Administrative Law: Definition, Nature, Scope &

Sources
1. Introduction
Every government in the world has one main goal — to maintain peace, order, and
social security for its people. The law is the tool used by the State to control human
conduct and ensure that society runs smoothly.

Now, law can broadly be divided into two types:

1. Private Law – which deals with relationships between individuals.

2. Public Law – which deals with the relationship between individuals and the
State.

Among the branches of Public Law, the most important one in modern times is
Administrative Law. Other branches include Constitutional Law, Criminal Law,
and Public International Law.

Administrative Law mainly focuses on the organization, powers, and duties of

government officials and administrative authorities. With the expansion of
government functions and the rise of welfare activities, this branch of law has grown
rapidly in the 20th century.

2. Meaning and Definition of Administrative Law

It’s not easy to define administrative law because it has expanded so much over time.
Still, several jurists have tried to explain it.

Ivor Jennings

He said,

“Administrative Law is the law which determines the organisation, powers and duties
of administrative authorities.”

This is one of the most popular definitions. However, it has two main drawbacks:

• It doesn’t clearly separate Administrative Law from Constitutional Law.

• It’s too broad.

A.V. Dicey

According to Dicey,

“It is that portion of a nation's legal system which determines the legal status and
liabilities of State officials, defines the rights and liabilities of private individuals in
their dealings with public officials, and specifies the procedure by which these rights
and liabilities are enforced.”

His definition is often seen as too narrow, because it leaves out many administrative
authorities (like public corporations) and doesn’t talk about the actual powers and
functions of the administration.

Garner

Garner defined Administrative Law as:

“Those rules which are recognised by the courts as law and which relate to and
regulate the administration of government.”

In simpler words, it’s that part of law which explains how government officials interact
with the public and what rights and duties both sides have.
Still, this too is a bit narrow, since it doesn’t cover the working of administrative
bodies like public corporations.

3. Nature and Scope of Administrative Law

Object

The main aim of administrative law is to control and regulate government

authorities so that their discretionary powers (freedom to make decisions) don’t
become arbitrary powers (used unfairly or without limits).

Growth and Development

Earlier, governments followed a policy called Laissez-faire, which means minimum

government interference and maximum individual freedom.
But after the idea of a welfare state developed, governments began to take a more
active role in ensuring the well-being of citizens — like providing education, health,
housing, and employment.

This shift from “Laissez-faire” to “Welfare State” led to a huge expansion of

government functions and, naturally, the need for a system to regulate and
monitor administrative actions. That’s how administrative law grew rapidly.

Reasons for the Growth of Administrative Law

1. Courts are slow and expensive – They take a long time to decide cases.
Administrative bodies like Labour Courts or Industrial Tribunals can solve
disputes faster and more practically.
2. Need for delegated powers – Since legislatures can’t make laws for every
small detail, they delegate powers to administrative authorities to make rules
and regulations.
3. Flexibility – Legislation is rigid, but administrative processes are quick and
adaptable to changing situations.
 4. Simpler procedures – Administrative tribunals are not bound by strict rules of
evidence or court procedures, so they can decide matters more efficiently.

5. Preventive action – Administrative authorities can act before problems arise

(like issuing or revoking licenses).
6. Effective enforcement – They can immediately act against those violating
laws by cancelling licenses or imposing penalties.

5. Sources of Administrative Law

Administrative Law doesn’t come from a single source — it’s developed through
several ways:

1. Constitutional Law

The Constitution is the supreme law of the land. It provides the basis and
framework for all administrative actions. Any law inconsistent with the Constitution
becomes void (Article 13). Hence, the Constitution is the primary source of
administrative law.

2. Judicial Decisions (Precedents)

Court judgments play a key role. Through their decisions, judges interpret laws and
lay down principles that shape administrative law. In India, many key developments
in this field have come through Supreme Court judgments.

3. Statutes and Delegated Legislation

Many Acts passed by Parliament or State legislatures delegate powers to

administrative authorities to make detailed rules and regulations.
In other countries like the UK and USA, special statutes such as:

• Administrative Procedure Act, 1946 (USA)

• Tribunals and Enquiries Act, 1958 (UK) play an important role.

In India, although we don’t have one specific statute for administrative law, delegated
legislation and tribunal laws serve as major sources.

4. Ordinances by the President and Governors

Under Article 123 (for President) and Article 213 (for Governors), they can make
ordinances when Parliament or State Legislature is not in session. These also
create and define powers of administrative authorities.

5. Reports of Committees and Commissions

Reports prepared by Law Commissions or Parliamentary Committees often
help shape administrative reforms. Examples:

• Donoughmore Committee (1932) in England

• Frank Committee on Administrative Tribunals (1957)
• In India, Law Commission Reports and Parliamentary Committees on
Subordinate Legislation have played a major role in improving
administrative accountability.

Nature and Scope of Administrative Law

1. Nature of Administrative Law
The nature of Administrative Law explains what this branch of law actually is and
how it functions within the legal system.

Administrative Law is a branch of public law that deals with the organization,
powers, duties, and functions of administrative authorities. It focuses on how
public administration operates and how it can be kept within the limits of law.

In simple words, Administrative Law controls government power and ensures

that it is used properly and not misused. It acts as a bridge between the people
and the government, protecting citizens from arbitrary or unfair actions by officials.

Key Features of its Nature:

1. Part of Public Law:

Administrative Law is a branch of public law because it deals with the
relationship between the government and individuals.
2. Dynamic and Ever-Growing:
It is not a fixed or static branch of law. It keeps evolving with changes in
society, economy, and government functions.

3. Concerned with the Functioning of Administration:

It focuses more on how government departments and authorities work in
practice, not just their legal structure.
4. Ensures Accountability:
It ensures that the government and its officers act lawfully, fairly, and
reasonably.
5. Protects Citizens’ Rights:
One of its main purposes is to protect individuals from abuse of power by
administrative bodies.
6. Combination of Law and Practical Governance:
Administrative law connects legal rules with real-world administration,
making sure that legal principles guide day-to-day governance.
2. Scope of Administrative Law
The scope of administrative law is very wide — it covers almost every activity of the
government that affects individuals or the public.

With the rise of the Welfare State, government functions have increased
tremendously — from maintaining law and order to providing healthcare, education,
and employment. To manage all this efficiently, a proper system of administrative law
is essential.

