cross-examine witnesses of the party himself would not amount to denial of
natural justice.

(p) Right of Legal Representation - Fair hearing also involves right of the legal representation
during enquiry. Here the rule is that when one of the parties is represented by counsel, or at
least legally trained persons, the right of the other side to be represented by counsel is not to
be denied.. Similarly, the department has the right to have assistance of its own officers even
though they may be the investigating officers in the conduct of the adjudicating proceedings
(Sanghi Textile Processors vs. Commissioner 1991(55) E.L.T. 151 A.P.)

iii. Speaking Order (Reasoned Decisions)

A ‘speaking order’ means an order speaking for itself by giving reasons. Speaking orders are
necessary if the judicial review is to be effective. The party affected must know why and on
what grounds an order has been passed against him. This is a new principle of natural justice
which has been recognised in India and USA, but, however, yet to be recognised under
English Law.
 There is no general rule of English law that reasons must be given for administrative or even
judicial decisions. In India also till very recently, it was not accepted that the requirement of
passing speaking orders is one of the principles of natural justice. However, now it is well
established principle of natural justice. The Courts have specifically held that passing of a
speaking order is a part and parcel of natural justice

. As the Hon’ble Supreme Court observed in M.P. Industries vs. Union of India, “So it is
essential that some restrictions shall be imposed on Tribunals in the matter of passing orders
affecting the rights of parties and the least they should do is to give reasons for their orders.”

The courts have justified the requirement for a speaking order on three grounds:

1) the party aggrieved has the opportunity to demonstrate before the appellate or revisional
court that the reasons which persuaded the authority to reject his case were erroneous;

2) the obligation to record reasons operates as a deterrent against possible arbitrary action
by executive authority invested with judicial power; and

3) it gives satisfaction to the party against whom the order is made. The power to refuse to
disclose reasons in support of the order is of an exceptional nature and it ought to be
exercised fairly, sparingly and only when fully justified by the exigencies of an uncommon
situation.

The Supreme Court observed in Siemens Engg. vs. Union of India, “The rule requiring
reasons to be given in support of an order is like the principle of ‘audi alteram partem’, a
basis principle of natural justice, which must inform every quasi-judicial process and this rule
must be observed in its proper spirit and mere pretence of compliance with it would not
satisfy the requirement of law.”

In respect of the speaking order, the law may be summarised as under:

1) Where a statute requires recording of reasons in support of the order, it imposes an

obligation on the adjudicating authority and the reasons must be recorded by the authority.

2) Even when the statute does not lay down expressly the requirement of recording
reasons, the same can be inferred from the facts and circumstances of the case.

3) Mere fact that the proceedings were treated as confidential, does not dispense with
the requirement of recording reasons.

4) If the order is subject to appeal or revision, the necessity of recording reasons is

greater as without reasons the appellate or revisional authority cannot exercise its power
effectively inasmuch as it has no material on which it may determine whether the facts were
correctly ascertained, law was properly applied and the decision was just and based on legal,
relevant and existent grounds. Failure to disclose reason amounts to depriving the party of the
right of appeal or revision.
5) There is no prescribed form and the reasons recorded by the adjudicating authority
need not be detailed or elaborate and the requirements of recording reasons will be satisfied if
only relevant reasons are recorded.

6) If the reasons recorded are totally irrelevant, the exercise of power would be bad and
the order is liable to be set aside.

7) It is not necessary to record reasons by the appellate authority when it affirms the
order passed by the lower authority. (This proposition of law requires reconsideration).

8) Where the lower authority does not record reasons for making an order and the
appellate authority merely affirms the order without recording reasons, the order passed by
the appellate authority is bad.

9) Where the appellate authority reverses the order passed by the lower authority
reasons must be recorded, as there is a vital difference between an order of reversal and an
order of affirmation.

10) The validity of the order passed by the statutory authority must be judged by the
reasons recorded therein and cannot be construed in the light of subsequent explanation given
by the authority concerned or filing affidavit. Orders are not like old wine becoming better as
they grow older.

11) If the reasons are not recorded in the order, it does not always vitiate the action.

12) The duty to record reasons is a responsibility and cannot be discharged by the use of
vague general words.

13) The reasons recorded by the statutory authority are always subject to judicial scrutiny.

Taxation laws are no exception to application of principles of natural justice. As the courts
have held; the principles of natural justice are applicable in tax matters, particularly in the
case of assessment proceedings. Coming to the tax field in CIT vs. Walchand, Justice
Shah observed. “The practice of recording a decision without reasons in support cannot, but
be deprecated.”

In Surajmal’s case, the Hon’ble Supreme Court observed: “The assessment has to be
made on relevant materials as evidenced and the assessee ordinarily has the fullest rights to
inspect all records and materials that are to be used against him. Under the provisions of
section 37 of the Indian Income-tax Act, 1922, the proceedings before the Income Tax
Officer are judicial proceedings and all the incidence of such judicial proceedings are to be
observed before the result is arrived at.
 In other words, the assessee would have a right to inspect the records and all relevant
documents before he is called upon to lead evidence in rebuttal. The broad principles
emerged in view of application of principles of natural justice are the assessing officers
exercising quasi-judicial function would be governed in procedure by judicial consideration
and must conform to the rules of natural justice.

That is to say, he must proceed without bias and give sufficient opportunity to the assessee to
place his case before the Department. He must conduct himself in accordance with the
principles of justice, equity and good conscious. The assessing officer cannot rely on any
evidence or any fact in arriving in his conclusion without first pointing out the same to the
assessee and giving him a reasonable opportunity of meeting the case which is ultimately
made out in the assessment order.

In the case of Dhakeswari Cotton Mills, where the principle of natural justice were
violated, the Supreme Court set aside the assessment.”

Useful reference may be made to the following cases, wherein the issue of operation of
Principles of Natural Justice was considered.

The Supreme Court in CIT vs. Electro House set aside the order of the Commissioner u/s.
263 as the Commissioner has not given a reasonable opportunity of being heard to the
assessee. However, the Hon’ble Supreme Court held that the violation of Rule affected only
the order and not the jurisdiction of the Commissioner and as such, it held that, the
Commissioner could pass a fresh order after hearing the assessee.

Similarly, the Hon’ble Andhra Pradesh High Court in Moh. Begum vs. CIT held that
the order passed in violation of principles of natural justice, does not make the whole
proceedings invalid ab initio, but it only affects the order passed in violation of these
principles.

In Raja vs. CIT, the Hon’ble Madras High Court held that any order passed in violation of
principles of natural justice is null and void. However, as long as the order so passed is not
set aside by the competent Court or Authority, it will continue to operate.

The Hon’ble Supreme Court again in Supt. Excise vs. Pratap Rai and CIT vs. National
Taj Theatres held that the order passed in violation of natural justice, though void, it does
not affect the jurisdiction otherwise vested in such authority and in exercise of such authority,
it can pass fresh orders. The Hon’ble Court also held that the limitation to pass the order
within two years under section 263 would be applicable only for passing the original order
and not for passing a fresh order in pursuance of the Appellate or other order setting aside the
original order.
The Courts have held that the Assessing Officer need not hear the assessee before recording
the reasons for re-opening the completed assessment and before initiating reassessment
proceedings. Similarly, it has been held that the Wealth Tax Officer need not hear the
assessee before referring the matter for valuation to the Valuation officer u/s.16A of the
Wealth-tax Act, 1957. However, the Courts have held that the Valuation Officer must hear
the assessee before he makes his valuation report.

In Kapurchand vs. CIT the facts were that the Commissioner had passed an order in
violation of principles of natural justice. In such cases, the Hon’ble Supreme Court held that
the Tribunal, while cancelling the order ought to have directed the Commissioner to pass a
fresh order.

In Ajanta Industries vs. CBDT, The Hon’ble Supreme Court set aside an
order u/s.127 of the Income-tax Act, 1961 for transferring the case of the
assessee, because the reasons recorded for his satisfaction were not conveyed
to the assessee, and as such, such order was passed in violation of the
principles of natural justice.

In Briharilal vs. CIT, the Hon’ble Supreme Court held that a garnishee order passed without
hearing the person against whom it is passed in the course of recovery proceedings, is void
because the same had violated principles of natural justice.

The rules of natural justice were fully applied in case of exercise of jurisdiction of the
Commissioner u/s. 273A for waiver or reduction of penalty, interest etc. The Commissioner
must pass a speaking order while exercising his jurisdiction u/s. 273A, giving reasons for his
answer and non speaking order is liable to be set aside. Similarly, while passing the order, he
should take into account all material facts and should not take into account facts which are
not material.

In case of the authorities exercising jurisdiction to grant approval or exemption and the tax-
payer has a right to claim it on fulfilment of the statutory condition, the tax-payer should be
given a reasonable opportunity of being heard, and the authority is bound to pass a speaking
order and give reasons in support of his finding that the tax-payer is not entitled to the
approval or exemption (Bharat Nidhi vs. Union of India). Similarly, the assessing, appellate
and revisional authorities must pass speaking orders.
Exceptions to Principles of Natural Justice

I. Emergency
- In India, it has been generally acknowledged that in cases of extreme urgency, where
interest of the public would be jeopardizes by the delay or publicity involved in a
hearing, a hearing before condemnation would not be required by natural justice or in
exceptional cases of emergency where prompt action, preventive or remedial, is
needed, the requirement of notice and hearing may be obviated. Therefore, if the right
to be heard will paralyze the process, law will exclude it.
- In Mohinder Singh Gill vs. CEC, whether notice and right to be heard must been
given or not was been laid down before the SC.
- In Firozhpur Constituency Parliamentary Election counting was been going on where
in some segments counting were going on and in some it was over. One candidate was
having a very good lead but before the declaration of the results, in a mob violence in
some segments ballot papers and boxes were been destroyed. The ECI acting under
Article 324, 329 without giving any notice or hearing to the candidates cancelled the
Election and ordered for fresh Election. The SC rejected the claim of notice and audi
alteram partem and held that in case of emergency, Audi Alteram Partem can be
excluded.

II. Confidentiality
- Exclusion of natural justice can also take place when confidentiality is demanded and
is necessary to be maintained.
- In Malak Singh v. State of P&H, the SC held that the maintenance of Surveillance
Register by the Police is a confidential document and neither the person whose name
is entered in the Register nor any other member of the public can have excess to it.
- Furthermore, the Court observed that observance of the principles of Natural justice in
such a situation may defeat the very purpose of surveillance and there is every
possibility of the ends of justice being defeated instead of being served.

III. Impractibility
- Natural justice can be followed and applied when it is practicable to do so but in a
situation when it is impracticable to apply the principle of natural justice then it can
be excluded.
- In Bihar School Examination Board vs. Subhash Chandra, 2 the Board conducted
final tenth standard examination. At a particular centre, where there were more than
thousand students, it was alleged to have mass copying. Even in evaluation, it was
prima-facie found that there was mass copying as most of the answers were same and
they received same marks.
- For this reason, the Board cancelled the exam without giving any opportunity of
hearing and ordered for fresh examination, whereby all students were directed to
appear for the same. Many of the students approached the Patna HC challenging it on
the ground that before cancellation of exam, no opportunity of hearing was been given
to the students. The HC struck down the decision of the Board in violation of Audi
Alteram Partem. The Board unsatisfied with the decision of the Court approached the
SC.
- The SC rejected the HC judgment and held that in this situation, conducting hearing is
impossible as thousand notices have to be issued and everyone must be given an
opportunity of hearing, cross-examination, rebuttal, presenting evidences etc. which is
not practicable at all. So, the SC held that on the ground of impracticability, hearing
can be excluded.

IV. Academic Evaluation

- Where nature of authority is purely administrative no right of hearing can be claimed.
In Jawaharlal Nehru University v. B.S. Narwal , B.S Narwal, a student of JNU was
removed from the rolls for unsatisfactory academic performances without being given
any predecisional hearing. The Supreme Court held that the very nature of academic
adjudication appears to negative any right of an opportunity to be heard. Therefore, if
the competent academic authorities examine and asses the work of a student over a
period of time and declare his work unsatisfactory, the rules of natural justice may be
excluded.

V. Inter-Disclipinary Action
- In Inter- Disciplinary action like suspension etc. there is no requirement to follow the
principle of natural justice. In S.A Khan vs. State of Haryana, Mr. Khan an IPS
Officer holding the post of Deputy Inspector General of Haryana; Haryana Govt., was
suspended by the Haryana Government due to various complaints against him. Thus,
he approached the Supreme Court on the ground of violation of PNJ as he was not
given an opportunity to be heard. The SC held that the suspension being interim-
disciplinary action, there is no requirement to afford hearing. It can be ordered
without affording an opportunity of hearing.

VI. Useless Formality Theory‘

- Useless formality’ theory is yet another exception to the application of the principles
of natural justice but it should be used with great caution and circumspection by the
Court otherwise it would turn out to be wheel of miscarriage of justice.
- It can only be used where on the admitted or undisputed facts only one conclusion is
possible and under the law only one penalty is permissible, the Court may not insist
on the observance of the principles of natural justice because it would be futile to
order its observance- S.L Kapoor vs. Jagmohan [1980] 4 SCC 379,395 136 (SC)
- In Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational
Institution v. Education Appellate Tribunal, a lecturer, who had been granted leave
for doing M. Phil, in violation of leave condition, had joined a Ph. D course. She was
given notice and after considering her reply, wherein she had admitted joining Ph. D
course, her service was terminated. She challenged the termination order before
Karnataka Private Educational Institutions (Discipline and Control) Act, 1975
subsequently it is appealed to HC where termination was held invalid, but SC held
that opportunity to show cause was not necessary where facts are undisputed and the
affected person could not fourth any valid defence.

VII. Government Policy Decision

- In Balco Employees’ Union Vs UOI, the Supreme Court was of the view that in
taking of a policy decision in economic matters at length, the principles of natural
justice have no role to play. In this case, the employees had challenged the
government’s policy decision regarding disinvestment in public sector undertaking.
The court held that unless the policy decision to disinvest is capricious, arbitrary,
illegal or uninformed and is not contrary to law, the decision to disinvest cannot be
challenged on the ground of violation of the principles of natural justice.
 Administrative Discretion and Judicial Control of Administrative Action

Administrative Discretion

Discretion is the power usually given by the statute to make a choice among competitive
considerations. Lord Halsbury analyzing the meaning of administrative discretion has
observed: ―Discretion means when it is said that something is to be done within the
discretion of authorities that something is to be done according to private opinion Rook‘s
case, according to law and not humor. It was to be not arbitrary vague and fanciful but legal
and regular. Prof. Freund4 has given a very good analysis of administrative discretion.

He says: ―When we speak of administrative discretion, we mean that a determination may

be reached, in part at least, upon the basis of considerations not entirely susceptible of proof
or disproof. A statute confers discretion when it refers an official the use of his power to
beliefs, expectations, or tendencies instead of facts, or to such terms as adequate‘ advisable‘,
appropriate‘ beneficial‘, fair‘, fit‘, necessary‘, practical‘, proper‘, reasonable‘, reputable‘,
safe‘, sufficient‘, wholesome‘ or other opposites‘. These lack the degree of certainty
belonging even to such difficult concepts as fraud and indiscrimination or monopoly.

They involve matter of degree or an appeal to judgment. The discretion enlarges as the
element of future probability preponderates over that of present conditions; it contracts
wherein certain styles of cases equally tend to become standardize, as in matters of safety; on
the other hand, certain applications to the concept of immorality, fraud, restraint of trade,
discrimination or monopoly are so controversial as to operate practically like matter of
discretion.

In other words, there is no sharp line between questions of discretion on the one hand, and
questions of fact on the other; and where an administrative fact is permitted to be conclusive,
it will usually be a case on the border line between fact and discretion. It may be practically
convenient to say that discretion includes the case in which the ascertainment of fact is
legitimately left to administrative determination.