The Scope Includes:

1. Organisation and Powers of Administrative Authorities:

It studies how different government departments, public corporations, and
administrative bodies are organized and what powers they hold.
2. Rule-Making Powers (Delegated Legislation):
Administrative authorities often make rules, regulations, and by-laws under
the powers delegated to them by the legislature. Administrative law examines
and controls these delegated legislative powers.
3. Administrative Adjudication (Tribunals):
Administrative law covers the working of administrative tribunals that decide
disputes between citizens and the government — like Labour Tribunals, Tax
Tribunals, etc.
4. Judicial Control of Administrative Actions:
It includes the judicial review of administrative actions by the courts to
ensure that authorities do not act beyond their powers or violate fundamental
rights.
5. Government Liability:
It deals with situations where the State can be held responsible for the
wrongful acts of its officers (tortious liability of the State).
6. Public Corporations and Government Companies:
Administrative law also includes the control and working of public enterprises,
boards, and corporations which perform public functions.
7. Discretionary Powers and Their Control:
It studies how far administrative officers can use their discretion and what
limits are placed on them to prevent misuse of authority.
8. Procedural Fairness and Natural Justice:
It ensures that while taking decisions, authorities follow the principles of
natural justice — such as giving fair hearing and acting without bias.

Droit Administratif (French Administrative Law)

1. Introduction
The origin of Administrative Law goes back to the very beginning of organized
government. However, its real growth and development happened in the 20th
century. Among all countries, France was the first to develop administrative law in a
clear and systematic form, long before other nations.
In France, Administrative Law is known as “Droit Administratif”, which literally
means “administrative law.” It represents a body of rules that define the
organization, powers, and duties of public administration, and regulate the
relationship between the State (administration) and citizens.

2. Meaning of Droit Administratif

Droit Administratif refers to a system of law developed by administrative courts in
France.
It is not made by Parliament or written in a statute — instead, it consists of rules and
principles created by administrative courts to deal with disputes involving
government authorities.

In simple terms, it is the law that governs how government officials and
departments act, and how citizens can seek redress against them.

3. Dual System of Law and Courts in France

The French legal system is unique because it follows a dual system of courts —
meaning there are two separate sets of laws and courts:

1. Ordinary Law and Ordinary Courts:

These handle cases between private individuals (subject vs subject).
2. Administrative Law and Administrative Courts:
These handle cases between individuals and the State (subject vs
administration).

This means that when a dispute arises involving a government department or

official, it is not handled by ordinary civil courts, but by special administrative
courts.

4. Origin and Development

Although the idea of administrative law existed earlier, it was Napoleon Bonaparte
in the 18th century who gave it a proper structure and recognition.
He strongly supported Droit Administratif and established an important institution
called the Conseil d’État (Council of State) in 1799 to protect citizens from
administrative excesses.

The main purpose of this institution was to resolve disputes arising out of
government administration and to advise the ministers. Over time, it started
performing judicial functions as well.
5. Main Features of Droit Administratif
The French system of administrative law has four main features:

1. Dual System of Courts

France has two separate systems:

 • Ordinary Courts – handle disputes between private individuals.
• Administrative Courts – handle disputes between the State or government
officials and citizens.

The administrative authorities are not subject to ordinary courts. Cases against
them are heard in administrative courts, which follow their own special rules.

2. Conseil d’État (Council of State)

The Conseil d’État is the highest administrative court in France.

• It was established by Napoleon in 1799 to provide relief to citizens against

the misuse of power by administrative officials.
• Initially, its function was advisory, helping ministers resolve administrative
issues.
• Gradually, it started performing judicial functions.
• In 1872, its power to give judgments was officially recognized.
• In 1873, it was decided that its jurisdiction in administrative matters would
be final.

Today, the Conseil d’État acts as both:

• A judicial body (hearing cases and giving judgments), and

• A consultative body (advising the government on administrative matters).

It consists mainly of civil servants and is divided into different sections — such as
judicial, advisory, and others.

3. Tribunal des Conflits

In some cases, there may be confusion over whether a dispute should be decided by
an ordinary court or an administrative court.
To resolve this, France has a special tribunal known as the Tribunal des Conflits.

• It settles conflicts of jurisdiction between ordinary and administrative courts.

• The tribunal has equal numbers of judges from both sides — from ordinary
civil courts and the Conseil d’État.
• It is presided over by the Minister of Justice, and its decision is final.

4. Application of Special Rules

The administrative courts do not follow the ordinary civil law.

They decide cases based on special rules developed by the administrative courts
themselves.

This allows them to make flexible decisions suited to administrative matters and
public interest.
2. Doctrine of Rule of Law

1. Introduction
The phrase “Rule of Law” comes from the French expression “La Principe de
Légalité”, which means a government based on law.

In simple words, the Rule of Law means that law is supreme and no one is above
the law — not even the government. It represents a situation in a country where
laws are obeyed, justice is maintained, and arbitrary power is rejected.

According to Garner, the term is often used to describe a state of affairs in which the
law is observed and order is kept — that is, a state governed by law and justice, not
by the whims of rulers.

The Doctrine of Rule of Law forms the foundation of Administrative Law. It was
first introduced by Sir Edward Coke in England and later fully developed by Prof.
A.V. Dicey in his famous book “The Law of the Constitution” (1885).

Coke stated that the King must be under God and the Law, establishing the
supremacy of law over all authorities.

Dicey considered the Rule of Law as the bedrock of the British legal system, and
this concept is now accepted in the constitutions of the U.K., the U.S.A., and
India.

2. Dicey’s Three Principles of Rule of Law

According to A.V. Dicey, the Rule of Law has three meanings or principles:

1. Supremacy of Law
2. Equality before Law
3. Predominance of Legal Spirit

Let’s understand each one:

(1) Supremacy of Law

The first and most important meaning of the Rule of Law is that no person can be
punished or made to suffer except for a breach of law established in the
ordinary courts of the land.

In short:

• No one can be punished unless they have violated a law.

• Every punishment must be given through proper legal procedure.
• This principle rejects arbitrary power and insists that law must govern, not
individuals.
Dicey said that “Law is supreme”, meaning that government officials or even the
King cannot act beyond the law.

As Prof. Wade (in Administrative Law, 1971) explained:

“The Rule of Law requires that the Government should be subject to the law, rather
than law subject to the Government.”

(2) Equality before Law

The second meaning of the Rule of Law is “no one is above the law.”

Every individual — whether rich or poor, official or citizen — is subject to the same
ordinary law and is answerable before the same courts.

Dicey emphasized the principle of equal subjection of all classes to the ordinary
law of the land.

He strongly criticized the French system of Droit Administratif, where separate

courts existed for government officials, saying that such a system denies equality
before law.

Thus, under the Rule of Law, everyone stands equal before the same set of legal
rules.

(3) Predominance of Legal Spirit

The third meaning of the Rule of Law is that the rights of individuals are not
guaranteed by any written document but are the result of judicial decisions.