Need for Discretionary Powers

The Legislatures were compelled to confer vast discretionary powers on the administration
because it is not always possible to lay down standards or norms for the exercise of
administrative power. Administration is always asked to solve a problem, whenever it arises,
for the Legislature is not sure how it can be solved. It is only administration which is deemed
competent to do and, therefore, power is left with it in rather broad terms. The conferment
power assumes that the power should be exercised independently by the authority concerned
according to his own assessment.
 It imposes a duty to do so, subject, of course, to the limitation provided by law and of being
within the ambit of the power. The administrative authorities vested with such powers should,
therefore, act on their own record; they should not be guided by the direction or instruction
their superiors in the discharge of the power.

The Supreme Court in U.P. State Road Transport Corp. v Mohd. Ismail, rightly observed that
the discretion allowed by the statute to the holder of an office is intended to be exercised
―according to the rules of reason and justice, not according to private opinion, according to
law and not humor, it is to be, not arbitrary, vague, and fanciful, but legal and regular. And it
must be exercised within the limit, to which an honest man competent to the discharge of his
office ought to confine himself.

Discretionary power may be conferred generally or with a duty attached to the exercise of
that power, where the power and duty to exercise it go together, the authority empowered is
under a statutory liability to exercise its discretionary power and if it refused to do so, the
court of law may compel its exercise,

In England the refusal to exercise discretionary power, where it imposes a duty to exercise it,
entails a liability to damages, no such law has developed in India till now, whereby the
Government could be held liable for damages caused to any individual on account of refusal
to perform it or performing it negligently. The court may compel the authority to exercise
their discretion where they have been expressly invested with such power; this exercise of
discretion by the authority on which such discretion is conferred must not be lightly
interfered with.

There is an essential distinction between refusal to exercise the discretion and manner of its
exercise. If the authority fails to discharge his duty by refusing to exercise his discretion
when facts calling for its exercise exist, the court will compel him to do so, if the authority
concerned exercises his discretion honestly and in the spirit of the statute, no mandamus will
be issued directing him to exercise his discretion in a particular way.

How far statutory authority can be compelled to exercise its statutory discretionary duty has
been answered by the Supreme Court in Ratlam Municipality v. Vardhichand. In the present
case, the residents of certain localities of Ratlam Municipality tormented by stench and stink
caused by open drains and public excretion by nearby slum dwellers moved the Municipality
to do its duty towards the members of the public by removing the insanitation. After they
failed, they moved the Magistrate under Section 133 of Cr. P.C. to require the Municipality to
abate the nuisance. Ultimately the case came up before the Supreme Court can compel a
statutory question was whether by affirmative action a court can compel a statutory body to
carry out its duty to the community by constructing sanitation facilities at great cost and on a
time bound sanitation. The court rejecting the plea of financial disability of the Municipality
held that the court can compel the statutory body to perform its discretionary duty and thus
the Municipality was directed to remove the nuisance with in a period of six months from the
date of judgment.
 The court also directed the Magistrate for prosecuting the Municipal Officers in case they
fail to discharge their duty of removing nuisance. It was observed by the court that the law
will relentlessly be enforced and the plea of poor finance will be poor alibi when people in
misery try for justice.

The dynamics of the judicial process has a new enforcement dimension not merely through
some of the provisions of the Criminal Procedure Code but also through tort consciousness.
The officers – in – charge and even the elected representatives will have to face the penalty of
the law if what the Constitution and follow up legislation direct them to do are defied or
denied wrongfully.

In U.P. State Road Transport Cop. V. Mohd. Ismail, the Court ruled that the statutory
discretion cannot be fettered by self-created rules or policy. Although it is open to an
authority to which discretion has been entrusted to lay down the norms or rules to regulate
exercise of discretion, it cannot, however, deny itself the discretion which the statute requires
it to exercise in individual cases. There may, however be case where a statute confers upon
any authority a general discretion to take an action ‗if certain conditions as specified in the
statute are fulfilled‘ in a permissive language, the authority is competent to refuse to exercise
the discretionary power even though statutory conditions are fulfilled.

Judicial Review of Administrative Discretion in India – Read Consti. Unit III

In India, unlike the U.S.A. there is no Administrative Procedure Act providing for judicial
review of administrative discretion. Therefore, the power arises from the constitutional
configuration of courts.

The courts in India have always held the view that judge-proof discretion is a negation of the
rule of law. Therefore, they have developed various formulations to control the exercise of
administrative discretion.

These formulations may be conveniently grouped into following broad generalizations

(i) That the authority is deemed not to have exercised its discretion at all.

(ii) That the authority has not exercised its discretion properly.

(iii) That the authority is deemed not to have exercised its discretion at all : Under this
categorization the courts exercise judicial control over administrative discretion if the
authority has either abdicated it power or has put fetters on its exercise or the jurisdictional
facts are either non- extent or have been wrongly determined.

Purtabpore Company Ltd. v. Cane Commissioner of Bihar (1969):

In this case the Cane Commissioner who had the power to reserve sugarcane areas for the
sugar factories, at the dictation of the Chief Minister excluded 99 villages from the area
reserved by him in favour of the appellant company.
The Court quashed the exercise of discretion by the Cane Commissioner on the ground that
he abdicated his power by exercising it at the dictation of some other authority; therefore, it
was deemed that the authority had not exercised its discretion at all.

However, this does not mean that the administrative authority cannot frame broad policies for
the exercise of its discretion. In Sri Rama Sagar Industries Ltd. v. State of A.P. (1974),
Section 21 of the A.P. Sugarcane (Regulation, Supply and Purchase) Act, 1961 gave power to
the administrative authority to exempt from payment of tax any new factory which has
substantially expanded.

The government framed a policy granting exemption only to factories in the cooperative
sector. The Supreme Court, negotiating the contention that the adoption of this policy has
fettered the exercise of discretion, held that a body endowed with a statutory discretion may
legitimately adopt general rules or principles of guide itself in the exercise of its discretion
provided such rules are not arbitrary and not opposed to the aims and objectives of the Act.

The court further remarked that by adopting such scales the agency must not disable itself
from exercising genuine discretion in individual cases. Justice Mathew and Justice Bhagwati
however, gave a dissenting opinion on the ground that the adoption of policy, as has been
done in this case, predetermines the issue.

This is an all embracing formulation development by the courts in India to control the
exercise of discretion by the administrative authority. In proper exercise of discretion
includes everything which English courts include in ‘unreasonable’ exercise of discretion and
American courts include in ‘arbitrary and capricious’ exercise of discretion.

Improper exercise of discretion includes such things as ‘taking irrelevant considerations into
account’, acting for in bad faith, ‘neglecting to take into consideration relevant factors’ or
‘acting unreasonably’.

Barium Chemicals Ltd. v. Company Law Board 1967:

This case shows a definite orientation in the judicial behaviour for an effective control of
administrative discretion, in India. In this case the Company Law Board exercising its powers
under Section 237 of the Companies Act, 1956 ordered an investigation into the affairs of
Barium Chemicals Ltd.

Under Section 237 the Board is authorised to order investigation if in its opinion the business
of the company is being conducted with intent to defraud its creditors or members etc. or the
management of the company is guilty of fraud, misfeasance or other misconduct or the
members of the company have not been given all information about in the affairs of the
company.
However, the basis of the exercise of discretion for ordering investigation was that due to
faulty planning the company incurred a loss, as a result of which the value of the shares had
fallen and many examined persons had resigned from the Board of Directors.

The court quashed the order of the Board on the ground that the basis of the factors
mentioned in Section 237 for such exercise of discretion. This case also stands for the
proposition that mere executive declaration that there was material for forming an opinion
will not save the exercise of discretion from judicial scrutiny.

Smt. S.R. Venkataraman v. Union of India (1979):

The appellant, a Central Government officer, was prematurely retired from service in ‘public
interest’ under Rule 560) (i) on attaining the age of 50 years. Her contention was that the
government did not apply its mind to her service record and that in the facts and
circumstances of the case the discretion vested under Rule 5(j) (i) was not exercised for
furtherance of public interest and that the order was based on extraneous circumstances. The
government conceded that there was nothing on record to justify the order.

The Supreme Court, quashing the order of the Government held that if a discretionary power
has been exercised for an unauthorised purpose it is generally immaterial whether its
repository was acting in good faith or bad faith. An administrative order based on reason or
facts that do not exist must be held to be infected with an abuse of power.

The court quoted with approval Lord Esher in The Queen on the Prosecution of Richard
Westbroky. The Vestry of St. Pancras (1890). “If people who have to exercise a public duty
by exercising their discretion take into account matters which the courts consider not to be
proper for the guidance of their j discretion, then in the eye of the law they have not exercised
their discretion”.

G. Sadanandan v. State of Kerala (1966):

The petition challenged his detention order by the government on the ground of malafide
exercise of discretion. The facts were brought before the court to show that the Deputy
Superintendent of Police (Civil Supplies Cell) made a false report against the petitioner who
was a wholesale dealer of kerosene, in order to benefit his relative in the same trade by
eliminating the petitioner from the trade. In the absence of counter-affidavit from the side of
the government the court quashed the order.
R.D. Shetty v. International Airport Authority (1979):

In this case the issue was the awarding of a contract for running a second class restaurant and
two snack bars by the International Airport Authority, which is statutory corporation.

The tenders were invited from registered, second class hoteliers’ and it was clearly stipulated
that the acceptance of the tender would rest with the Airport Director who would not bind
himself to accept any tender and reserved to himself the right to reject all or any of the
tenders received without assigning any reason. The highest tender was accepted.

The only snag was that the tender was not an hotelier at all. A writ petition was filed by a
person who was himself neither a tender nor an hotelier. His grievance was that he was in the
same position as the successful if an essential condition could be ignored in the tender’s case
why not in the petitioner’s? The Supreme Court accepted the plea of locus stand in
challenging the administrative action.

Justice P.N. Bhagwati, who delivered the judgment of the court, held:

1. Exercise of discretion is an inseparable part of sound administration and therefore, the

State which is itself a creature of the Constitution, cannot shed its limitation to any time in
any sphere of State activity.

2. It is a well settled rule of administrative law that an executive authority must be rigorously
held to the standards by which, it processes its actions to be judged.

3. It is indeed unthinkable that in a democracy governed by the rule of law the executive
government or any of its officers should possess arbitrary powers over the interests of an
individual. Every action of the executive government must be informed with reason and
should be free from arbitrariness. That is the very essence of the rule of law and its bare
minimal requirement.

4. The government cannot be permitted that it will give jobs or enter into contracts or issue
quotas or licenses only in favour of those having grey hair or belonging to a particular
political party or follower of a particular religious faith. The government when it acts in the
matter of granting largesse it cannot act arbitrarily. It does not stand in the same position as a
private individual.

This case is not an attempt in judicialising the administrative process but only reiterates that
the exercise for discretion must not be arbitrary fanciful and influenced by extraneous
consideration. In matters of discretion of choice must be dictated by public interest and must
not be unprincipled or unreasonable.

It has been firmly established that the discretionary powers given to the government or quasi-
governmental authorities must be hedged by policy standards procedural safeguards or
guidelines, failing which the exercise of discretion and its delegation may be quashed by the
courts.
This principle has, been reiterated in many cases. The courts have also insisted that before the
exercise of discretion the administrative authority must also frame rules for the proper
exercise of the discretion.

Courts have emphasised that even the power to the President or the Government to grant
pardon and to suspend remit or commute sentences or power of the Chief Minister to allot
government plots or houses from discretionary quota or to make nominations to medical or
engineering colleges must conform to this: norm.

In a case, the Himachal Pradesh High Court struck down the nomination of three students to
the State Medical College made by the Chief Minister out of his discretionary quote for 1982-
83.

The main thrust of attack in a bunch of petitions challenging these nominations was that no
guidelines have been prescribed for the exercise of discretion and hence the power is
uncanalised and able to be abused and may be subject to political pulls and pressures.

Quashing these nominations, the court emphasised that while college prospectus leaves
nominations to the discretion of the Chief Minister it has not provided any clear guidelines
with reference to which the Chief Minister was to exercise his discretion. Thus within the
area of administrative discretion the courts have tried to fly high the flag of Rule of Law
which aims the progressive diminution of arbitrariness in the exercise of public power.

Nevertheless, the Supreme Court has reiterated that the judicial investigation of
administrative decision would not extend far as reviewing the actions on merit. In P.
Kasilingam v. P.S.G. College of Technology (1981), the court held that a High Court
transgresses its jurisdiction under Article 226 if it enters upon the merits of the controversy
by embarking upon an inquiry into the facts.

Furthermore, the court has developed a kind of caste-based hierarchic view of administrative
responsibility when it presumes that high authority is unlikely to use its discretionary powers.
This presumption is certainly conjectural and hence not tenable. This makes the judicial
review of administrative discretion marginal and feeble.

a. Need and its Relationship with Rule of Law

Need of discretion

Because of the complexity of socio-economic conditions which the administration in modern

times has to contend with, it is realised that a government having only ministerial duties with
no discretionary functions will be extremely rigid and unworkable and that, too some extent,
officials must be allowed a choice as to when, how, and whether they will act.
The reason for this is that, more often than not, the administration is required to handle
intricate problems which involve investigation of facts, making of choices and exercise of
discretion before deciding upon what action to take. Thus, the modern tendency is to leave a
large amount of discretion with various authorities. Statute book is now full of provisions
giving discretion of one kind or the other to the government or officials for various purposes.

The need for ‘discretion’ arises because of the necessity to individualize the exercise of
power by the administration, i.e. the administration has to apply a vague or indefinite
statutory provision from case to case.

There are following good reasons for conferring discretion on administrative authorities:

(a) The present day problems which the administration is called upon to deal with are of
complex and varying nature and it is difficult to comprehend them all within the scope of
general rules;

(b) Most of the problems are new, practically of the first impression. Lack of any previous
experience to deal with them does not warrant the adoption of general rules

(c) It is not always possible to foresee each and every problem but when a problem arises it
must in any case be solved by the administration in spite of the absence of specific rules
applicable to the situation’,

(d) Circumstances differ from case to case so that applying one rule mechanically to all cases
may itself result in injustice.

However, from the point of view of the individual, there are several disadvantages in the
administration following the case to case approach as compared to with the adoption of a
general rule applicable to all similar cases-

First, whereas case to case decisions operate on the past facts, a general rule usually avoids
retroactivity and operates in future so that one has prior notice of the rules and thus may
regulate his conduct accordingly. In case to case approach, the individual may be caught by
surprise and may not be able to adjust his affairs in the absence of his ability to foresee future
administrative action.

Second, the case to case approach involves the danger of discrimination amongst various
individuals; there arises a possibility of not getting like treatment under like circumstances.

Third, the process is time consuming and involves decision in a multiplicity of cases. Also,
there is a danger of abuse of discretion by administrative officials. In view of these manifold
disadvantages, a general rule is to be preferred to the case to case approach and ought to be
adopted wherever possible.
It is desirable to have administrative uniformity to the extent possible, because, as a matter of
general principle, substantial lack of uniformity would lead not only to administrative chaos
but also to collapse of public confidence in administrative fairness. In any individual case, it
is highly relevant to take into account what has been done in other cases of a similar nature,
otherwise a decision may result which could be regarded as being improper or discriminatory.

This objective can be advised by several ways viz. –

First, law conferring discretion may itself seek to lay down the elements and standards which
the authority has to apply in exercising its discretion and selecting a course of action. This
means that the degree of discretion should be restricted by law itself as far as possible, or, in
other words discretion should be properly “confined and structured”.

Two, if a statute leaves a large amount of discretion in the hands of administration, the
administration itself lay down criteria with respect to which the discretion is to be exercised.
!t would help in predicting administrative decision in individual cases, thus, making
individual’s rights somewhat certain and reducing chances of abuse of administrative
discretion. It would also help in uniform application of the law in a large number of cases
which may have to be handled, especially when a number of parallel and co-equal
administrative authorities have to cope with cases arising under a particular scheme.

Three, on a lower plane, to some extent administrative discretions and norms of practice can
be used, instead of the rules, for the purpose of achieving uniformity in discretionary
decisions, but these should be resorted to only when the scheme is too much in an
experimental stage and constant adjustment may have to be made for some time to come
otherwise rules are preferable to directions as they can be enforced judicially.

But it needs to be emphasized that while laying down standards make the discretion
somewhat less than absolute, no amount of rules or directions can really eliminate the need
for discretion because administration functions in a very broad area and individual cases and
situations are bound to arise which may fall outside the guiding norms and the administration
will have to take some decision therein.

Not all acts of the administration can be bound by fixed rules. Many a time, it may not be
possible to prescribe it intelligible standards for the administration to follow. All these
considerations make it inevitable that discretion be vested in the administration to take care of
individual cases. But it also brings in the question of judicial and other control over
discretionary powers.
Rule of Law and Administrative Discretion

Dicey used the phrase 'rule of law' for the first time in 187513 to describe a salient feature of
the Constitution. He borrowed the concept of 'rule of law' from W.E. Heam. Besides, he also
relied upon the testimony of previous constitutional authorities - Coke and Blackstone.

His fear of discretionary power formed the most important corollary to the first element in the
rule of law. He equated discretion with arbitrariness and was firmly of the viewpoint that
vesting of discretionary powers in the government must mean insecurity for legal freedom to
the part of its subjects,

He believed that discretionary authorities are oppressive, caprice, despotic and entail the rule
of lawlessness. He philosophized that no man was above law, every man, whatever his rank
or status was subject to the law of the land. Every governmental official, he believed, shared
the same responsibility for his acts as did every ordinary citizen.

To him, though some officials incurred by virtue of their office legal liabilities from which
other citizens were exempt, they could not because of that fact avoid the legal obligation
borne by all citizens.

Dicey equated rule of law with the predominance of the legal spirit. For him, right of
citizenry proceeded from the general principles of the Constitution. He contrasted rule of law
with the system of administration law prevailing in France.

He, to avoid the abuses of administrative law, pioneered a method of legal analysis. The
cardinal principle on which he worked out his thesis was that no official who has illegally
interfered with the liberty of a citizen might plead that he had merely followed the orders of a
superior, for; each beaurocrat was individually responsible for his decision. He feared that
arbitrary legal system was always fatal to the rule of law.

Ivor Jenning did not find favour with the philosophy of rule of law propounded by A. V.
Dicey. He concluded that rule of law did not signify that Dicey had hoped about the
supremacy of law. He argued that Dicey defined liberty only in the negative sense of freedom
from the government interference.

His thought, Jenning claimed, to be highly idealistic, though sounding high yet impractical in
functional aspect of the society. While criticizing Dicey, Jenning claimed that the Diecyian
philosophy of rule of law embodied a traditional concept, signifying freedom from arbitrary
government activity in every sphere of life.

Jenning viewed that government need to be clothed with discretionary power as a cure to
social problems. He reflects a positive liberalism favouring the governmental intervention to
uphold the expectations of the people documented in the law of the land. Thus, many
expectations to the rule of law, according to Jenning, were really the expectations that proved
the rule, no examples destructive of the rule of law itself.
 Thus, critics find the rule of law as a protection against the arbitrariness of the state action
possible with the growth of government intervention in the day-to-day activities of its citizen.
Contrary to the Dicey viewpoint, the recent critics argue that the rule of law articulates a
basic idea which aims at protecting the individual from arbitrary government.

Modem authorities invest the concept of rule of law with a variety of meaning beyond
Dicey's dreams. They believe that the philosophy of rule of law needs to be liberalised and
expanded evolving all answers to the problems arising out of the constitution of a welfare
society. What is needed is that the actions of the State must be based on end traceable back to
ultimate source of legal authority.

The modem jurists endeavour to regard the rule of law as a fine sonorous phrase and feel that
rule of law must be understood in the global background having its universal validity. J. F.
Gamer, while impounding the philosophy of modem administrative law suggests that 'rule of
law' become the new natural law, a normative ideal towards which all legal systems should
strive. The eminent jurist J. F. Gamer has vehemently criticized A. V, Dicey saying that
discretionary government authorities necessarily lead to diminution of individual freedom.
Gamer believes that the discretionary powers restrained by law need not be arbitrary.

The thinkers envisioned the spectrum of 'rule of law' in two perspectives viz. theoretical and
practical. To them rule of law must find favour and have concurrence theoretical as well as in
practices

Schwartz, while agreeing with a viewpoint of Gamer on conferment of discretionary powers

on administrative authorities, illustrates the fact that the administrative law is now at a
turning point. We seem to be moving towards new period in the field of administrative law
whose essential contours are not yet clear. The modem administrative set up has furnished
answers to the question that who will regulate the regulators.

He supports Gamer on the point of conferring discretionary power on the administrative

authorities. To him, the administrative process has too often proved even more expensive and
time consuming. The administrative process, which had once been vigorous in fighting for
public interest, appears to have become an established part of the status quo cherished by the
political system.

To quote him, "who will regulate the regulators? Our system has not given any answer. He
believes that administrative process is expanding day by day and that has not prevented the
continuing expansion of administrative powers. Disability, welfare, aid to dependent children,
health care, imparting education, old age care, environmental matters have given sharp rise to
new agencies with expanded vast discretionary powers. The law has intended to press these
newer areas into the judicialised mould of the regulatory process

While commenting on the enforcement of vast discretionary power on administrative

agencies, Schwartz wants that the review of discretion is an essential feature of a system
which purports to be governed by rule of law.
Similarly, justice Douglas, while sharing his viewpoint on conferment of discretionary power
with Schwartz, admits "control of discretion is always crucial to effective judicial review.
Since discretion is at the heart of agency power, the administrative law is all about the control
of discretion.''

He lays emphasis on the fact that absolute discretion is a ruthless master; it is more
destructive of freedom than any of man's other invention. Schwartz concludes that a sure test
by which we can judge the effectiveness of a system of administrative law is the extent to
which it permits judicial review of discretion.

The need is to restrain the abuses of discretionary powers. It is perhaps with this point in
mind that the House of Lords has rejected the idea of unfettered administrative discretion in
Britain. It is the reviewing court which must ensure that action taken is not wholly dependent
upon the personal will of the administrator- Lennon v. United States

Prof. Wade, while agreeing with Garner and Jenning on the need of clothing administrative
agencies with discretionary power in the backdrop of establishment of welfare state, opines
that there is always a presumption that, even though widely defined, have always some
ascertainable limits, and that Parliament is unlikely to intend the executive to be the judge of
the extent of its power' therefore, there is always an implied presumption that powers are
given for some particular purpose, hence exercise of such power for any other purpose will be
illegal.

What is apparent is that the court must always take care not to usurp the discretion but find
out ways and means to apply it for the purpose for which it is intended to by the law of the
land. The court's concern is with the legality of what is done. Unlike Dicey, Wade believes
that it is not every mistake which affects legality. It is the essence of discretion that it
involves the power to make mistake. He warns the courts and predicates that the court has;
therefore, to draw a line between the mistake made intra-vires and mistake made ultra-vires.

b. Judicial Review of Administrative Action and Grounds of Judicial Review

Judicial review means review by courts of administrative action with a view to ensuring their
legality. Administrative authorities are given powers by statutes and such powers must be
exercised within the limits of the powers drawn by such statutes.

In judicial review of administrative action the courts merely enquire whether the authority
has decided according to law. In review, reviewing authority does not go into the merit of the
decision while in appeal the appellate authority can go into the merits of the decision. Thus,
judicial review according to de Smith, is "inevitably sporadic and peripheral” in judicial
review, the courts undertake scrutiny of administrative action on the touchstone of doctrine of
'ultra vires’.
the Supreme Court and the High Courts have power to review administrative actions through
writs in the nature of mandamus, certiorari, prohibition etc. under Article 32 and 226 of
Constitution respectively.

In India, these writs have been borrowed from England where they have had a long and
chequered history of development and consequently, have gathered a number of
technicalities,- Bassappa v. Nagappa and Dwarka Nath v. I.T.O. AIR 1966 SC 81.

Indian Courts, generally follow the technicalities of English law. However, the Indian
constitutional provisions are so broad in language that they indicate that Indian courts are not
bound to follow the technicalities of the English law surrounding these writs.

But in practice, the attitude of the Indian courts is by and large conditioned by the English
approach and it is not often that the courts show a tendency to depart from the technicalities
of the English law.

The courts have generally been prone to follow the principles developed in England. While
the administration expands and perfects new techniques to interfere with individual freedom
under the impulse of the concept of a socialistic society; the tools at the disposal of the courts
to control the administrative action remain somewhat antiquated. The result is the anomalous
position that an individual aggrieved by administrative action may always not get relief
through court action.

i. Abuse of Discretion

it is claimed that the authority for the exercise of discretion derives from the statute, the
courts begin by determining whether the discretion has been exercised in conformity with the
express words of the statute and may than go on to determine whether it has been exercised in
a manner that complies with certain implied legal requirements. In some contexts they have
confined themselves to the questions whether the competent authority has kept within the
four corners of the act and whether it has acted in good faith.

Usually they will pursue their inquiry further and will consider whether the repository of
discretion, although acting good-faith, has abused its power by exercising it for an
inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or
with gross unreasonableness. These several forms of abuse of discretion “overlap to a great
extent’ and run into one another” and the task of separating them analytically in particular
fact, situations may be almost insurable. But they are recognised as forming distinct legal
categories.
Thus, under this general heading of judicial control, there fall a few specified and separate
grounds which are discussed below.

(a) Exceeding Jurisdiction ;

An administrative authority is required to exercise discretion within the limits of the statute.'
An action or decision going beyond what is authorised by law is ultra-vires.

For example, if the administrative authority is empowered to control the price of bread it will
be in excess of its jurisdiction to control the price of butter or if an officer is empowered to
grant loan of Rs. 10,000 in his discretion for a particular purpose and if he grants a loan of
Rs. 20,000 he exceeds the power (jurisdiction) and the entire order is ultra-vires and void on
that ground.

In its narrowest sense, the rule requires the interpretation of the specific words conveying and
describing the extent of the power. A classic statement of the operation of doctrine is that of
Lord Selbourne when he said that it. “ought to be reasonably and not unreasonably
understood and applied, and whatsoever may fairly be regarded as incidental to or
consequential upon those things which the legislature has authorised ought not (unless
express prohibited) to he held, by judicial construction, to be ultra-vires”- A.G. v. Great
Eastern Railway Co.

An action of opening a public laundry by the corporation was held to be ultra-vires. In case
of J.K. Chaudhary v. R.K. Datta, the governing body of a college dismissed the principal, but
the university concerned directed to reinstate him. Under the relevant statute the university
could interfere with the decision of the governing body in the case of a ’’teacher" which term
as interpreted by the Supreme Court did not include the Principal. The university, therefore
acted without jurisdiction.

Similarly, in Calcutta Electricity Supply Corpn. v. Workers Union, the relevant regulation
empowered the management to award a claim for medical aid of employees, it will be
exceeding in its jurisdiction in granting the said benefit to the family members of the
employees.

(b) Irrelevant consideration

It the exercise of a discretionary power has been influenced by considerations that cannot
lawfully be taken into account, or by the disregard of relevant considerations, a court will
normally holds that the power has not been validly exercised. Thus, a discretionary power
must be exercised on: relevant and not irrelevant or extraneous considerations. If the
authority concerned pays attention to, or take into account wholly irrelevant or extraneous
circumstances, events or matters then the administrative action is ultra vires and will be
quashed.
The ground of ‘irrelevant considerations” gives an additional dimension to judicial review.

(I) The “Purpose Axiom”

In Padfield v. Minister of Agriculture Lord Reid observed that “Parliament must have
conferred the discretion with the intention that it should be used to - promote the policy and
objects of the Act: Policy and objects of the Act must be determined by construing the Act as
a whole and construction is always a matter of law for the court”.

The courts treat it as axiomatic that when Parliament confers statutory powers upon a public
authority it does so to promote the achievement of a purpose or purposes (“policy and
objects”) which may be discovered from the statute.

If a power granted for one purpose is exercised for a different purpose that power has not
been validly exercised.58

(II) Discovering the statutory purpose :

- Purpose expressed in statute

A statute may provide in terms that an authority ‘may exercise (specified) powers for the
purpose of (achieving a specified result). But often the wording is more elliptical. The statute
may say that the power must be exercised in a manner “best calculated to secure” or
“expedient for the promotion of a specified object. If the authority purports to exercise the
power in disregard of that object it will have ignored the limit to its discretion expressly
imposed by the statutory words. For instance, Sec. 3(1) of civil Aviation Act, 1971 (English
Act) placed under a duty to exercise its functions, including licensing powers, in the manner
it considered “best calculated to secure” (inter alia) a certain measure of competition in the
provision of air services. The Ministerial “guidance” to the authority not to permit
competition on “long-haul” routes was declared ultra-vires in Laker Airways Ltd. v.
Department of Trade, because it required the authority to disregard one of the purposes
expressed in the statute.

- Purpose to be inferred

A statute may confer discretion upon a public authority without any specific statement of
purpose. In that event the purpose of the power can be discerned only by considering broadly
the purpose of the legislation by which it is conferred. The policy and object of the Act is to
be determined by construing the Act as a whole. The construction of a statute is always a
matter of law for the court. The court can quash an exercise of discretionary power if it has
been exercised for reasons which, in the opinion of the court, are not good reasons or are bad
reasons. This gives scope to judicial creativity through the interpretative process, for the
courts can control, to some extent, a statutory power conferred even in very broad term.
But this also creates some uncertainty as no one can be sure, until the highest court has
pronounced its decision, whether a consideration is relevant or not to the power conferred by
a statute,

- Examination of facts :

If the ground of challenge is that relevant considerations have not been taken into account,
the court will normally try to assess the actual or potential importance of the factors that was
over-looked, even though this may entail a degree of speculation. It will often be absurd for a
court to hold that discretion had been invalidity exercised because a trivial factor had been
overlooked. But in certain cases, the validity is contingent on strict observance of antecedent
requirements e.g. consultation with a prescribed body.

Thus, the courts will also examine the facts to find out whether those facts are relevant to the
ground or consideration or not, or whether there was rational or casual connection between
the facts and the grounds, or whether it was possible to draw reasonable inference as to the
grounds mentioned in the order from the facts or whether a reasonable body of persons
properly versed in law could have reached the decision which the administration did.

This has added strength to the courts in reviewing discretionary powers. If the courts would
have confined themselves only to the grounds (or consideration), without going into the facts,
they would not have been very effective in controlling administrative discretion. If relevant
facts are specified in the enabling Act, it is for the court to determine whether they are factors
to which the authority is compelled to have regard and, if so, whether they are to be construed
as being exhaustive. If relevant factors are not mentioned, or specified, it is for the court to
determine whether the permissible considerations are impliedly restricted, and, if so, to what
extent.

Though, the courts have used different terms in the context of irrelevant considerations for
reviewing administrative discretion, yet in essence there is hardly any difference. A simple
situation of quashing administrative action is presented where the order mentions formal
grounds or considerations which are irrelevant.

Thus in Ram Manohar Lohia v. State of Bihar, under the relevant rules, the authority was
empowered to detain a person to prevent subversion of public order’. The petitioner was
detained with a view to prevent him from acting in a manner prejudicial to the maintenance
of ‘law and order'. The Supreme Court set aside the detention. According to the court the
term ‘law and order’ was wider than the term ‘public order’

Again in R.L. Arora v. State of U.P., under the provisions of the Land Acquisition Act, 1894,
the State Government was authorised to acquire land for a company if the government was
satisfied that such acquisition is needed for the construction of a work and that such work is
likely to prove useful to the public. In this case, the land was acquired for a private company
for the construction of a factory for manufacturing of textile machinery.
 The Supreme Court, held that even though it was a matter of subjective satisfaction of the
Govt., since the sanction was given by the Government on irrelevant and extraneous
considerations, it was invalid.