Dicey believed that fundamental rights such as liberty or freedom are protected by
the ordinary courts rather than by written constitutions.

For example, in England there is no written constitution, yet citizens enjoy rights
because courts uphold them through judicial decisions.

He stated that merely writing rights in a constitution is not enough — they must
be enforceable by courts for them to have real value.

3. Application of Rule of Law in England

In England, even though there is no written constitution, the Rule of Law is deeply
rooted and applied through judicial decisions.
The courts act as guardians of individual rights and maintain control over
administrative actions.

However, Dicey’s theory is not completely accurate in practice:

 • In modern times, many laws grant discretionary powers to the executive,
and not all of them are challenged in courts.
• Earlier, sovereign immunity existed under the doctrine that “the King can do
no wrong.”
This was later abolished by the Crown Proceedings Act, 1947, which
allowed citizens to sue the government for wrongful acts.
• Dicey also failed to distinguish between arbitrary power and discretionary
power and did not appreciate the advantages of the French administrative
system.

4. Rule of Law under the Indian Constitution

The Indian Constitution fully embraces the Doctrine of Rule of Law.

Its ideals of justice, liberty, and equality — mentioned in the Preamble — reflect
the very spirit of this doctrine.

Key Constitutional Provisions Reflecting Rule of Law:

1. Supremacy of the Constitution – The Constitution is the supreme law of

the land, and all other laws must conform to it.
Any law violating the Constitution can be declared void (Article 13).
2. Fundamental Rights (Part III):
o Article 14: Guarantees Equality before Law and Equal Protection of
Laws.
o Article 21: Ensures Right to Life and Personal Liberty — no person
can be deprived of life or liberty except according to the procedure
established by law.
o Article 19: Protects Freedom of Speech, Assembly, Association,
Movement, Residence, and Profession — but with reasonable
restrictions.
3. Article 20: Protects individuals in criminal matters:
o 20(1): No person shall be punished except under a law in force at the
time of the act.
o 20(2): No one shall be punished twice for the same offence (double
jeopardy).
o 20(3): No person shall be compelled to be a witness against
themselves (selfincrimination).
4. Article 32: Gives citizens the right to approach the Supreme Court directly
for enforcement of their Fundamental Rights.

The Constitution clearly makes Legislature, Executive, and Judiciary subordinate

to the Constitution and subject to judicial review.
5. Judicial Interpretation of Rule of Law in India
Several Supreme Court judgments have expanded and strengthened the meaning
of the Rule of Law in India:

1. Kesavananda Bharati v. State of Kerala (1973)

o The Supreme Court held that the Rule of Law is a part of the “Basic
Structure” of the Constitution.
o It cannot be destroyed or amended by Parliament.
2. Indira Gandhi v. Raj Narain (1975) o The Supreme Court struck down
Article 329A (39th Amendment) which gave immunity to the Prime Minister’s
election, holding that it violated the basic structure and Rule of Law.
3. Maneka Gandhi v. Union of India (1978) o The Court ruled that Article
14 strikes against arbitrariness, and no action of the State can be arbitrary
— thus linking the Rule of Law with fairness, reasonableness, and justice.
4. A.D.M. Jabalpur v. Shivakant Shukla (1976) — Habeas Corpus Case o
During the Emergency, the question was whether there existed any Rule of
Law apart from Article 21.
o The Supreme Court (by majority) held that there is no Rule of Law
other than the constitutional rule of law, and if Article 21 is
suspended, there is no Rule of Law.
o This decision was widely criticized and later effectively overruled in
spirit by Maneka Gandhi’s case.

6. Conclusion
The Doctrine of Rule of Law is the cornerstone of democratic
governance. It ensures that power is exercised according to law, not
according to personal will or arbitrary authority.

In India, it has become an essential part of the Basic Structure of the

Constitution, meaning it cannot be amended or destroyed by any government.

To sum up:

The Rule of Law stands for supremacy of law, equality before law, and protection
of individual rights through an independent judiciary.

It remains a guiding principle that keeps government power in check and

safeguards the liberty and dignity of every citizen.
 3. Doctrine of Separation of Powers
The Doctrine of Separation of Powers is a fundamental principle of governance
that seeks to prevent the concentration of power by dividing governmental authority
among three distinct organs — the Legislature, the Executive, and the Judiciary.
This doctrine ensures that power is distributed and balanced, reducing the risk of
tyranny and safeguarding individual liberty.

Origin and Historical Development

The idea of separation of powers can be traced back to Aristotle, who first spoke
about distinct government functions. It was later developed by John Locke, the
British political philosopher, who emphasized the need to divide legislative and
executive powers for preventing abuse of authority.

However, the doctrine was systematically formulated by the French jurist

Montesquieu in his celebrated work “The Spirit of Laws” (1748). Montesquieu
observed that when legislative, executive, and judicial powers are concentrated in
one person or body, it leads to arbitrary rule. To ensure liberty, he proposed that
these three powers should be separated and exercised by different organs of
government.

Meaning of the Doctrine

According to the Doctrine of Separation of Powers, the three major functions of the
government should be performed by three separate organs:

1. The Legislature – responsible for making laws.

2. The Executive – responsible for implementing and enforcing laws.
3. The Judiciary – responsible for interpreting and applying laws.

Each organ must act within its own sphere and must not encroach upon the functions
of the others. This means:

• The Legislature cannot exercise executive or judicial powers.

• The Executive cannot make laws or administer justice.
• The Judiciary cannot perform legislative or executive duties.

As Wade and Phillips put it, the same set of persons should not compose more than
one organ of the government.

Objective of the Doctrine

The main object of the doctrine is to ensure:

• Distribution of power to prevent concentration in one hand.

 • Checks and balances among the organs of government.
• Accountability and protection of individual liberty.
• Minimization of arbitrariness and abuse of authority.

Effect and Importance

This doctrine had a profound influence on the development of administrative law
and the functioning of modern democratic governments. It became the
foundation for the constitutional structure of many countries, especially the United
States, and served as a guiding principle in others like the United Kingdom and
India.

Position in Different Countries

1. United States of America

The U.S. Constitution strictly adopts the doctrine of separation of powers:

• Article I – Legislative powers are vested in the Congress.

• Article II – Executive powers are vested in the President.
• Article III – Judicial powers are vested in the Supreme Court and other
federal courts.

The U.S. system also includes “checks and balances” to prevent one
branch from dominating the others. Examples:

• The President can veto congressional legislation.

• Congress can impeach the President or judges.
• The Judiciary can declare laws unconstitutional through judicial review.

However, due to the rise of administrative functions, a strict separation is not

always possible in practice.