In Hukam Chand v. Union of India, under the relevant rule, the Divisional Manager was
empowered to disconnect any telephone on the occurrence of a ‘public emergency’. When the
petitioner’s telephone was disconnected on the allegation that it was used for illegal forward
trading (Satta), the Supreme Court held that it was an extraneous consideration and arbitrary
exercise of power by the authority.

(III) Leaving out relevant consideration :

The general principle is that a person or authority entrusted with discretion must direct
himself properly in law so that if in the statute there are to be found expressly or by
implication matters which he ought to have regarded to, he must have regard to them.
Conversely if the subject-matter and the general interpretation of the Act make it clear that
certain matters would not be germane to the matter in question, he must disregard such
matters.

In other words, he must take into account relevant and ignore irrelevant consideration.
Professor H.W.R. Wade has explained the principle as “The court will intervene only in two
situations. The first is where the authority has acted on grounds which the statute never
intended to allow...the second is where the authority has failed to take proper account of
something that the statute expressly or impliedly requires it to consider.”

Thus, if in exercising its discretionary power, an administrative authority ignores relevant

considerations, its action will be invalid. An authority must take into account the
considerations which a statute prescribes expressly or impliedly.

Recently, the Supreme Court in Union of India v. Rajender Singh Kadyan has reiterated the
principle as - “It is well known principle of Administrative Law that when relevant
considerations have been taken note of and irrelevant considerations have been eschewed
from consideration and that no relevant aspect has been ignored and the administrative action
has nexus to the facts on record, the same cannot be attacked on merit.!.”

Sometimes a statute itself specifies the relevant considerations e.g. “regard shall be had to”
“must have regarded to” etc. Here, the matter so specified must be taken into account. In case
the statute does not prescribe any considerations but confers power in a general way, the
court may still imply some relevant considerations for the exercise of power and quash an
order because the concerned authority did not take these into account.

However, it is very difficult to prove that certain relevant factors have not been taken into
account, unless detailed reasons are given in the impugned order itself from which it can be
inferred. Till a few years back, because of the absence of reasons, it was very difficult to
establish that the authority had left out relevant considerations.
But with the courts’ insistence on the supply of reasons by administrative authorities, this
ground has become an important one. In Rampur Distillery v. Company Law Board, The
Company Law Board acting under sec. 326 of the Companies Act, 1956 refused to give an
approval for renewing the managing agency of the company concerned. The reasons given by
the Board was that Vivan Bose Commission had severely criticized the dealing of Managing
Director Mr. Dalmia. The Act confers practically an unlimited discretion on the board to give
approval or not, in that the proposed managing agent has to be a “fit and proper person” in
the opinion of the board. The court conceded that the past conduct of director was a relevant
consideration, but before taking a final decision, it should take into account their present
activities also.

Shah J, (as he then was) observed : “In considering whether a person is fit to be appointed as
a managing agent the Board is not restricted to a consideration of his acts, conduct and
activities proximate to the date of the application : The Board has to consider his acts and
activities past and present, the interest of the share-holders and the general interest of the
public in allowing the management to be continued by the directors of the company and other
circumstances which have a bearing on the question,”

In Ranjit Singh v. Union of India, the petitioner had been carrying on the business of
manufacturing guns for a number of years. His quota to manufacture guns was considerably
reduced by the Government. The justification given was that the industrial Policy Resolution
of 1956 envisaged a monopoly in the Central Government for manufacturing arms and
ammunitions. The court said, “any curtailment of quota must necessarily proceed on the basis
of reason and relevance.

In determining the quota of a manufacturing unit, the relevant considerations were the
production capacity of the factory, the quality of the guns produced and the economic
viability of the unit on the one hand and the requirements of current administrative policy
pertinent to the maintenance of law and order and internal security on the other hand. These
factors were impliedly read by the court into the statute. .

Since, the Government had left out these relevant considerations, its. action was held to be
arbitrary. In Ashadevi v. Shivraj the petitioner was detained with a view to preventing him
from engaging in transporting smuggled goods. The order of detention was based on the
detenue’s confessional statement made before the Customs Authorities. But the facts having
bearing on the question whether his confession was voluntary or not were not placed before
the detaining authority. It was held that since the authority did not consider vital facts
relevant to the detention of the petitioner, the detention order was bad.
(IV) Combination of relevant and irrelevant consideration :

Sometimes, a peculiar situation arises. Here the order is not wholly based on extraneous or
irrelevant consideration. It is based partly on relevant and existent considerations and partly
on irrelevant or non-existent considerations. The legal position of such an order in England
may be explained by following examples. Suppose that a public authority has exercised a
statutory discretion to resurface a particular road to provide public lavoratories at a public
place.

Suppose too that the considerations upon which the authority has acted include considerations
which in themselves would have provided a proper basis for the action e.g. the road needed
surfacing; lavoratories could be and were considered necessary at the particular place.

" The approach currently adopted by the Courts in England is to inquire whether the decision
was “Materially” or "substantially” affected by the irrelevant consideration. The action will
be held unlawful if it appears that it would not have been taken in the absence of the
irrelevant consideration. In the two cases referred to in the above examples, challenges failed
on this basis - even in road-mending case, “in truth and in fact the corporation would not have
gone to the expense of (resurfacing) at the time when they did if it had not been for the fact
that the Automobile Club made (an application to them to use the road for a motor-racing
event)".

It was enough that the Council exercised their resurfacing power to make an improvement
which, irrespective of the Club’s application was considered necessary. Similarly, the
decision of a local Education authority to retain an advertising agency, briefed both to inform
the public of the effect of government “rate capping” and to persuade the public that the
government’s plan to abolish the authority was misconceived was declare invalid.

Statute empowered the authority to inform but not to persuade; and the decision to employ
the agency was materially affected by the irrelevant consideration. But in India, there is no
uniformity in the judicial pronouncements. In preventive detention cases, the courts have
taken a strict view of the matter and has held such an order invalid if based on any irrelevant
grounds along with relevant grounds, arguing that it is difficult to say to what extent the bad
grounds operated on the mind of the administrative authority and whether it would have
passed the order only on the basis of the relevant and valid grounds. But the court does not
seem to take the same strict view in other cases not involving personal liberty

ii. Failure to Exercise Discretion

. In the second classification of principles of judicial review of discretionary power fall such
grounds as acting under dictation; acting mechanically or fettering discretion. The main
object of conferring discretionary power on an administrative authority is that the authority
itself must exercise the power by applying its mind to the facts and circumstances of the case
in hand, otherwise, its action or decision will be bad, and the authority is deemed to have
failed to exercise its discretion.
 Such type of flow may arise in several situations: the authority may not apply its mind to the
vital facts or may not comply with the condition precedent for the exercise of its power; or it
may act mechanically; or without due care; or it may abdicate its power to somebody else; or
it may act under the dictation of a superior; or it may impose fetters on the exercise of its
discretionary power.

These categories are not exclusive but overlap. The court sometimes says that the authority
has failed to exercise its mind when it does not take into account vital fact or matter (that is a
relevant consideration.)

To this extent the grounds of “non-application of mind” and “leaving out relevant
consideration" also overlap. Since latter ground has already been considered above, cases
pertaining to it are not examined here.

the ground of "non-application of mind” in the following circumstances:

(1) Fettering discretion by a self imposed rule:

An authority given a statutory discretion is entitled to adopt a policy by which the exercise of
the discretion will in future be determined. The policy must of course be one which it is
entitled to adopt in that it must not be one which the statute expressly or impliedly prohibits,
must not be adopted to achieve an improper purpose, must not be unreasonable. These
matters have been discussed earlier. The rule we are concerned with here is that a body given
discretion by statute must not disable itself from exercising that discretion.

In short, it must not fetter its discretion by policy. In R. v. Port of London Authority, exp.
Kynoch Ltd., the PLA had statutory power to construct docks, and other persons were
empowered to apply to it for a licence to do so. The PLA adopted the policy of not granting a
licence to provide something it was its own statutory function to provide. Kynoch was
refused a licence. Bankes LJ drew this contrast: “There are on the one hand cases where a
tribunal in the honest exercise of its discretion has adopted a policy, and without refusing to
hear an applicant intimates to him what its policy is, and that after hearing him it will in
accordance with its policy decide against him, unless there is something exceptional in his
case...on the other hand, there are cases where the tribunal has passed a rule or come to a
determination not to hear any application of a particular character by whomsoever made.
There is a wide distinction to be drawn between these two classes.”

In the first case, the exercise of the discretion is not wholly excluded (even though there is a
strong disposition to decide in accordance with the policy); in the second case it is. The
decision in the first case is lawful, in the second case it is not.

In Gell v. Teja Noora under the Bombay Police Act, 1863, the commissioner of Police had
discretion to refuse to grant a licence for any land conveyance "which he may consider to be
insufficiently sound or otherwise unfit for the conveyance of the public.
" Instead of applying this discretionary power to individual cases, he issued a general order
that any ‘Victoria’ presented for licence must be of a particular pattern. The High Court of
Bombay held the order bad as the commissioner had imposed fetters on his discretion by self-
imposed rules of policy and failed to consider in respect of each individual carriage whether
it was fit for the conveyance of the public or not.

Similarly in Keshavan Bhashkaran v. State of Kerala the relevant rule provided that no school
leaving certificate would be granted to any person unless he had completed fifteen years of
age. The Director was, however, empowered to grant exemption to this rule in deserving
cases under certain circumstances. But in fact, the Director had made an invariable rule of not
granting exemption unless the deficiency in age was less than two years. The court held that
the rule of policy was contrary to law. Thus, the position is well established that the exercise
of statutory discretion cannot be fettered by adopting a rigid policy or a mechanical rule.

When a statue confers power on an authority to apply a standard, it is expected of it to apply

it from case to case, and not to fetter its discretion by declaring rules or policy to be followed
uniformly in all cases. The authority must consider each case on its merits and then decide it
in one way or the other.

A case somewhat going to against this proposition is Shri Rama Sugar Industries v. State of
Andhra Pradesh under the Andhra Pradesh Sugar (Regulation of Supply and Purchase) Act a
tax was imposed on the purchase of sugarcane by sugar factories but the government was
given power to exempt any new sugar factory from payment of tax for a period of three years.
The government, however, by way of policy decision decided to grant such exemption only
in favour of co-operative Sector, and on behalf of this policy denied exemption to the
appellant. The majority upheld the government decision. It is submitted that the majority
decision does not lay down correct law on the point. Here, the object of the statute was clear,
namely, to encourage production of sugar by giving exemption to new factories and factories
which had expanded.

The dissenting opinion delivered by Mathew, J. rightly pointed out that “the Government, by
making the policy decision, had shut its ears to the merits of the individual applications.”
Further, the policy of giving exemption to factories in co-operative sector had no nexus or
rational relation to the object of expanding production of sugar. In the matter of carrying out
this legislative policy, all factories, whether in co-operative sector or not, stood on the same
footing.

(2) Acting under dictation : Under this categorization, courts exercise judicial control over
administrative discretion if the authority entrusted with a power does not exercise that power,
but acts under the dictation of a superior authority. This, in law, would amount to non-
exercise of power by the authority and will be bad. Here, an authority invested with power
purports to act on its own but “in substance” the power is exercised by another.
The authority concerned does not apply its mind and take action on its own judgement, even
though it was so intended by statute. Purtabpore Company Ltd. v. Cane Commissioner, is a
notable case in point. In this case, the cane commissioner who had the power to reserve
sugarcane areas for the respective sugar factories, at the dictation of the Chief Minister
excluded 99 villages from the area reserved by him in favour of the appellant company. The
court quashed the exercise of discretion by the Cane Commissioner on the ground that he
exercised the power at the dictation of some other authority, therefore, it was deemed that the
authority had not exercised its discretion at all.

Thus, the exercise of discretion or in compliance with instructions of some other person
amounts to failure to exercise the discretion altogether. It is immaterial that the authority
invested with the discretion itself sought the instructions- Anirudh Singhji & Karan Singhji
Jadeja v. State of Gujarat, (1995)5 SCC 302

In Orient Paper Mills v. Union of India, under the relevant statute, the Deputy
Superintendent was empowered to levy excise. Instead of deciding it independently, the
Deputy Superintendent ordered levy of excise in accordance with the directions issued by the
Collector. The Supreme Court set aside the order passed by the Deputy Superintendent.

Again, in Rambharosa Singh v. State of Bihar, the relevant rules empowered the District
Magistrate to give public ferries on lease subject to the direction of the Commissioner.
Instead of the Commissioner, the government gave certain directions. The District Magistrate
acted in accordance with those directions. The High Court set aside the order passed by the
District Magistrate.

Thus, the principle is that when law vests discretionary powers in a designated official, it is
he who has to exercise the same according to his judgement and discretion; and no one else,
howsoever high he may be in the hierarchy can usurp that power or direct the concerned
official to exercise it in a particular manner.

This principle is forcefully exemplified by Chandrika Jha v. State of Bihar. The Supreme
Court held illegal the usurpation by the Chief Minister of the functions vested in the Registrar
of Co-operative Societies. The court ruled that neither the Chief Minister nor the concerned
Minister, “had the power to arrogate to himself the statutory functions of the Registrar." The
order made by the Registrar not at his own discretion in the exercise of his statutory powers,
but at the behest of the Minster was held to be invalid and was accordingly quashed.

The same principle is reiterated by the Supreme Court in State of U.P. v. Maharaja
Dharmander Prasad, (1989)2 SCC 505. where the Supreme Court has observed : “The
authority cannot permit to be influenced by the dictation of others at as this would amount to
abdication and surrender of its discretion. It would then not be the authority’s discretion that
is exercised, but someone else’s. If an authority “hands over its discretion to another body it
acts ultra. Vires”
 Such interference by a person or body extraneous to the power would plainly be contrary to
the nature of the power conferred on the authority’ There is, however, a distinction between
seeking an advice or assistance on the one hand and acting under dictation on the other hand.
Advice or assistance may be taken and then discretion may be exercised by the authority
concerned genuinely without blindly and mechanically acting on advice.

Also it is not wrong for the government to consult the vigilance commissioner on the
findings submitted by the enquiry officer against civil servants as the Govt, is a superior
authority to the commissioner, Sunil Kumar v. State of West Bengal, AIR 1981 SC 477., or
the Account General to constitute a review committee consisting of himself and a few of his
subordinates to consider the cases of compulsory retirement of civil servants- Baldev Raj v.
Union of India, AIR 1981 SC 70.

However, the Karnataka High Court in Viswervera v. State of Karnataka, held that it would
be wrong for a statutory authority to seek guidance from the superior authority even of its
own accord, and to act on its instructions. Because, if the advice comes from a superior
authority or from an advisory committee having an official superior to the authority entrusted
with the discretion, for, in practice it is hardly possible for the authority to disregard the
opinion of a superior. But if authority merely took assistance of subordinates, it can be said to
have acted independently by applying its mind.

(3) Acting Mechanically / Non-application of mind :

When a discretionary power is conferred on an authority, the said authority must exercise that
power after applying its mind to the facts and circumstances of the case in hand. If an
authority in exercising statuary discretion passed an order mechanically, without applying its
mind to the facts and circumstances of the case or without due care and caution; or without a
sense of responsibility of its discretion, the authority cannot be said to exercise of statutory
discretion.

Here also, there is failure to exercise discretion and the action is bad. This may happen either
because the authority has taken one view of its power, or because of inter alia laziness, or
because of its reliance on the subordinates. The situation of an authority acting mechanically
simply relying on the subordinate and not considering the matter itself and applying its own
mind to the facts and circumstances of the case is illustrated by Emperor v. Sibnath Banerji
here an order of preventive detention was quashed as it has been issued in a routine manner
on the recommendation of police authorities and the Home Secretary himself had not applied
his mind and satisfied himself that the impugned order was called for.

In Merugn Satyanarayan v. State of A.P., a preventive case, the court found that the detaining
authority had acted mechanically and abdicated its power to subordinates when the affidavit
in justification of the detention was filed by a subordinate and not the detaining authority
itself. The court stated that the subordinate authority “does not say how he came to know
about the subjective satisfaction of the! District Magistrate.
He does not say that he had access to the file or he is making the affidavit on the basis of the
record maintained by the district Magistrate, From this the court concluded that the detaining
authority (the district Magistrates) had completely abdicated its functions.

In Nandlal v. Bar Council of Gujarat, the Advocates Act, 1961 provides that if on a receipt
of a complaint against an advocate, the State Bar Council has “reason to believe” that the
advocate has been guilty of misconduct, it shall forward the case to the disciplinary
committee. It was held by the Supreme Court that in forwarding a case to the disciplinary
committee the council cannot act mechanically.

It must apply its mind to find out whether there is any reason to believe that any advocate has
been guilty of misconduct only when the Bar council has a reasonable belief that there is a
prima facie case of misconduct, a disciplinary committee, is to be entrusted with inquiry
against the concerned advocate. In the instant case, the reference made by the council to its
disciplinary committee was .held bad as the council had not applied its mind to the complaint
and found that there was a prima facie case to go to the disciplinary committee.

(4) Sub-delegation : A discretionary power must in general be exercised by the body on

which it has been conferred. There is no unanimity as to the basis of this view. One view is
that the maxim delegatus non potest delegate is simply a rule of statutory interpretation.

Another approach is that the applicability of the rule depends on the characterization of the
functions of a body as judicial as opposed to being administrative. Quasi-judicial functions
can ~not be delegated, while administrative functions can be delegated.

The latter approach seems to have been adopted by the Indian Courts. However, the Indian
Courts have not rejected the other approach, namely that the matter is one of statutory
interpretation. Thus, where the State Government instructed that all applications for new
cinema licences should be referred to it for decision it was held that although the legislation
contemplated that licensing authorities would act under the control of the government, it was
nonetheless the licensing authority which had to act and not the government itself: "The
result of the instructions issued by the government is to ... obliterate the licensing authority
from the statue book altogether”- State of Punjab v. Hari Kishan Sharma, AIR 1966 SC 1081
at 1084.

Thus, the principle is that when a power has been confided to a person in circumstances
indicating that trust is being placed in his individual judgement and discretion, he must
exercise that power personally unless he has been expressly empowered to delegate it to
another. The very object of conferring a power on a particular authority is that the power
must be exercised by the authority and cannot be sub delegated to any other authority or
official.

Markose says, 'delegation may be the result of honest misapprehension by the authority
concerned of the legal position. It sometimes arises out of a desire to expedite official
business. But still it will be invalid if it is not legally permitted."
 Thus, in Ganpatisinghji v state of Ajmer the sub-delegation of power was held to be bad. In
the instant case, the Parent Act empowered the Chief Commissioner to make rules for the
establishment of proper system of conservancy and sanitation at fairs. The rules made by the
chief commissioner, however empowered the District Magistrate to devise his own system
and see that it was observed. The Supreme Court declared the rules ultra-vires as the Parent
Act conferred the power on the Chief Commissioner and not on the District Magistrate, and
therefore, the action of the Chief Commissioner sub-delegating that power to District
Magistrate was bad

But in Pradyat Kumar v. Chief Justice of Calcutta, the enquiry against the Registrar of the
High Court was made by a Judge of the court. After considering the report and giving show-
cause notice, he was dismissed by the chief justice. The Supreme Court held that it was not a
case of delegation of power by the Chief Justice but merely of employing a competent officer
to assist the Chief Justice

However, in Union of India v. P.K. Ray the Supreme Court held that if the administrative
authority named in the statute has and retains in its hands general control over the activities of
the person to whom it has entrusted in part the exercise of its statutory power and the control
exercised of the administrative authority is of a substantial degree, there is in the eye of law
no 'delegation' at all and the maxim "delegates-non-potest-delegare" does not apply.

(5) Condition Precedent:

At times the statute may lay down a condition precedent for the exercise of the discretion. If
this condition is not satisfied, the administrative decision will be bad. Thus, “reason to
believe" is a condition precedent.”- Nandlal v. Bar Council of Gujarat, AIR 1981 SC 477,

Similarly, where reasons are to be recorded by the authority for taking action, it is to be done
before and not after taking the action- Narayandas v. State of M.P., AIR 1972 SC 2086; Bawa
Gopal Das Bedi & Sons. V. Union of India, AIR 1982 Pat. 182.

Where the law requires that an action can be initiated only for a definite matter of public
importance, but this condition has not been satisfied, the action will be bad- Orient Paper
Mills v. Union of India, AIR 1979 Cal. 114;

iii. Illegality, Irrationality, Procedure Impropriety/ Doctrine of Proportionality

The application of the doctrine of proportionality in administrative law is a debatable issue

and has not been fully and finally settled. The doctrine of proportionality is one which
confines the limits of the exercise of power to means which are proportional to the objective
to be pursued. Proportionality means that action should not be more drastic than it ought to be
for obtaining the desired result.
Proportionality can be described as a principle where the court is “concerned with the way in
which the administrator has ordered his priorities, the very essence of decision-making
consists, surely, in the attribution of relative importance of the factors in the case...” This is
precisely what proportionality is about.”

If elaborated, it is the preparedness to hold that a decision which overrides a fundamental

right without sufficient objective justification will as a matter of law, necessarily be
disproportionate to the aims in view... The deployment of proportionality sets in focus the
true nature of the exercise; the elaboration of a rule about permissible priorities.”

The doctrine of proportionality used in fundamental rights context involves a balancing test
and the necessity text. The balancing test means scrutiny of excessive onerous penalties or
infringements of rights or interests and a manifest imbalance of relevant considerations. The
“necessity test” means that the infringement of fundamental rights in question must be by the
least restrictive alternative.

In India Fundamental Rights form a part of the constitution, therefore, courts have always
used the doctrine of proportionality in judging the reasonableness of a restriction on the*
exercise of fundamental rights. The law is clear on the point that while deciding the
reasonableness of the restriction on fundamental rights the nature of the right alleged to have
been infringed, the underlying purpose of the restriction imposed, the extent and urgency of
the evil sought to be remedied thereby, disproportion of the imposition, prevailing conditions
at the time should all enter into judicial verdict- Laxmi v. State of U.P. AIR 1981 SC 873

Thus, while exercising the power of judicial review court performs the primary role in
Brind’s sense of evaluating if a particular competing public interest justifies the particular
restriction under the law. This situation arises when the court is deciding on the
constitutionality of a law imposing unreasonable restriction on the exercise of fundamental
rights. Thus, the doctrine of proportionality has been applied to legislative actions.

However, whether the courts dealing with executive or administrative action or discretion
exercised under statutory powers where fundamental rights are involved could apply
principle of ‘proportionality’ and take up primary role is still not certain.

In 1997 while deciding Union of India v. G. Ganayutham, the court left this question open
because it was not necessary for the decision in the case as the party had not pleaded the
violation of fundamental rights. In this case 50% of respondents’ pension and 50% gratuity
had been withheld on proof of his misconduct. One of the grounds taken by respondent was
that the penalty was excessive. The Central Administrative Tribunal came to the conclusion
that the punishment awarded was “too sever” that the lapse was procedural, there was no
collusion between the respondent and any party, that the officer had otherwise done excellent
work and, therefore, it was a fit case where the withholding of pension of 50% had to be
restricted of a period of 10 years instead of on a permanent basis. Allowing the appeal the
Supreme Court held that in such cases the judicial review is restricted to secondary
judgement and thus in review, court cannot substitute its own views of the punishment.
 Power of judicial review is limited to illegality, procedural impropriety and irrationality
meaning thereby that no sensible person who weighed the pros and cons could have reached
at or that the punishment is outrageous in defiance of any logic or standard or morality.
Therefore, as neither the Wednesbury nor CCSU251 tests had been satisfied, the order of the
Tribunal was set aside. It was emphasized by the court that unless the court/Tribunal opines
in its secondary role, that the administrator was, on the material before him, irrational
according to the Wednesbury or CCSU norms, the punishment cannot be quashed.

Even then, the matter has to be remitted back to the appropriate authority for reconsideration.
It is only in a very rare situation in order to shorten litigation that the court may substitute its
own view on punishment. Such a rare situation may include a case where punishment
awarded is such which shocks the conscience of the court/Tribunal.

A similar view was taken in Indian Oil Corpn. v. Ashok Kumar Arora, when the court held
that in matters of punishment the court will not intervene unless the punishment is wholly
disproportionate. The jurisdiction of the High Court under Article 226 of the constitution,
according to the Supreme Court, is highly limited. It can go into the questions of legality,
procedural impropriety and irrationality, therefore, it is not within the power of the court to.
substitute a decision taken by a competent authority simply because the decision sought to be
substituted is a better one.

Thus, it is clear that while deciding the proportionality of a punishment/penalty CCSU Rules
are to be followed. Therefore, unless the punishment is so outrageous and in defiance of logic
that no sensible person could have arrived at it, the court would not interfere. The rule of
proportionality is fully applicable in constitutional adjudication where the court has to decide
on the reasonableness of a restriction on the exercise of fundamental rights.

However its application in the field of administrative law is still in an evolving stage. For the
present the doctrine is not available in administrative law in the sense that the courts cannot
go into the question of choice made and priority fixed by the administrator, the court can only
see if given material before the administrative officer he has acted as a reasonable man.

In an action for review of an administrative action the court cannot act as a court of appeal.
Even in cases where the validity of a restriction imposed on the fundamental right is involved
the court must exercise self-restraint and allow greater margin of appreciation to the
administrator and the legislature in certain cases.

However, recently in Om Kumar v. Union of India, The Supreme Court has observed that in
administrative action affecting fundamental freedoms, proportionality has always been
applied in our country though the word proportionality’ has not been specially used. So far as
the Article 14 is concerned, the courts in India examined whether the classification was based
on intelligible differential and whether the differentia had a reasonably nexus with the object
of the legislation.
when the courts considered the question whether the classification was based on intelligible
differentia, the courts were examining the validity of the differences and the adequacy of the
differences. This is again nothing but the principle of proportionality. The development of the
principle of ‘strict scrutiny’ or ‘proportionality’ in Administrative Law is, however recent.

Administrative action was traditionally being tested on Wednesbury grounds. But in the last
few years administrative action affecting fundamental freedom of expression or liberty has
been declared invalid in several cases applying the principle of ‘strict scrutiny’. In the case of
these freedoms Wednesbury principles are no longer applied.

Further, the Supreme Court has explained the proportionality as “By ‘proportionality’ we
mean the question whether while regulating exercise of fundamental rights the appropriate or
least restrictive choice of measures has been made by the legislature or the administrator so
as to achieve the legislation or the purpose of the administrative order as the case may be.

Under the principle, the court will see that the legislature or the administrative authority
maintain a proper balance between adverse _ effects which the legislation or the
administrative order may have on the rights, liberties 'or interests of persons keeping in mind
the purpose which they were intended to serve.

The legislature and the administrative authority are, however, given an area of discretion or
range= of choices but as to whether the choices but as to whether the choice made infringes
the rights excessively or not is for the court that is what is meant by proportionality’’

Thus, administrative action in India affecting fundamental freedom has always been tested on
the anvil of proportionality in the last fifty years even though it has not been expressly stated
that the principle that is applied is the proportionality. When administrative action is attacked
as ‘discriminatory’ under Article 14, the principle of primary review is for the courts by
applying proportionality.

However, where Administrative action is questioned as ‘arbitrary’ under Article 14, the
principle of secondary review based on Wednesbury principles applies. The principle of
primary review and proportionality on the one hand and the principle of secondary review
and Wednesbury reasonableness on the other hand gave a new dimension to Administrative
Law, the former applies in the cases of fundamental freedoms and the later in other cases,
c. Doctrine of Legitimate Expectations

A legitimate expectation will arise in the mind of the complainant wherever he or she has
been led to understand — by the words or actions of the decision maker – that certain
procedures will be followed in reaching a decision. A Legitimate Expectation amounts to an
expectation of receiving some benefit or privilege to which the individual has no right.
Legitimate Expectation means expectation having some reasonable basis.

The doctrine of Legitimate Expectation has evolved to give relief to the people when they are
not able to justify their claims on the basis of law in the strict sense of the term they had
suffered civil consequences because their legitimate expectation has been violated. Two
considerations apply to legitimate expectations. The first is where an individual or group has
been led to believe that a certain procedure will apply. The second is where an individual or
group relies upon a policy or guidelines which have previously governed an area of executive
action.

In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association, the

corporation had given undertakings to the taxi drivers to the effect that their licenses would
not be revoked without prior consultation. When the corporation acted in breach of this
undertaking, the court ruled that it had a duty to comply with its commitment to
consultation. A public body may act in a manner which creates an expectation in the mind of
a person or body.

In R v Secretary of State for Health ex parte U Tobacco International Inc., the company had
opened a factory in 1985 with a govt. grant, for the production of oral snuff. The government
made the grant available notwithstanding its awareness of the health risks of the product. In
1988, however, the government — having received further advice from a committee —
announced its intention to ban snuff. The company sought judicial review, relying on a
legitimate expectation based on the government’s action. The court ruled, however, that, even
though the applicant had a legitimate expectation, that expectation could not override the
public interest in banning a harmful substance.

In R.P. Singh vs. State of Bihar, the Supreme Court explained that the expression
“established practice” referred to a regular, consistent, predictable & certain conduct, process
or activity of the decision-making authority. The expectation should be legitimate i.e. logical,
reasonable & valid. The doctrine of legitimate expectation would apply in cases where the
decision taken by the authority is found to be arbitrary, unreasonable & not taken in public
interest. Change in policy however, can defeat the legitimate expectation. In such a case, even
by the way of change of old policy, the Courts would not intervene with the decision.

In Jatinder Kumar vs. State of Haryana, the Court held that the Government had a right to
review the decisions taken by the previous establishments & hence it could suspend the
process of recruitment started by previous Government, because of allegations of
irregularities & this could not be challenged on the ground of violation of legitimate
expectation.
d. Evolution of Concept of Ombudsmen

Meaning and Origin:

The meaning of Ombudsman is-an official appointed to investigate individuals’ complaints

against maladministration, especially that of public authority. The precise meaning of the
term Ombudsman is grievance officer. An Ombudsman is a public officer whose function is
to investigate the grievances, raised by citizens regarding maladministration of the authority.

In other words if there are gross lapses in the functioning of the public administration the
citizens have power to lodge complaint against the concerned authority. He is an officer of
parliament.

The concept of Ombudsman at first originated in Sweden, a Scandinavian state, in 1809 more
than two centuries ago. From the beginning of the twentieth century the system began to draw
attention of several other European states.

Origin and Evolution

An ombudsman is a person who acts as a trusted intermediary between either the state,
elements of state or an organization, and some internal or external constituency, while
representing not only but mostly the broad scope of constituent interests.

Ombudsman is etymologically rooted in the Old Norse word umboðsmaðr, essentially

meaning “representative”. In its most frequent modern usage, an ombudsman is an official,
usually appointed by the government or by parliament but with a significant degree of
independence, who is charged with representing the interests of the public by investigating
and addressing complaints reported by individuals.

Whether appointed by the legislature, the executive, or an organization, the typical duties of
an ombudsman are to investigate constituent complaints and attempt to resolve them, usually
through recommendations or mediation. Ombudsmen sometimes also aim to identify
systemic issues leading to poor service or breaches of people’s rights.

At the national level, most ombudsmen have a wide mandate to deal with the entire public
sector, and sometimes also elements of the private sector such as contracted service
providers. In some cases, there is a more restricted mandate, for example with particular
sectors of society. More recent developments have included the creation of
specialised Children’s Ombudsman and Information Commissioner agencies.