2. United Kingdom

In the U.K., the doctrine is not strictly followed. There exists a fusion of powers,
especially between the Legislature and the Executive:

• The Prime Minister and Cabinet are members of the Parliament

(Legislature).
• The House of Lords, part of the Legislature, used to function as the highest
Court of Appeal.
• The Crown (Executive) plays a role in legislative functions such as
introducing bills and dissolving Parliament.

Thus, the separation in the U.K. is functional, not absolute — ensuring cooperation
between organs while maintaining checks and accountability.

3. India
The Indian Constitution does not explicitly provide for a rigid separation of powers.
However, it recognizes the concept in spirit.

• Legislative Powers → Vested in the Parliament and State Legislatures.

• Executive Powers → Vested in the President and Council of Ministers.
• Judicial Powers → Vested in the Supreme Court, High Courts, and
Subordinate Courts.

Article 50 of the Constitution (Directive Principles) directs the State to separate the
judiciary from the executive in public services of the State.

However, complete separation is not followed. There are overlaps:

• The Parliament can punish for contempt or breach of privilege (judicial

function).

• The Executive can frame rules and regulations (delegated legislation) and
perform quasi-judicial functions.
• The Judiciary exercises judicial review over legislative and executive
actions.

The Supreme Court in Indira Nehru Gandhi v. Raj Narain (1975) held that
separation of powers is followed in India in a broad sense, not rigidly.

Criticisms of the Doctrine

1. Impracticable in Modern States:
In a welfare state, functions of the government are interdependent; strict
separation would hinder governance.
2. Theoretical and Unrealistic:
As Friedmann observed, strict adherence to the doctrine is a “theoretical
absurdity and a practical impossibility.”
3. Need for Coordination:
Modern governance requires cooperation and coordination between organs,
not isolation.
4. Overlapping Powers are Necessary:
Certain overlaps like delegated legislation and judicial review are essential to
maintain flexibility and accountability.

Relation with Administrative Law

Administrative Law and the Doctrine of Separation of Powers share the same
goal — the protection of individual rights and prevention of abuse of power.
However, they differ in approach:

• Separation of Powers → Prevents abuse by dividing powers.

• Administrative Law → Controls and regulates the exercise of administrative
power.
Despite being somewhat contrary in operation, the Doctrine of Separation of
Powers has greatly influenced the growth of Administrative Law, especially in
ensuring that executive authorities remain subject to law and judicial control.

Conclusion
The Doctrine of Separation of Powers remains a cornerstone of constitutional
governance. While strict separation is neither possible nor desirable in modern
states, the spirit of the doctrine — checks, balance, and accountability —
continues to guide democratic systems. In India, though not rigidly followed, it
operates as a constitutional principle ensuring rule of law, independence of
judiciary, and limited government — essential elements of a free and democratic
society.

4. Delegated Legislation – Necessity, Sub-Delegation, and

Conditional Legislation

1. Meaning of Delegated Legislation

The term “Delegated Legislation” refers to laws or regulations made by an
authority other than the legislature, acting under powers delegated to it by the
legislature.
The expression is derived from the idea that the legislature — being the supreme
law-making body — can delegate part of its law-making authority to the executive or
administrative bodies to frame rules, regulations, by-laws, or orders necessary to
implement the laws it enacts.

According to Salmond:
“Delegated 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 authority.”

Thus, delegated legislation is also known as “Subordinate Legislation” or

“Administrative Legislation” — meaning the law made by a subordinate body
under powers conferred by the supreme legislative authority.

2. Necessity of Delegated Legislation

In modern governance, delegated legislation has become a practical necessity due
to several political, technical, and administrative reasons. The Committee on
Ministers’ Powers (England) enumerated the following key reasons for its growth:

(1) Pressure on Parliamentary Time

In a modern welfare state, the functions of government have expanded enormously.
Legislatures cannot devote sufficient time to discuss and decide upon every minor
detail of law. Therefore, the legislature passes skeleton legislation, leaving the
details (flesh and blood) to be filled in by the executive through rules, regulations,
and by-laws.

(2) Technicality

Certain legislative matters, especially those involving science, industry, finance, and
technology, require technical expertise. Legislators, being generalists, often lack
this specialized knowledge. Hence, it becomes necessary to delegate this function to
expert administrative agencies capable of framing effective and technically sound
regulations.

(3) Flexibility

Ordinary legislative procedures are rigid and time-consuming. Delegated legislation

allows the government to amend, modify, or repeal rules quickly and efficiently
according to changing social or economic conditions. This ensures flexibility in law-
making.

(4) Emergency Situations

In times of emergency—such as war, economic crisis, or natural calamities—
immediate legal action is required. The legislature may not be in session, or it may
not be possible to follow the lengthy legislative process. Delegating legislative
powers to the executive allows swift decision-making to meet urgent needs.

(5) Secrecy

In certain situations, secrecy is essential before implementing a law — for example,

in imposing import duties, rationing schemes, or foreign exchange controls.
Delegated legislation allows confidential preparation and announcement of such
measures only when required.

3. Sub-Delegation
Meaning

When the delegated authority (the delegate) further delegates the power conferred
upon it to another subordinate authority, it is called Sub-Delegation.
In other words, sub-delegation means “the delegation of a delegated power.”

• The authority granting the original power is called the parent (or delegate).
• The further authority receiving power from the delegate is called the sub-
delegate (or child).
For example, if Parliament delegates rule-making power to a Minister, and the
Minister authorizes a department or officer to make detailed rules, this is sub-
delegation. Legal Maxim

The principle governing sub-delegation is expressed by the Latin maxim:

“Delegatus non potest delegare”, meaning “a delegate cannot further delegate.”

This means that unless the parent statute expressly or impliedly authorizes
further delegation, the delegate has no right to sub-delegate the power.

Criticism

Sub-delegation is often criticized on the following grounds:

1. It violates the rule of law and Parliamentary sovereignty.

2. It lacks democratic control, as the sub-delegate is far removed from the
legislature.
3. It leads to administrative arbitrariness and uncertainty in governance.

Judicial Decisions

1. Jackson v. Butterworth (1946 VLR 330):

Circulars issued by a sub-delegate were held invalid since the delegate had
no authority to further delegate.
2. Ganapati v. State of Ajmer (AIR 1955 SC 188):
The Chief Commissioner was empowered to frame rules for sanitation at fairs
but

further authorized the District Magistrate to devise his own system. The
Supreme Court held the rules framed by the District Magistrate ultra vires
(beyond authority), declaring sub-delegation invalid.

Position in India

In India, sub-delegation is not permissible unless the parent statute expressly

or impliedly authorizes it. Any sub-delegation made without such authority is void.