The figure of Ombudsman, with its current characteristics, owes its origin from Sweden,
however, its traces may be found in ancient history. In this regards, Dr. Pickle, Director
General of the Austrian Ombudsman’s Office has made the following observation in his
renowned paper: –
“Institution to investigate complaints can only be seen in the context of public administration;
hence their history is also the history of public administration as a whole. It goes back to the
Koran. In the Koran itself the term ‘administration’ is not used, but in many of its verses the
principles of political and administrative system are expounded. Justice is one of the basic
principles of Islamic Ideology.

Before the times of Prophet Muhammad (PBUH) there was no administration in the proper
sense of the word. It was the Prophet who first introduced administrative authorities. He
appointed governors of the provinces, judges and tax collectors. They were all accountable to
the Prophet. We have no report of complaints about these institutions. As essential principles
of government and administration, the Prophet bequeathed trust, justice and effectiveness as
well the combination of authority with responsibility.

It was Omer, Second Caliph of Islam, who created the Institution of Mohtasib. He enjoyed
complete independence and functioned within the framework of an institution called ‘hisbah’.
Its role was to ensure the observance of religious principles in daily life. In Egypt this
institution existed up to the middle of the 19th century. An interesting fact in this context is
that the institution of ‘hisbah’ and its functions was also adopted by the Cursaders in
Jerusalem; they even used the even used the Arab world ‘Mohtasib’ although they changed it
into ‘Mathessep’.

Hazrat Ali, forth Caliph of Islam, in his famous epistle to Malik Ashtar, the Governor of
Egypt, stressed the very fact in the following manner: –

“Out of your hours of work fix a time for complaints and for those who want to approach you
with their grievances. For this purpose you must arrange public audience for them, and during
this audience, for the sake of God, treat them with kindness, courtesy and respect. Do not let
your army and police be in the audience hall at such a time so that those who have grievances
against your government may speak to you freely, unreservedly and without fear. All this is a
necessary factor for your rule because I have often heard the Prophet (Peace of God be upon
him) saying: “that nation or government cannot achieve salvation where the rights of the
depressed, destitute and suppressed are not guarded, and where mighty and powerful persons
are not forced to accede to these rights”.

During the Abbasids era (750-847), complaint handling agencies called “Diwan-al-Mazalim”
were established. Its function was to examine complaints brought by the public against
government officials. The institution was headed by a senior judge responsible for examining
the grievances.

The genesis of the institution may also be found in Sparta and Athens, where the office of the
“Eflore” and the “Euthynoi”, respectively controlled the activities performed by the officials
of government and municipal actions. The Romans installed an officer called the ‘tribune’ to
protect the interests and rights of the plebeians from the patricians. In China, during the Yu
and Sun dynasty, an officer called ‘Yuan’ was appointed to report the voice of the people to
the Emperor and to announce the Emperor’s decrees to the people
The Persian Empire, King Cyrus charged the “O Olho de Rei” with the duty to supervise the
activity of all his officials. During the XV century, the Council of the Ten, in Venice, had the
mandate to control the bureaucratic excesses committed in the city.

During his exile in Turkey, the King of Sweden, Charles XII, observed the working of
Dewan-i-Mazalim. On restoration, the King ordered to establish a similar institution in
Sweden. In Sweden the office was institutionalized in 1809 with the title
of Justitieombudsman.

According to Ibrahim al-Wahabof course one could not draw definite conclusion regarding
the origin of any institution anywhere …. But being aware of the history of complaint
handling in the Islamic law system and the fact that during the time of King Charles XII in
Turkey this system was existing, the influence seems to be evident”.

‘Ombudsman’ is an old Swedish word that has been used for centuries to describe a person
who represents or protects the interests of another. The word was originally derived from
medieval Germanic tribes where the term was applied to a third party whose task was to
collect fines from remorseful culprit families and give them to the aggrieved families of
victims (Kircheiner, 1983). The part word, ‘man’ is taken directly from Swedish (the old
Norse word was ‘umbodhsmadr’) and does not necessarily mean that the holder be of the
male gender. At present, there are several women, who are part of ombudsman community
worldwide.

In Sweden, the ombudsman office was established by the Parliament to assist it in its dealings
with the Executive and the Judiciary. Apparently, it may be considered that the Riksdag
(Swedish Parliament) felt inability to satisfactorily exercise its oversight on the activities of
other branches of government.

In order to carry out its role as representative of the people, the Swedish Parliament felt that it
needed an officer who could actively deal with complaints made by the public about action
being taken by Executive and the Judiciary. In addition, the following key elements of the
Swedish form of government also led to the establishment of ombudsman office: –

There is no concept of Ministerial responsibility such as exists in Parliaments based on the

Westminster system, where the minister is chosen from the members of the Parliament.

In Sweden the Judiciary is a career service that is modelled much more closely on a
traditional executive style of decision maker and which therefore lends itself to some of the
pressures that exist in any career and promotion based bureaucracy.
Characteristics and Objectives of Ombudsman Institution

- Established as separate entity that is functionally autonomous.

- Operationally independent of both the legislature and the executive.
- Ombudsman is a legally established governmental official.
- A monitoring specialist.
- Administrative expert and professional.
- Non-partisan.
- Normatively universalistic.
- Client-centred, but not anti-administration.
- Popularly accessible and visible.
- High status institutions
- Have extensive resources to perform his mission.

Jurisdiction of the Ombudsman

The operational mode of the ombudsman varies greatly according to the activity and
environment. However, in essence, there are two models: –

Reactive ombudsman who waits for complaints and acts on what has been brought forward.
In Britain, for example, ombudsmen tend to be reactive offices that can only respond to
complaints or grievances, the last port of call in a formal complaints procedure.

Proactive ombudsman who seeks out matters of concern, inspects and initiates investigations.
In Scandinavia, an ombudsman may initiate action and has an ongoing inspection role, such
as the Public Justice Ombudsman who keeps a watchdog eye on public administration and
tackles action to ensure acceptable quality and standards are maintained.

Democracy, Public Administration and Ombudsman:

There is an inseparable relation between democracy and ombudsman. The central idea of
democracy means people’s rights and freedom shall be vindicated and protected and their
legitimate grievances shall be removed. When in 1809 the Swedish government created the
institution of Ombudsman the purpose was to protect rights and privileges.

Since the creation of Ombudsman the concept of democracy and related ideas have changed
enormously —so also has increased the importance of Ombudsman. Today’s is a welfare
state and this concept has imposed additional responsibility upon the state. Now the question
is who will supervise whether the state is performing its duties, the benefits of state activities
have reached the target areas and, finally, if the people have any grievances.
In any democracy the following ideas are given predominance—rule of law equality before
law, and equal protection of law. If these are neglected or are not properly maintained the
idea or value of democracy will face a big question mark. Another idea of liberal democracy
is attainment of justice —especially redistributive justice.

The state authority adopts a policy, the administrative organ is advised to execute the policy.
If the public administration fails to discharge its responsibility men will be deprived of the
benefits of the policy. Even in democracy the ordinary people have no control over the
government or public administration.

Naturally, ordinary people shall be the victim of the negligence of public administration or
wrong policy of the government. This situation suggests that there shall exist an institution in
any democracy whose chief function shall be to oversee whether proper policies are adopted
and more important, whether the adopted policy is executed properly. Here lies the
importance of Ombudsman.

Criteria Used by Ombudsman to Judge the Official Actions

Ombudsman Offices around the world receive a bulk of complaints each year. Out of these, a
large number of complaints are rejected on the ground that they fall outside the ombudsman
jurisdiction. Ombudsmen have to operate within the jurisdiction set out in their legislation.

Common criteria for accepting or rejecting complaints largely include the following
questions:

- Is the complaint within the Ombudsman’s jurisdiction at all? (A surprising number are
not.)
- Has the person complaining exhausted the other remedies available to them? (The
Ombudsman should be a last resort, not a first port of call.) If not, is it reasonable to
expect them to have done so?
- Has the complainant sufficient personal interest in the subject matter of the
complaint?
- Is the matter already before the courts? If so, is it appropriate for the Ombudsman to
become involved?
- On the face of the complaint, does it appear that the person complaining is not acting
in good faith?

Ombudsmen apply various criteria for making judgment whether a particular conduct is
proper or improper. Some of the important criteria are: –

Whether a particular government action concords or conflicts with statutes and principles,
Ideally, an Ombudsman approaches the action broadly and reviews it both in the light of the
provisions of the written law, and in the light of unwritten legal principles, as well as, against
the standards for good governance.
Investigations of the action in view of the written law include such areas relating to human
and constitutional rights, definitions of competence, and provisions governing from
procedure and substance.

Investigation of the action in view of the unwritten legal principles (developed in case law
and legal doctrine) are equally relevant to the lawfulness of government conduct, and include
the principles of: equal treatment for equal cases; reasonableness; proportionality between
means and end; legal certainty and of legitimate expectations; the requirement to provide
reasons for decisions; and, of certain duties of care.

An Ombudsman also uses standards or guidelines for good governance which contribute to
the decency of the way the executive authorities act. The standards can be summed up as the
imposition of a broad duty of care. These are manifested in certain accepted standards for
administrative processes and the conduct of public servants in relation to the public. They
include the requirement to act without undue delay; to supply the individual with relevant
information; to treat people fairly and respectfully; and, to be unbiased and helpful.

Finally, the Ombudsman sets standards for the government organization – such as those of
coordination, monitoring of progress, protection of the individual’s privacy, and accessibility
of the authorities.

Nature of Ombudsman:

ombudsmen is a Swedish word appointed by the legislature to deal with the complaints raised
by public or any organisation. It is an institution to protect individuals from the injustice done
to them by any of the three main organs of the government. It is independent of the three
organs of state. In other words, it is an independent body and, once instituted, neither of the
organs of government has any control over it. Every man has free access to it.

This is a great advantage and the citizen can get prompt relief or remedy to his grievances.
The Ombudsman has power to collect facts taking initiative and can decide the matter. On the
other hand, the courts cannot do this. If the issue or problem is placed before it, then only can
it take up the case. This special role of the Ombudsman is of great importance and a critic
remembering this writes “The Ombudsman is primarily the people’s investigator, guide and
defender”.

We have elaborately analysed the accountability of public administration to citizens and

various aspects of participatory public administration. But in conclusion we have seen that
these are only conceptualisation of certain ideas and principles. In reality these have hardly
any importance. Viewed from this perspective we want to say that the system of ombudsman
possesses immense importance. It is an important mile-stone in the vast field of citizen-
administration relationship.
Experts are of opinion that the institution of Ombudsman is nothing new. In ancient Rome
there was an institution known as “Tribune of the People”. There was the existence of
ombudsman—like institutions in ancient times. The ombudsman was an extra-constitutional
authority to supervise the proper working of the constitution.

Powers and Functions:

(1) An important function of Ombudsman is to protect the rights and freedoms of citizens and
needless to say that primarily for this purpose the post of ombudsman was instituted. In
nineteenth and twentieth century’s there were autocracies in many European states and even
the bureaucracies were indifferent to people’s freedom. This appalling situation inspired
freedom-loving men to find out a solution and ombudsman was the consequence.

(2) In the Scandinavian countries the ombudsman has another function. The ombudsman
shall have the power to supervise the general civil administration. On this point the duty of
ombudsman is closely connected with the public administration. Because the protection of
freedom, execution of policies and other fall within the jurisdiction of public administration
and whether these are properly performed or not that requires to be examined-and
ombudsman does this job.

A common experience is that people’s rights and freedoms are not properly protected and
public administration does not always take care of it. In this regard the Ombudsman has a lot
of duties to perform. In many states the problems of common men are neglected and the
general administration does not always rise to the occasion. In a class society the public
administration is controlled by the economically powerful class and the grievances of
common men generally go unheeded. In such cases Ombudsman performs yeoman service

(3) In many states Ombudsman or institution like this supervises the general administration. It
is also called general surveillance of the functioning of the government. This is a very
important function. Particularly in the Scandinavian states the Ombudsman or person of this
type performs this function. In these countries the Ombudsman has been found to undertake
tour for inspection.

(4) In some countries the Ombudsman enjoys enormous power. For examples in Sweden the
Ombudsman has been empowered to investigate the cases of corruption (in any form) not
only against the government officers but also against the judges of the highest court! But the
supervising power of Ombudsman over the judges does not erode the independence of the
judiciary. The judges are prosecuted or fined for corruption, negligence of duties, or delay in
delivering judgement.

(5) In UK the Parliamentary Commissioner (British type of Ombudsman) also acts as a

Health Commissioner. In 1974 the British parliament enacted a law to enhance the
jurisdiction of Parliamentary Commissioner to the level of local government. The local
councillors can lodge complaints against the local body and can seek redressal of grievances.
(6) An important function of Ombudsman is the exercise of discretionary powers. The
discretionary powers are really vast and how to use these powers depend upon the person
concerned. Discretionary powers include corruption, negligence, inefficiency, misbehaviour
etc.

Criticism on Ombudsman Scheme

The most common criticism of the ombudsman system is that the function is not generally
well understood. There is relatively limited documentation and information about their work,
often confusion and uncertainty about their role, and with the proliferation of ombudsman
offices in different sectors, the confusion can be exacerbated.

In spite of the key characteristic of accessibility, ombudsman offices are frequently noted for
their inaccessibility. Few citizens are aware of the different ombudsman schemes, how to
reach them and how to process a grievance. Inaccessibility is the chief reason why
ombudsman offices tend to be under-utilised, especially by the most disadvantaged who are
less likely to know of the existence of ombudsman and have more difficulty in registering
complaints or grievances.

It seems that many ombudsman schemes, particularly in Britain, are hidden by bureaucracy
and formality and lack a human face. The question of visibility is linked to more general
criticisms of the operational mode of the ombudsman as too reactive, waiting for complaints
rather than taking the office to the public or initiating investigations.

The ombudsman office is also criticized for the fact that its effectiveness tends to depend
upon the character and personality of the ombudsman officer(s) themselves rather than the
system as a whole.

Regardless of their organizational framework they are a highly personalized institution and
success demands an individual or team who are perceived as independent and impartial, with
relevant qualifications and in-depth knowledge of the sector, and can command respect and
trust from all parties. Of course, such individuals are hard to find.

Since the ombudsman’s powers lie essentially in recommendation there is a genuine concern
that the ombudsman lacks ‘teeth’. For instance, the annual report (for many ombudsmen the
only public document issued) is often considered an inadequate instrument for influencing
administration procedures and practice, informing mass media and educating the public.

Moreover, the ombudsman is generally powerless to change or reverse decisions. In fact,

some believe that the ombudsman’s powers as critic and reformer must be strengthened to
influence changes in legislation and policy and not just administrative procedure. The
ombudsman should be concerned not merely with laws or codes as they stand, but also as
they might be.
e. Lokpal and Lokayukta Act and Other Anti Corruption Bodies and their
Administrative Procedures

Lokpal- An Indian Attempt at Establishing an Ombudsman System

A Lokpal is a proposed ombudsman in India. The word is derived from the Sanskrit word
“lok” (people) and “pala” (protector/caretaker), or “caretaker of people.”The concept of a
constitutional ombudsman was first proposed in parliament by Law Minister Ashoke Kumar
Sen in the early 1960s.

The first Jan Lokpal Bill was proposed by Shanti Bhushan in 1968 and passed in the 4th Lok
Sabha in 1969, but did not pass through the Rajya Sabha. Subsequently, ‘lokpal bills’ were
introduced in 1971, 1977, 1985, again by Ashoke Kumar Sen, while serving as Law Minister
in the Rajiv Gandhi cabinet, and again in 1989, 1996, 1998, 2001, 2005 and in 2008, yet they
were never passed. Forty-two years after its first introduction, the Lokpal Bill is still not
enacted in India.

The Lokpal Bill provides for the filing, with the ombudsman, of complaints of corruption
against the prime minister, other ministers, and MPs. The Administrative Reforms
Commission (ARC) recommended the enacting of the Office of a Lokpal, convinced that
such an institution was justified, not only for removing the sense of injustice from the minds
of citizens, but also to instil public confidence in the efficiency of the administrative
machinery.