4. Conditional or Contingent Legislation

Meaning

Conditional or contingent legislation is a type of law where the legislature makes a

complete statute but leaves it to the executive to decide when, where, or to
whom the law will apply, based on the fulfillment of certain conditions or
contingencies.

It does not delegate law-making power, but merely confers authority to

determine when the law becomes operative.
Definitions

• Hart:
“Conditional legislation is a statute that provides controls but specifies that
they are to go into effect only when a given administrative authority fulfills the
existence of conditions defined in the statute.”
• Cooley:
“It is not always essential that a legislative act should take effect immediately;
it may depend upon some subsequent event or condition.”

Types of Conditional Legislation

1. Power to bring the Act into operation:

The Act specifies that it will come into force on a date appointed by the
Government. Example: Section 1(3) of the Consumer Protection Act, 1986,
empowers the Government to fix the commencement date.
2. Power to extend the life of the Act:
The Executive may be empowered to extend the duration of an Act for a
further period.
Example: Bihar Maintenance of Public Order Act, 1948.
3. Power to apply or extend the Act to other areas or classes:
The Executive may be authorized to apply the Act to new territories, persons,
or industries.
Example: Section 27 of the Minimum Wages Act, 1952, empowers the
Government to extend the Act to additional industries.
4. Power to adopt laws from other States:
The Executive may adopt and apply laws existing in other States.
Example: Section 7 of the Part C States (Laws) Act, allows extension of laws
from Part-A States.

5. Judicial Recognition
The distinction between delegated and conditional legislation has been recognized
by courts in both England and India.
Indian courts have upheld conditional legislation as valid, holding that no
legislative power is delegated — only the power to determine when the Act should
take effect.

6. Conclusion
Delegated legislation has become an essential feature of modern governance.
While it helps reduce legislative burden and ensures flexibility, it must be carefully
controlled to prevent misuse.
Sub-delegation is not permissible unless authorized, ensuring that law-making
power remains accountable.
Conditional legislation, on the other hand, represents a legitimate administrative
function, ensuring the effective and timely enforcement of laws.

Thus, in a complex welfare state, delegated legislation, within constitutional

limits, remains indispensable for efficient and responsive governance.

 In re Delhi Laws Act, AIR 1951 SC 332

 Facts: The Central Government was given the power to extend laws from
other states to Delhi with "restrictions and modifications." The question was
whether the legislature could delegate its law-making power to the executive.
 Judgment: The Supreme Court held that while the legislature can delegate
power to implement laws (fill in details), it cannot delegate its "essential
legislative function" (laying down policy and principles).
 Significance: Established the Doctrine of Permissible Delegation. The
legislature must provide a policy or standard for the executive to follow.

 Lachmi Narain v. Union of India, AIR 1976 SC 714

 Facts: The Government extended the Bengal Finance (Sales Tax) Act to Delhi
but modified it to give itself the power to withdraw tax exemptions, effectively
changing the tax policy.
 Judgment: The Court held this modification invalid. The power to "modify" a
law while extending it does not include the power to change the essential
policy or structure of the law.
 Significance: Limits the executive's power to modify statutes under delegated
legislation.

 Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149

 Facts: A notification fixing the price of iron/steel was challenged because it

was not "laid before the Parliament" as required by the Essential Commodities
Act.
 Judgment: The Court distinguished between Mandatory and Directory laying
procedures. Since the statute did not say the rule would be void if not laid, the
requirement was held to be directory.
 Significance: Failure to follow "simple laying" procedures does not
automatically invalidate the rule.

 Govind Lal v. A.P.M. Committee, AIR 1976 SC 263

 Principle: This case dealt with the mandatory nature of publication. The
Court held that if a statute requires a notification to be published in a specific
manner (e.g., in a newspaper) to inform the public, failure to do so renders the
action void. Procedural safeguards in delegated legislation are mandatory.
 Sonik Industries, Rajkot v. Municipal Corpn. of the City of Rajkot, AIR 1986
SC 1518

 Principle: The Court held that the requirement to publish rules is to give the
public notice. If there is substantial compliance (even if not perfect technical
compliance) that achieves the object of informing the public, the rules may be
upheld.

5. Legislative and Judicial Control of Delegated

Legislation
Introduction
In a modern welfare state, the functions of the government have expanded rapidly.
The legislature cannot possibly make detailed laws for every administrative and
technical matter. Hence, it delegates certain law-making powers to the executive or
subordinate authorities — a process known as delegated legislation.

While delegation helps in reducing the legislative burden, it also creates the risk of
abuse of power by the delegate. Therefore, effective control over delegated
legislation is essential to maintain constitutional balance and ensure accountability.

The control over delegated legislation operates through two primary means:

1. Legislative (or Parliamentary) Control

2. Judicial Control

1. Legislative (or Parliamentary) Control

Since the legislature delegates law-making powers to the executive, it also has the
responsibility to supervise and ensure that these powers are exercised within the
prescribed limits. Legislative control ensures democratic accountability, as the
executive remains answerable to the elected legislature.

(A) Methods of Legislative Control

1. Laying on the Table

“Laying” means placing the rules or regulations before the legislature so that
members can examine, question, or annul them. It helps the legislature keep itself
informed about how the delegated powers are being used.
The Select Committee on Delegated Legislation (1953) classified the laying
procedure into the following types:

1. Simple Laying – The rule comes into force once it is placed before the
House.
Members are merely informed; there is no power of modification or
annulment. Example: Informational purpose only.
2. Laying Subject to Annulment – The rule takes effect immediately but can be
annulled by the House through a resolution. This provides partial control.
3. Laying Subject to Affirmative Resolution – The rule will not come into force
unless it is specifically approved by the legislature through a resolution. This
gives maximum control.
4. Laying Subject to Negative Resolution – The rule takes effect after a
specified period (e.g., 40 days) unless disapproved by the House.
5. Laying of Draft Rules – The draft rules are first placed before the House, and
they take effect only after the legislature approves them. This ensures
advance scrutiny before enforcement.

2. Scrutiny Committees

Merely laying rules before the legislature is insufficient unless they are properly
studied. Hence, special committees are constituted to examine the rules and
regulations made under delegated authority.
(i) Lok Sabha Committee on Subordinate Legislation

• Established in 1953.
• Comprises 15 members, appointed by the Speaker for one year.
• Ministers are excluded from membership.
• Usually chaired by a member of the opposition.
• Its function is to examine whether the executive has kept within the limits of
the delegated power and whether the rules are consistent with the parent Act.

(ii) Rajya Sabha Committee on Subordinate Legislation

• Established in 1964.
• Comprises 15 members, nominated by the Chairman of the Rajya Sabha.
• Ministers can be members.
• It performs a similar role of scrutiny and reporting on delegated legislation.

Both committees regularly point out when the government fails to follow the required
laying procedure or when the delegated powers are misused.

(B) Effectiveness of Legislative Control

Legislative control in India is limited in practice, because:

• The legislature is overburdened with work.

• Members may lack technical expertise to examine complex rules.
 • The volume of delegated legislation is enormous.

However, through scrutiny committees and laying procedures, some degree of

democratic control is maintained.

2. Judicial Control over Delegated Legislation

The judiciary acts as the guardian of the Constitution and the rule of law. It
ensures that delegated legislation does not go beyond the authority granted by the
legislature and that it conforms to constitutional limits.

Courts exercise judicial review over both the parent Act and the delegated
legislation itself.

(A) Grounds for Judicial Review

1. Parent Act Ultra Vires the Constitution o If the parent Act itself
violates any provision of the Constitution, it is void, and the delegated
legislation made under it automatically becomes void.

o Case: Chintaman Rao v. State of M.P. (AIR 1951 SC 118) – An order

prohibiting beedi manufacture was struck down as violative of Article
19(1)(g) (freedom of trade and profession).

2. Delegated Legislation Ultra Vires the Constitution

o Even if the parent Act is valid, the rules or regulations made under it
can be unconstitutional.
o Case: Air India v. Nergesh Meerza (AIR 1981 SC 1829) – A regulation
terminating an airhostess’s service upon pregnancy was held violative
of Article 14 (Right to Equality).

3. Delegated Legislation Ultra Vires the Parent Act

o If the rules or regulations go beyond the scope or policy of the
parent Act, they can be declared invalid.
o Case: Ram Prasad v. State of U.P. (AIR 1952 All 843) – Panchayat Raj
Rule 87 was held ultra vires as it exceeded the powers granted by the
parent Act.

4. Delegated Legislation Ultra Vires General Law

o If delegated legislation contradicts general principles of law or
makes lawful acts unlawful (or vice versa), it can be struck down.
o Case: A.V. Nachane v. Union of India (AIR 1982 SC 1126) – LIC bonus
rules were held ultra vires as they contradicted earlier settlement terms.

5. Unreasonableness -Although statutes are generally not struck down for

unreasonableness, delegated legislation can be invalidated if found to be
arbitrary, oppressive, or without justification.
 Case: State of Assam v. Om Prakash (AIR 1973 SC 678).

6. Mala Fide (Bad Faith) -If the delegated legislation is made with an ulterior
motive or for reasons unrelated to the purpose of delegation, it is invalid.

7. Excessive Delegation -If the legislature delegates essential legislative

functions without providing policy or guidelines, the delegation is
unconstitutional.
o Case: Delhi Laws Act Case (AIR 1951 SC 332) – Supreme Court held
that essential legislative functions cannot be delegated.

8. Sub-Delegation Without Authority -A delegate cannot further delegate

unless the parent Act expressly or impliedly authorizes it.
o Case: Ganapati v. State of Ajmer (AIR 1955 SC 188) – Sub-delegation

by the District Magistrate was held ultra vires. (B) Significance of

Judicial Control
Judicial control ensures that:

• The executive remains within legal limits.

• Constitutional principles and fundamental rights are protected.

• Delegated legislation maintains consistency with legislative intent.

Conclusion
Delegated legislation has become a necessary tool in modern governance, but it
must function under strict supervision to prevent misuse of power.

• Legislative control ensures political and democratic accountability.

• Judicial control ensures constitutional and legal validity.

Both these mechanisms together maintain the balance of power between the
legislature and the executive, preserving the rule of law and constitutional
supremacy.
Module 2

PRINCIPLE OF NATURAL JUSTICE AND ADMINISTRATIVE

DISCRETION

Concept of Natural Justice, the Rule of Fair Hearing,

1. Concept of Natural Justice

Definition and Nature:

Natural Justice refers to the "minimum standards or principles" that administrative

authorities must follow when deciding matters that have civil consequences1. It
implies fairness, reasonableness, equity, and equality2.

 Origins: It is a concept of Common Law, similar to the American concept of

"procedural due process"3.
 Constitutional Basis in India: The principles are firmly grounded in the
Indian Constitution:
o Article 14: Violation of natural justice results in arbitrariness, which
violates the Equality Clause4.
o Article 21: The concepts of substantive and procedural due process
are read into Article 21 (Right to Life and Liberty)5.
The Two Pillars:

There are two main principles that every authority must follow:

1. Nemo judex in causa sua: No one should be a judge in their own case (Rule
Against Bias)6.
2. Audi alteram partem: No one should be condemned unheard (Rule of Fair
Hearing)7.

2. The First Principle: Rule Against Bias

The "Rule Against Bias" ensures that the deciding authority is impartial and decides
the case objectively based on evidence8. A decision resulting from bias is a nullity9.
Types of Bias:
 Personal Bias: Arises from friendship, hostility, or professional relationships
between the authority and the parties10.
 Pecuniary Bias: Any financial interest, no matter how small, vitiates the
administrative action12.
 Subject Matter Bias: When the deciding officer is directly involved in the
subject matter14.
 Departmental Bias: Arises when the functions of the judge and prosecutor
are combined in the same department16.
 Preconceived Notion Bias: While no judge is a "blank sheet of paper," bias
exists if a preconceived notion is strong enough to foreclose the mind of the
judge18181818.
3. The Second Principle: Rule of Fair Hearing
The rule Audi alteram partem implies that a person must be given an opportunity to
defend themselves19.
Components of Fair Hearing:
 Right to Notice: Notice is the starting point. It must be adequate, containing
specific charges, legal authority, and sufficient time to reply202020202020202020.
o Example: Giving only 24 hours to demolish a structure was held to be
improper notice21.
 Right to Present Case and Evidence: The authority must afford a
reasonable opportunity to present the case, either orally or in writing22.
 Right to Rebut Adverse Evidence: The person must be informed of the
evidence against them (a summary is usually sufficient) to allow for
rebuttal23232323.
 Cross-Examination: This is not always an absolute right in administrative
adjudication. However, it must be allowed if witnesses have deposed orally or
if it is necessary for an effective defense (e.g., in labor relations or disciplinary
proceedings)24242424.
 Legal Representation: This is not an indispensable part of natural justice. It
may be denied to prevent complications or delays25. However, courts may
allow it if the person is illiterate, the matter is technical, or a question of law is
involved26.
 Supply of Inquiry Report: In disciplinary matters (Art. 311(2)), the Inquiry
Officer's report constitutes the material for the final decision. Failure to supply
this report to the delinquent employee before the final decision can violate
natural justice272727272727272727.
 Post-Decisional Hearing: In urgent situations where a pre-decisional hearing
is not possible, a hearing after the decision may suffice28.
o Leading Case: Maneka Gandhi v. Union of India – The Supreme
Court held that while impounding a passport for public interest might
require immediate action, the authority must provide a "Post-Decisional
Hearing" immediately after the order to satisfy natural justice292929.