Following this, the Lokpal Bill was, for the first time, presented during the fourth Lok
Sabha in 1968, and was passed there in 1969. However, while it was pending in the Rajya
Sabha, the Lok Sabha was dissolved, and thus the bill was not passed.

The bill was revived several times in subsequent years, including in 2011. Each time, after
the bill was introduced to the House, it was referred to a committee for improvements, to a
joint committee of parliament, or to a departmental standing committee of the Home
Ministry.

Before the government could take a final stand on the issue, the house was dissolved again.
Several conspicuous flaws were found in the 2008 draft of the Lokpal Bill. The basic idea of
a lokpal is borrowed from the Office of the Ombudsman, which has the Administrative
Reforms Committee of a lokpal at the Centre, and lokayuktas in the states.

Jan Lokpal Bill

The Jan Lokpal Bill or the Citizen’s Ombudsman Bill is a draft anti-corruption bill drawn up
by prominent civil society activists, seeking the appointment of a Jan Lokpal, an independent
body that would investigate corruption cases, complete the investigation within one year and
conduct trials for the case within the next year.
Drafted by Justice Santosh Hegde ,a former Supreme Court Judge and former Lokayukta of
Karnataka, Prashant Bhushan, a Supreme Court Lawyer and Arvind Kejriwal, an RTI activist,
the draft Bill envisaged a system in which a corrupt person found guilty would go to jail
within two years of the complaint being made and his ill-gotten wealth confiscated. It also
sought power for the Jan Lokpal to prosecute politicians and bureaucrats without requiring
government permission.

Retired IPS officer Kiran Bedi and others, like Anna Hazare, Swami Agnivesh, Sri Sri Ravi
Shankar, and Mallika Sarabhai are also members of the movement, called India Against
Corruption. Its website describes the movement as “an expression of collective anger of
people of India against corruption.”

It goes on to state: “We have all come together to force/request/persuade/pressurize the

Government to enact the Jan Lokpal Bill. We feel that if this Bill were enacted it would
create an effective deterrence against corruption.”

Features of the Jan Lokpal Bill:

- An institution called Lokpal at the centre and Lokayukta in each state will be set up.
- Like the Supreme Court and Election Commission, they will be completely
independent of governments. No minister or bureaucrat will be able to influence their
investigations.
- Cases against corrupt people will not linger on for years anymore: investigations in
any case will have to be completed in one year. Trial should be completed in the next
one year, so that the corrupt politician, officer or judge is sent to jail within two years.
- The loss that a corrupt person caused to the government will be recovered at the time
of conviction.
- If the work of any citizen is not done in a prescribed time, in any government office,
Lokpal will impose a financial penalty on the guilty officers, which will be given as
compensation to the complainant.
- So, one could approach Lokpal if your ration card or passport or voter card had not
been made, or if the police are not registering your case, or if any other work is not
being done within the prescribed time. Lokpal will have to get it done in a month’s
time. You could also report any case of corruption to Lokpal, like rations being
siphoned off, poor quality roads being constructed or panchayat funds being siphoned
off.
- But won’t the government appoint corrupt and weak people as Lokpal members? That
won’t be possible because its members will be selected by judges, citizens and
constitutional authorities, not by politicians, through a completely transparent and
participatory process.
- The entire functioning of Lokpal/ Lokayukta will be completely transparent. Any
complaint against any officer of Lokpal will be investigated and the officer dismissed
within two months.
 - CVC, the departmental vigilance and anti-corruption branch of the CBI, will be
merged into Lokpal. Lokpal will have complete powers and machinery to
independently investigate and prosecute any officer, judge or politician.
- It will be the duty of the Lokpal to provide protection to those who are being
victimized for raising their voice against corruption.
- Fundamental duties
o To judge the cases and make jurisdictions against corruption cases with the Lokpal.
o To judge whether a case is genuine or whether a fake complaint has been made.
o To potentially impose fines on a fake complaint, or even a short span of jail time, if
the case is not proved to be legally true.

Criticisms of the Jan Lokpal Bill

A Naïve Approach-The bill has been criticised as being naïve in its approach to combating
corruption. According to Pratap Bhanu Mehta, President of the Centre for Policy Research
Delhi, the bill “is premised on an institutional imagination that is at best naïve; at worst
subversive of representative democracy”. The very concept of a Lokpal concept has received
criticism from Human Resource Development minister that it will lack accountability, be
oppressive and undemocratic.

Extra Constitutional- The pro-bill activist rejects the claim of Lokpal being extra-
constitutional with the explanation that the body will only investigate corruption offences and
submit a charge sheet which would then tried and prosecuted through trial courts and higher
courts, and that other bodies with equivalent powers in other matters exist. The proposed bill
also lists clear provisions for the Supreme Court to abolish the Lokpal.

Despite these clarifications, critics feel that the exact judicial powers of Lokpal are rather
unclear in comparison with its investigative powers. The bill requires “…members of Lokpal
and the officers in investigation wing of Lokpal shall be deemed to be police officers”.
Although some supporters have denied any judicial powers of Lokpal, the government and
some critics have recognised Lokpal to have quasi-judicial powers.

The bill also states that “Lokpal shall have, and exercise the same jurisdiction powers and
authority in respect of contempt of itself as a High court has and may exercise, and, for this
purpose, the provisions of the Contempt of Courts Act, 1971 (Central Act 70 of 1971) shall
have the effect subject to the modification that the references therein to the High Court shall
be construed as including a reference to the Lokpal.”

Review of proceedings and decisions by Lokpal is prevented in the bill by the statement
“…no proceedings or decision of the Lokpal shall be liable to be challenged, reviewed,
quashed or called in question in any court of ordinary Civil Jurisdiction.”.
As a result, how the trials will be conducted is unclear in the bill, although the bill outlines
requiring judges for special courts, presumably to conduct trial that should be completed
within one year. The critics hence express concern that, without judicial review, Lokpal could
potentially become an extra-constitutional body with investigative and judicial powers whose
decisions cannot be reviewed in regular courts.

Scope- The matter of whether the Indian Prime Minister and higher judiciary should or
should not be prosecutable by the Lokpal remains as one of the major issues of dispute.
Anna’s own nominee for co-chairing the joint panel Justice Verma, the former Chief Justice
of the Supreme Court, has expressed his constitutional objections for including the Prime
Minister and higher judiciary under Lokpal. According to him, “this would foul with the
basic structure of the constitution”.

Criticism from the CBI Director- The CBI Director, in a presentation before the Standing
Committee of the Parliament, has strongly argued against the vivisection of the CBI and
merger of its anticorruption wing with the Lokpal, noting that this would seriously cripple the
core functioning of the CBI and reduce it to irrelevance.

An organization built over last 60 years comprising competent professionals should not be
subsumed under Lokpal. CBI officers concede that in some sensitive political cases there is
of course interference from the government, but in respect of an overwhelming majority of
cases CBI functions, unfettered and uninfluenced by extraneous considerations. For this
reason there is an ever increasing demand for CBI investigation from all-over the country in
respect of important cases.

Lokayukta Concept

The first Administrative Reforms Commission headed by Mr. Morarjee Desai recommended
for Sweden based Ombudsmen type of institution. Accordingly the centre can have Lokpal
and states can have Lokayukta.

Though the institution of Lokayukta was introduced for the first time in Odisha but it was
not able to implement it. Maharashtra was the first state to implement in 1973. It investigates
the allegation against officials like corruption, favouritism, nepotism, injustice and other
grievances.

It does not include Judges, Speaker, Chairman, Accountant General, Chairman and Members
of State Public Service Commission, Judges of Civil and criminal court. The Lokayukta
receives the petition from the public and conducts inquiries. It has power to raid on the
houses and offices of corrupt official.

Lokayukta are appointed for 5 years or till attaining age of 70 years.

His salary is equivalent to Chief Justice of India and salary of its members is equivalent to
Judge of Supreme Court.

They can be removed from the office by the governor, on the charge of misbehaviour or
incapacity proved in the state legislature by 2/3rd majority.

Functions of Lokayukta

Matters which may be investigated by the Lok Ayukta –Subject to the provisions of the Act,
the Lok Ayukta may investigate any action which is taken by or with the general or specific
approval of chief minister, a minister, a member of the State legislature, the Chairman, Vice-
Chairman or a member of an authority, Board or a committee etc. In any case where a
complaint involving a grievance or an allegation is made in respect of such action.

Lokayukta may investigate any action taken by the public servant if it is referred by the state
government.

In the process of investigation, the Lok Ayukta deals with the issue of search warrant. For the
said purpose, they have all the powers of a civil court which trying a suit under CPC, 1908 in
respect of summoning and enforcing the attendance of any person and examining him on
oath, production of any document, received evidence of affidavits, getting any public record
or copy from any court office etc.

The Lok Ayukta after investigation shall make a declaration with regard to the governor or
chief minister of the state to the vacation of office of the said official.

Lokayukta is an anti-corruption ombudsman organised at the state-level: The Administrative

Reforms Commission(ARC) headed by Morarji Desai submitted a special interim report on
"Problems of Redressal of Citizen's Grievances' in 1966. In this report, the ARC
recommended the setting up of two special authorities designated as 'Lokpal' and 'Lokayukta'
for the redressal of citizens' grievances.

Appointments of Lokayukta

Lokayukta shall be appointed by the Governor of the state in consultation with the Chief
Justice of the High Court, the Leader of the Opposition in the Legislative Assembly.

Qualifications of Lokayukta

Chief Justice (retired) of any high court in India, or a judge of a high court for seven years.
Lokayukta shall not be a member of Parliament or a member of the Legislative of any state or
Union Territory and shall not hold any other office of profit and shall not be connected with
any political party or be carrying on any business or practice any profession. The office has a
term of five years.
Powers:

The LokAyukta helps people bring corruption to the fore mainly amongst the politicians and
officers in the government service. It is to be noted that the LokAyukta conducts raids. But
surprisingly, it does not have binding powers to punish anyone but only recommend
punishment.

Reduction in rank, compulsory retirement, removal from office, stoppage of annual

increments and censure are some of the frequently seen recommendations given by the
Lokayukta to the government. The state can either accept the recommendations or modify
them. The public servant concerned can challenge the decision in the state high courts or
specialised tribunals.

Procedures

Written complaints are required from complainants by the Lokayukta office for investigation.
If the complaint takes the form of an allegation, the office insists on the filing of an affidavit.
Most of the complainants received turned out to be “anonymous, pseudonymous, and trivial
in nature or not made on prescribed forms or were submitted without affidavits

. “Many did not pursue their allegations when asked to file them in an affidavit format.
Lokayuktas can either investigate the complaints using their suo motu powers under the state
Act concerned or forward them to the heads of the departments under the scanner for action
or act as a mediator between the citizen and the government servant against whom the
complaint is made.

Major shortcomings of Lokayukthas:

It’s a one man army with limited resources and powers, and the success of the entire
mechanism depends solely on the personal qualities of the individual Lokayukta

Non uniformity of Acts in states

Many areas of administration are outside the jurisdiction of Lokayukta

Some states have prescribed fee for lodging complaints, for example Madhya Pradesh is one
of them.

Non-cooperative attitude of authorities and lack of independent investigating authority

Orissa was the first state to pass the Ombudsman legislation in 1970 and also the first to
abolish it in 1993.
Other Anti corruption Bodies

I. Central Vigilance Commission

The Central Vigilance Commission (CVC) was established in 1964, as an apex body for
exercising general superintendence and control over vigilance administration, through
the Government of India Resolution of 11.2.1964. The main mandate of the
Commission was based on the report of the Committee on Prevention of Corruption,
popularly known as the Santhanam Committee.

Before finalising its report, the Santhanam Committee submitted its interim
recommendations to the government in two parts. The first recommended the
establishment of the Central Vigilance Commission. The second suggested conferring
powers on the Commission, similar to those under Sections 4 and 5 of the Commission
of Enquiry Act, 1952 so that it could undertake an inquiry into transactions where
public servants were suspected of having acted improperly or in a corrupt manner.

The Committee envisaged a wide role for the CVC. It was not sat isfied merely with the
existing arrangements intended to investigate and punish corruption and misuse of
authority by individual officers. “While this is indispensable, the Committee feels that
the Central Vigilance organisation should be expanded so as to deal with complaints of
failure of justice or oppression or abuse of authority suffered by the citizens though it
may be difficult to attribute them to any particular official or officials.”

The Committee therefore recommended that the CVC should be vest ed with jurisdiction
and power, inter alia, to “inquire into and investigate:

(a) Complaints against acts or omissions, decisions or recommendation, or

administrative procedures or practices on the grounds that they are:

(i) wrong or contrary to law;

(ii) unreasonable, unjust, oppressive or improperly discriminatory;

(iii) in accordance with a rule of law or a provision of any enactment or a practice that
is or may be unreasonable, unjust, oppressive or improperly discriminatory; or

(iv) based wholly or partly on a mistake of law or fact.”

The Government of India did not accept this recommendation. The Resolution with
which the CVC was set up did not have this clause in its charter of functions. The
reasoning for its exclusion was explained in these words: “The importance and urgency
of providing machinery for looking into grievances of citizens against the
administration and for ensuring just and fair exercise of administrative power is fully
recognised.
But it is considered that the problem is big enough to require a separate agency or
machinery and that apart from this the Central Vigilance Commission would be
overburdened if this responsibility were to be placed upon it, and the Commission might
as a result be less effective in dealing with the problem of corruption.”

The recommendation made by the Committee in the second part8 that the CVC should
be given through suitable legislation certain powers to enable it to undertake enquiries
remained unimplemented till 2003 when the CVC Act was legislated. Though these
powers are now available with the Commission, they are not used by it

The Resolution of 1964 had two significant provisions.

♦ One, it defined the charter of the CVC. Its main function was to undertake an enquiry
or to cause an enquiry or investigation to be made into any complain t of “corruption,
misconduct, lack of integrity, or other kinds of malpractices or misdemeanour on the
part of a public servant including members of the All India Services even if such
members are for the time being serving in connection with the affairs o f a state
government.”

♦ The other was to maintain that though the Commission will be an attached office of
the Ministry of Home Affairs, “in the exercise of its powers and functions it will not be
subordinate to any Ministry/Department and will have the same measure of
independence and autonomy as the Union Public Service Commission.”

The Hawala Case From 1964 to 1993, for nearly three decades, the CVC rolled along
without making any visible dent on the problem of corruption in the country. A very
important milestone in its history occurred when the Supreme Court pronounced its
judgement in what is popularly known as the Hawala Case.

The gist of allegations made in the writ petitions filed on 4 October 1993 was that: „
financial support was given to terrorists by clandestine and illegal means using tainted
funds obtained through hawala transactions; the CBI and other agencies failed to
investigate these properly and prosecute those who were involved in committing the
offences; and this was done deliberately to protect persons who were influential and
powerful.

SC Judgment and CVC

In this judgment court declared the Single Directive null and void and gave directions to
establish institutional and other arrangements aimed at insulating the CBI and the
Directorate of Enforcement of the Ministry of Finance from outside influences.
1. The Central Vigilance Commission (CVC) shall be given statutory status.

2. Selection for the post of Central Vigilance Commissioner shall be made by a

Committee comprising the Prime Minister, Home Minister and the Leader of the
Opposition from a panel of outstanding civil servants and others with impeccable
integrity, to be furnished by the Cabinet Secretary. The appointment shall be made by
the President on the basis of the recommendations made by the Committee. This shall
be done immediately.

3. The CVC shall be responsible for the efficient functioning of the CBI. While
Government shall remain answerable for the CBI's functioning, to introduce visible
objectivity in the mechanism to be established for over viewing the CBI's working, the
CVC shall be entrusted with the responsibility of superintendence over the CBI's
functioning. The CBI shall report to the CVC about cases taken up by it for
investigation; progress of investigation; cases in which charge-sheets are filed and their
progress. The CVC shall review the progress of all cases moved by the CBI for sanction
of prosecution of public servants which are pending with the competent authorities,
especially those in which sanction has been delayed or refused.