4. Reasoned Decisions (Speaking Orders)

A "Speaking Order" is an order that mentions the reasons for the decision30.
 Significance: It excludes arbitrariness, proves application of mind, and
enables the aggrieved party to exercise their right of appeal
effectively313131313131313131.
 Consequence: A non-speaking order amounts to depriving a party of a right
of appeal32.

5. Exceptions to Natural Justice

The principles of Natural Justice are not absolute and can be excluded by statute or
necessity, provided the exclusion is not arbitrary (violating Art. 14)33.
1. Emergency: Where prompt action is needed (e.g., demolishing a dangerous
building)34.
2. Confidentiality: Where observing natural justice would defeat the purpose
(e.g., maintenance of police surveillance registers)35353535.
 o Case: S.P. Gupta v. Union of India – No hearing is required for an
Additional Judge before dropping their name from confirmation36.
3. Routine/Academic Matters: Courts are reluctant to interfere in academic
assessments (e.g., removal for unsatisfactory performance)37.
4. Impracticability: If providing a hearing is administratively impossible.
o Example: Cancellation of an entire MBA entrance exam due to mass
copying; individual hearings for all candidates were impossible38.
5. Interim Preventive Action: Natural justice may be excluded for suspension
orders pending inquiry, as they are preventive, not final39393939.
6. Legislative Actions: Policies affecting the public at large (e.g., price fixing
notifications) do not require individual hearings40404040.
7. No Right Infringed: If a person has no legal right to the claim (e.g., a tenant
staying after a limited tenancy expires)41.
8. Statutory Necessity: If a biased person is the only one competent to decide,
they must decide to prevent the administration from halting42.
9. Contractual Arrangement: Termination of contractual arrangements is often
considered neither quasi-judicial nor administrative, excluding these
principles43.

6. Important Case Laws

 Maneka Gandhi v. Union of India: Established the concept of "Post-
Decisional Hearing" to balance administrative efficiency with fairness44.
 S.P. Gupta v. Union of India: Held that natural justice can be excluded in
cases of confidentiality regarding the non-confirmation of High Court judges45.

 A.K. Kraipak v. Union of India, AIR 1970 SC 150

 Facts: A member of a selection board for the Indian Forest Service was also a
candidate for selection. He did not sit for his own interview but participated in
selecting his rivals.
 Judgment: The selection was quashed. The Court held that Natural Justice
applies to administrative functions, not just quasi-judicial ones.
 Significance: The distinction between administrative and quasi-judicial acts
was blurred; the Rule Against Bias applies to all.

 Maneka Gandhi v. Union of India, (1978) 1 SCC 248

 Facts: The passport of the petitioner was impounded "in public interest"
without a hearing.
 Judgment: The Court held that even if a prior hearing is not possible, a Post-
Decisional Hearing must be given. Procedure established by law must be
"fair, just, and reasonable" (Article 21).
 Significance: Introduced the concept of Post-Decisional Hearing and
expanded the scope of Natural Justice.

 Hira Nath Mishra v. Principal, Rajendra Medical College, AIR 1973 SC 1260
  Facts: Male students entered a girls' hostel naked. They were expelled based
on statements from the girls, but the boys were not allowed to cross-examine
the girls to protect the girls' privacy.
 Judgment: The Court upheld the expulsion. Natural Justice is flexible; strict
cross-examination is not always necessary if it causes embarrassment or
harm to witnesses in sensitive cases.

 Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454

 Facts: Members of the State Public Service Commission interviewed

candidates to whom they were related.
 Judgment: The Court applied the "Reasonable Likelihood of Bias" test.
While relatives should not interview candidates, in this case, the strict rule was
relaxed due to the "Doctrine of Necessity" (no one else could constitute the
commission), but the Court laid down strict guidelines for future selections.

 Nandlal Khodidas Barot v. Bar Council of Gujarat, AIR 1981 SC 477

 Principle: Disciplinary proceedings by professional bodies (like Bar Councils)

have serious civil consequences. Therefore, the principles of natural justice
(notice and hearing) must be strictly followed before suspending an advocate.

Discretionary Powers-Failure to exercise a discretion.

I. Introduction to Administrative Discretion

Administrative discretion refers to the power or freedom conferred upon
administrative authorities to make choices among various alternatives based on
reason and justice, rather than on personal whims. It is essential for modern
governance to handle complex and varying situations effectively. However,
unchecked discretion can lead to arbitrariness. To maintain the Rule of Law, courts
exercise judicial control over this discretion.
The judicial control of administrative discretion is broadly exercised on two main
grounds:
1. Failure to Exercise Discretion: When the authority does not use the power
given to it.
2. Abuse of Discretion: When the power is used, but in an improper or illegal
manner.

II. Failure to Exercise Discretion

This occurs when an authority vested with discretionary power fails to apply its mind
or abdicates its responsibility. The courts consider such actions bad in law. This
failure manifests in the following forms:

1. Sub-Delegation
A discretionary power must be exercised by the specific authority to whom it is
entrusted. The maxim delegatus non potest delegare applies, meaning a delegate
cannot further delegate their power unless the statute expressly or impliedly
authorizes it.
 Principle: If an authority delegates its decision-making power to a subordinate
without legal backing, it amounts to a failure to exercise its own discretion.
 Case Law:
o Allingham v. Minister of Agriculture and Fisheries: The court held sub-
delegation unconstitutional where a minister delegated power to a
committee, which further delegated it to a sub-officer.
o Sahni Silk Mills (P) Ltd v. ESI Corporation: Delegation of power by the
Director-General to Regional Directors was held unlawful as the parent
statute did not enable such sub-delegation.

2. Imposing Fetters on Discretion (Self-Imposed Limits)

An authority must exercise its discretion in each individual case based on its merits. If
an authority lays down rigid rules or policies that prevent it from considering the
specific facts of a case, it fails to exercise discretion.
 Principle: An authority "shuts its ears" to the application if it pre-judges the
matter based on a fixed policy without looking at the unique circumstances.
 Case Law:
o Gull v. Teja Noora: The Commissioner of Police refused a license for a
carriage based on a rigid design rule without checking if the specific
carriage was fit for passengers. The court ruled this as an abuse of
authority.
o Tinkler v. Wandsworth District Board of Works: A sanitary authority’s
general rule to replace all cesspits with water closets, without evaluating
individual cases, was held improper.
o Shri Rama Sugar Industries Ltd v. State of A.P.: A dissenting opinion
noted that by adopting a rigid policy to exempt only cooperative
societies from tax, the government had "shut its ears" to the merits of
individual applications.