4. The Central Government shall take all measures necessary to ensure that the CBI
functions effectively and efficiently and is viewed as a non-partisan agency.

5. The CVC shall have a separate section in its Annual Report on the CBI's
functioning after the supervisory function is transferred to it.

6. Recommendations for appointment of the Director, CBI shall be made by a

Committee headed by the Central Vigilance Commissioner with the Home Secretary
and Secretary (Personnel) as members. The views of the incumbent Director shall be
considered by the Committee for making the best choice. The Committee shall draw up
a panel of IPS officers on the basis of their seniority, integrity, experience in
investigation and anti-corruption work. The final selection shall be made by the
Appointments Committee of the Cabinet (ACC) from the panel recommended by the
Selection Committee. If none among the panel is found suitable, the reasons thereof
shall be recorded and the Committee asked to draw up a fresh panel.

7. The Director, CBI shall have a minimum tenure of two years, regardless of the date
of his superannuation. This would ensure that an officer suitable in all respec ts is not
ignored merely because he has less than two years to superannuate fro m the date of his
appointment.

8. The transfer of an incumbent Director, CBI in an extraordinary situation, including

the need for him to take up a more important assignment, should have the approval of
the Selection Committee.
9. The Director, CBI shall have full freedom for allocation of work within the agency as
also for constituting teams for investigations. Any change made by the Director, CBI in
the Head of an investigative team should be for cogent reasons and for improvement in
investigation, the reasons being recorded.

10. Selection/ extension of tenure of officers up to the level of Joint Director (JD) shall
be decided by a Board comprising the Central Vigilance Commissioner, Home
Secretary and Secretary (Personnel) with the Director, CBI providing the necessary
inputs. The extension of tenure or premature repatriation of officers up to the level of
Joint Director shall be with final approval of this Board. Only cases pertaining to the
appointment or extension of tenure of officers of the rank of Joint Director or above
shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.

11. Proposals for improvement of infrastructure, methods of investigation, etc. should

be decided urgently. In order to strengthen CBI's in-house expertise, professionals from
the Revenue, Banking and Security sectors should be inducted into the CBI.

12. The CBI Manual based on statutory provisions of the CrPC provides ess ential
guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously
to the provisions in the Manual in relation to its investigative functions, like raids,
seizure and arrests. Any deviation from the established procedure should be viewed
seriously and severe disciplinary action taken against the officials concerned.

13. The Director, CBI shall be responsible for ensuring the filing of charge -sheets in
courts within the stipulated time-limits, and the matter should be kept under constant
review by the Director, CBI.

14. A document on CBI's functioning should be published within three months to

provide the general public with a feedback on investigations and information for redress
of genuine grievances in a manner which does not compromise with the operational
requirements of the CBI.

15. Time-limit of three months for grant of sanction for prosecution must be strictly
adhered to. However, additional time of one month may be allowed where consultation
is required with the Attorney General (ersonAG) or any other law officer in the AG's
office. The Director, CBI should conduct regular appraisal of panel to prevent
corruption and/ or inefficiency in the agency.

16. Directions issued by the Court on the selection and tenure of the Head of the
Enforcement Directorate of the Ministry of Finance
Government Response

the government hurriedly promulgated the Central Vigilance Commission Ordinance,

1998 validifying Single Directive. The following main amendments were made in the
principal Ordinance:

♦ The number of Vigilance Commissioners was reduced from four to three.

♦ The entry making the Secretary to the Government of India in charge of the Ministry
of Personnel an ex-officio member was deleted. „

♦ Selection of the Chairperson and members of the Commission would be done from
civil servants and those “who have held office or are holding office in a corporation
established by or under any Central Act or a Government company owned or controlled
by the Central Government and persons who have expertise and experience in finance
including insurance and banking, law, vigilance and investigations.” „

♦ The Commission would no longer be authorised or required to grant approval to

conduct investigations into allegations of corruption under the Prevention of Corruption
Act, 1988 against certain categories of persons.

The Central Vigilance Commission Act, 2003:

In 1998 the Government introduced the CVC Bill in the Lok Sabha in order to replace
the Ordinance, though it was not successful. The Bill was re-introduced in 1999 and
remained with the Parliament till September 2003, when it became an Act after being
duly passed in both the Houses of Parliament and with the President ’s assent. The
provisions of the Act include inquiries into offences alleged to have been committed by
certain categories of public servants of the Central Government; corporations
established by or under any central Act; government companies; societies; and local
authorities owned or controlled by the Central Government; and fo r matters connected
therewith or incidental thereto.

Important Features of the CVC Act, 2003

♦ The Commission shall consist of a Central Vigilance Commissioner (Chairperson) and

not more than two Vigilance Commissioners (members).

♦ The Central Vigilance Commissioner and the Vigilance Commissioners shall be

appointed by the President on recommendation of a Committee consisting of the Prime
Minister (Chairperson), the Minister of Home Affairs (Member) and the Leader of the
Opposition in the House of the People (Member).
♦ The term of office of the Central Vigilance Commissioner and the Vigilance
Commissioners would be four years from the date on which they enter their office or till
they attain the age of 65 years, whichever is earlier.

♦ The Commission, while conducting the inquiry, shall have all the powers of a Civil
Court with respect to certain aspects. Commission’s Jurisdiction under CVC Act

♦ Members of All India Services serving in connection with the affairs of the Union and
gazetted officers of the Central Government.

♦ Board level appointees and other senior officers up to two grades below the Board
level, in the Public Sector Undertakings of the Central Government;

♦ Officers of the rank of Scale V and above in the Public Sector Banks; • Office rs of the
rank of Assistant Manager and above in the Insurance Sector (covered by LIC and GIC
and four non-life insurance companies in the Public sector); and central Government.

♦ Officers drawing basic pay of Rs. 8700/- (Pre-revised) per month and above in
autonomous bodies/local authorities or societies owned or controlled by the Central

Functions and powers of the Central Vigilance Commission Under the Central
Vigilance Commission Act, 2003

♦ Exercise superintendence over the functioning of the Delhi Special Police

Establishment (CBI) insofar as it relates to the investigation of offences under the
Prevention of Corruption Act, 1988; or an offence under the Cr.PC for certain
categories of public servants – section 8(1)(a);

♦ Give directions to the Delhi Special Police Establishment (CBI) for superintendence
insofar as it relates to the investigation of offences under the Prevention of Corruptio n
Act, 1988 – section 8(1)(b);

♦ To inquire or cause an inquiry or investigation to be made on a reference by the

Central Government – section 8(1)(c);

♦ To inquire or cause an inquiry or investigation to be made into any complaint received

against any official belonging to such category of officials specified in sub-section 2 of
Section 8 of the CVC Act, 2003 – section 8(1)(d);

♦ Review the progress of investigations conducted by the DSPE into offences alleged to
have been committed under the Prevention of Corruption Act, 1988 or an offence under
the Cr.PC – section (8)(1)(e);
♦ Review the progress of the applications pending with the competent authorities for
sanction of prosecution under the Prevention of Corruption Act, 1988 – section 8(1)(f);

♦ Tender advice to the Central Government and its organizations on such matters as
may be referred to it by them – section 8(1) (g);

♦ Exercise superintendence over the vigilance administrations of the various Central

Government Ministries, Departments and Organizations of the Central Government –
section 8(1)(h);

♦ Shall have all the powers of a Civil court while conducting any inquiry – section 11;

♦ Respond to Central Government on mandatory consultation with the Commission

before making any rules or regulations governing the vigilance or disciplinary matters
relating to the persons appointed to the public services and posts in connection with the
affairs of the Union or to members of the All India Services – section 19.

♦ The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance
Commissioners (Members) of the Committee, on whose recommendations, the Central
Government appoints the Director of Enforcement – section 25.

♦ The Committee concerned with the appointment of the Director of Enforcement is

also empowered to recommend, after consultation with the Director of Enforcement
appointment of officers to the posts of the level of Deputy Director and above in the
Directorate of Enforcement – section 25;

♦ The Central Vigilance Commissioner (CVC) is also the Chairperson and the Vigilance
Commissioners (Members) of the Committee empowered to recommend after
consultation with Director (CBI), appointment of officers to the post of the level of SP
and above except Director and also recommend the extension or curtailment of tenure of
such officers in the DSPE (CBI) - Section 26 and Section 4C of DSPE Act, 1946.

Removal of Central Vigilance Commissioner and Vigilance Commissioner. -

1. Subject to the provisions of sub-section (3), the Central Vigilance Commissioner or

any Vigilance Commissioner shall be removed from his office only by order of the
President on the ground of proved misbehaviour or incapacity after the Supreme Court,
on a reference made to it by the President, has, on inquiry, reported that the Central
Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought on
such ground be removed.
2. The President may suspend from office, and if deem necessary prohibit also from
attending the office during inquiry, the Central Vigilance Commissioner or any
Vigilance Commissioner in respect of whom a reference has been made to the Supreme
Court under sub-section (1) until the President has passed orders on receipt of the report
of the Supreme Court on such reference.

3. Notwithstanding anything contained in sub-section (1), the President may by order

remove from office the Central Vigilance Commissioner or any Vigilance
Commissioner if the Central Vigilance Commissioner or such Vigilance Comm issioner,
as the case may be,-

(a). Is adjudged an insolvent; or

(b). Has been convicted of an offence which, in the opinion of the Central Government,
involves moral turpitude; or

(c). Engages during his term of office in any paid employment outside the duties of his
office; or

(d). Is, in the opinion of the President, unfit to continue in office by reason of infirmity
of mind or body; or

(e). Has acquired such financial or other interest as is likely to affect prejudicially his
functions as a Central Vigilance Commissioner or a Vigilance Commissioner.

4. If the Central Vigilance Commissioner or any Vigilance Commissioner is or becomes

in any way, concerned or interested in any contract or agreement made by or on behalf
of the Government of India or participates in any way in the profit thereof or in any
benefit or emolument arising there from otherwise than as a member and in common
with the other members of an incorporated company

II. CBI / Central Bureau of Investigation

Central Bureau of Investigation itself was not established via any act of the parliament, yet it
derives its power of investigation from the Delhi Special Police Establishment Act 1946. It
was first set up as Special Police Establishment (SPE) 1941 by the British to investigate the
corruption and economic offenses related to supply department by the Government Officers
during the World War II.
After independence, it was retained as a Central Government agency to investigate cases of
bribery and corruption by Central Government employees. For this, the Delhi Special Police
Establishment Act was enacted 1946. The CBI’s power to investigate cases is derived from
this Act. By a resolution, the government changed its name to current name in 1960s. The
jurisdiction of the SPE extended to all the Union Territories and could be extended also to the
States with the consent of the State Government concerned.

Currently, CBI comes under the control of Department of Personnel and Training in the
Ministry of Personnel, Public Grievances and Pension. It is the nodal police agency in India
to coordinate with Interpol. It investigates those crimes which may have interstate and
international ramifications. Its areas of operation are:

Anti-Corruption: Under this, CBI investigates corruption and fraud committed by public
servants of all Central Govt. Departments, Central Public Sector Undertakings and Central
Financial Institutions.

Economic Crimes: Under this, CBI investigates crimes such as bank frauds, financial frauds,
Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques,
cultural property and smuggling of other contraband items etc.

Special Crimes: Under special crimes, CBI handles cases such as terrorism, bomb blasts,
sensational homicides, kidnapping for ransom and crimes committed by the mafia/the
underworld.

Issue Regarding Granting Autonomy to CBI

The issue regarding granting of autonomy to CBI has recently come to fore in the ongoing
“Coalgate” scam case in Supreme Court. This case began when a PIL was filed by advocate
M L Sharma in 2012, seeking cancellation of 194 coal blocks allocated by the Indian
government to private and public sector companies on grounds of arbitrariness, illegality,
unconstitutionality and public interest.

In May 2013, the CBI submitted to the Court that law minister Ashwani Kumar had been
vetting its responses and affidavits to the Court in this case. In fact, the agency admitted that
Ashwani Kumar and two government officials had changed some parts of its affidavit, though
it also maintained that these parts related to preliminary enquiries and changes in these parts
did not change the overall character of the report.

However, this revelation made the apex court come down heavily on CBI and the
government, calling CBI a “caged parrot that has many masters” and asking the government
to ensure greater functional autonomy for CBI in investigation in corruption cases.

Subsequent hearings in the case led to CBI filing affidavits on specific details of its demand
for greater autonomy. At the same time, the Centre has also filed its objections against few of
the demands for autonomy by CBI.
To understand the calls for autonomy and their benefits or adverse effects, it is important to
first understand the origin of CBI, and its powers and functions at present.

CBI has made the following demands for its functional, administrative and financial
autonomy:

- Vesting its Director with the powers of ex-officio Secretary to the Govt of India:

This would allow the Director to directly report to the Minister of Personnel and hence
reduce the hassles faced by CBI in going through DoPT for even basic administrative issues.
But the Central government has strongly opposed this demand. As per the government, grant
of ex-officio Secretary status to CBI director will go against the scheme of governance as
envisaged in DSPE Act, 1946 and have deleterious effects on the criminal justice system.

Deriding the CBI contention that its chief too should be allowed to report to the minister, as
was the case of the R&AW chief and special secretary (Internal Security), the government
said that the functional requirements of an intelligence agency like R&AW cannot be
compared to an investigating agency like the CBI. It also said that R&AW chief reports to the
cabinet secretary and special secretary (Internal Security) reports to the home secretary, and
not to the prime minister and home minister respectively.

- Role for CBI director in appointing the chief of prosecution wing in CBI:

CBI director Ranjit Sinha has written to Law Ministry seeking a role for the agency’s director
in the appointment of Director of Prosecution in CBI.

- Power for CBI Director to appoint public prosecutor to handle its cases:

CBI has also asked for complete power for its director to appoint public prosecutor in its
cases. This will give it greater autonomy in politically sensitive investigations. So far, public
prosecutors have been appointed by Law & Justice Ministry. According to news reports, the
government had submitted to the Supreme Court on Jan 15th that CBI Director will be given
the power to appoint public prosecutors.

- Three-year tenure for its Director as opposed to the current two-year tenure

- Financial autonomy:

At present, the CBI has to depend on DoPT for its major financial needs. It receives less than
the required expenses for transport expenses of its staff for investigations, training, etc.
According to official sources, the government has agreed to grant financial powers to the CBI
director equivalent to those enjoyed by Director Generals of various paramilitary forces.

Current status of grant of autonomy to CBI

The government has been mulling over introducing a bill to amend the DSPE Act, 1946 to
give more powers and autonomy to CBI. Few provisions for grant of autonomy are also
expected to be notified through executive orders. In recent instance, CBI was given some
financial autonomy. Till now, CBI had to get permission from the government even to
procure small equipments. As per the latest decisions,

Director of CBI can now approve projects worth Rs. 15 crore in a year.

The director will be free to appoint consultants and employ people on contract.

The CBI director has been given the rank of Secretary to the Government of India, and will,
in effect, now be allowed to handle India’s premier investigating agency autonomously.

Today CBI faces following problems:

Credibility crisis: With director of CBI himself meeting persons linked with scams such as
2G, coal block at his residence, the reputation of CBI has touched a new low; appears that
premier investigative agency is hand to glove with accused in high profile scams.

Political pressure: Last year CBI admitted that its status report on coal block allocation scam
was changed under pressure from political executive; showing CBI no longer functions as
truly independent body.

Lack of autonomy: CBI can investigate only those cases which are referred to it by State.
Successive governments have used CBI as an instrument to nail their political opponents in
serious charges like corruption as well as threat to obtain supports from dissenting factions.

Pendency of cases: In various CBI special courts more than 10000 cases are pending; CBI as
an investigative body is unable to nail culprits effectively.

CBI depends on the government for financial and administrative functions. This is a serious
roadblock in CBIs functioning independently. Need reforms in this sphere as well.