3. Acting Under Dictation

If an authority exercises its discretion under the instructions or orders of a superior
authority (who does not have the statutory power to decide), the decision is invalid.
The authority must act independently.
 Principle: "Passing over discretion" to another body is acting ultra vires. The
decision must be the authority's own.
 Case Law:
o Commissioner of Police v. Gordhandas Bhanji: The Police
Commissioner cancelled a cinema license on the specific direction of
the Government. The Supreme Court quashed the order, stating the
Commissioner was the statutory authority and should have exercised
his own mind.
o Mansukhlal Chauhan v. State of Gujarat: The Court held that by issuing
a direction to the Secretary to grant sanction for prosecution, the High
Court had compelled the Secretary to act only in one direction, violating
his discretion.
4. Non-Application of Mind
The authority must apply its mind to the facts and circumstances of the case. Acting
mechanically, automatically, or without due care amounts to a failure to exercise
discretion.
 Principle: Decisions cannot be taken in a "robotic" manner or by simply
signing on the dotted line prepared by subordinates.
 Case Law:
o Emperor v. Sibnath Banerji: A preventive detention order was quashed
because the Home Secretary issued it routinely on police suggestion
without personally applying his mind.
o Jagannath Misra v. State of Orissa: A detention order citing six grounds
using "or" (disjunctive) instead of "and" showed the authority was
unsure of the grounds, indicating non-application of mind.

5. Power Coupled with Duty

Sometimes, a statute uses permissive language like "may," but the context implies a
duty to act. If the conditions for exercising the power exist, the authority cannot refuse
to act arbitrarily.
 Principle: Discretion does not mean the absolute liberty to do nothing. Public
authorities have a duty to exercise power when the public interest or justice
demands it.
 Case Law:
o Julius v. Lord Bishop of Oxford: Established that enabling words like "it
shall be lawful" can imply a compulsory duty depending on the context.
o Municipal Council v. Vardichand: The court ordered a municipality to
remove a nuisance (open drains), holding that statutory power to
maintain sanitation implies a duty to do so.

III. Prevention of Abuse of Discretion

Even when an authority technically exercises its power, it may do so incorrectly or

unlawfully. This is termed "Abuse of Discretion." The courts in India interfere with
such abuse on the following grounds:

1. Mala Fide (Bad Faith)

If a discretionary power is exercised with a dishonest intention, corrupt motive, or
personal animosity, it is mala fide and invalid.
 Example: A police officer detaining a person solely to settle a personal score
or to help a rival business.
 Key Aspect: The burden of proving bad faith lies heavily on the petitioner.
2. Improper Purpose
Statutory powers are granted for a specific purpose. If the power is used for a
different, unauthorized purpose, it is ultra vires.
 Principle: Using the power of preventive detention to punish a person for a
regular crime (instead of prosecution) is an improper purpose.
  Example: Acquiring land ostensibly for a "public purpose" but actually to
benefit a private company.
3. Irrelevant / Extraneous Considerations
An authority must base its decision only on factors relevant to the objective of the
statute. Taking into account irrelevant matters or ignoring relevant ones vitiates the
decision.
 Case: Barium Chemicals Ltd. v. Company Law Board.
 Example: Dismissing a teacher because of the color of their hair (irrelevant
factor).
4. Colourable Exercise of Power
This occurs when an authority tries to do indirectly what it cannot do directly. It is a
form of fraud on the statute.
 Meaning: The action appears to be lawful and within power on the face of it
("coloured" as legal), but in reality, it falls outside the statute's scope.
5. Unreasonableness (Wednesbury Principle)
A decision is unreasonable if it is so absurd or irrational that no reasonable person
could have arrived at it.
 Origin: Associated Provincial Picture Houses v. Wednesbury Corporation.
 Indian Context: Courts use this to strike down decisions that are outrageous
in their defiance of logic or accepted moral standards.
6. Proportionality
This is a modern ground of review where courts check if the administrative action was
drastic or excessive compared to the objective it sought to achieve. It ensures the
"punishment fits the crime" and that fundamental rights are not restricted more than
necessary.

7. Violation of Natural Justice

Discretion must be exercised in compliance with procedural fairness (Article 14 and
21 of the Constitution). If a decision affecting rights is taken without a fair hearing or
is biased, it amounts to an abuse of discretion.

 Dwarka Prasad Laxmi Narain v. State of U.P., AIR 1954 SC 224

o Facts: The U.P. Coal Control Order gave the licensing authority
absolute power to grant, reject, or cancel licenses without recording
reasons.
o Judgment: The Supreme Court struck down the law under Article 19(1)
(g). It held that conferring unfettered, unguided, and absolute
discretion on an executive authority is unconstitutional.
o Significance: Established that discretion must be guided by
policy/guidelines to prevent arbitrariness.
 State of Bombay v. K.P. Krishnan, AIR 1960 SC 1223
o Facts: The Government refused to refer an industrial dispute to a
tribunal because the workers had adopted "go-slow" tactics.
o Judgment: The Court issued a writ of Mandamus. It held that the
government cannot refuse to refer a dispute on extraneous or
irrelevant grounds (like the conduct of workers) if the dispute itself is
valid.
 o Significance: Judicial control over administrative discretion when
influenced by irrelevant considerations.
 G. Sadanandan v. State of Kerala, AIR 1966 SC 1925
o Facts: A kerosene dealer was detained under the Defence of India
Rules. It was proved that the detention was actually engineered by a
police officer to eliminate a business rival.
o Judgment: The detention was quashed on the ground of Mala fides
(Bad Faith).
o Significance: Even highly discretionary powers (like preventive
detention) can be challenged if they are used for malicious purposes.
 Shri Rama Sugar Industries Ltd. v. State of Andhra Pradesh, AIR 1974 SC
1745
o Facts: The government granted a tax exemption only to cooperative
sugar factories and denied it to private ones based on a policy decision.
o Judgment: The Court upheld the decision but noted that an authority
cannot "fetter" its discretion by adopting a rigid rule that prevents it
from considering individual cases on merits. (Note: The dissenting
opinion strongly argued that rigid policy application shuts the door to
discretion).
 Express Newspapers (Pvt.) Ltd. v. Union of India, AIR 1986 SC 872
o Facts: The Lt. Governor of Delhi issued notices to re-enter (take back)
land leased to the newspaper, allegedly due to political anger against
the newspaper's reporting.
o Judgment: The Court quashed the notices, terming the action
arbitrary, mala fide, and an abuse of power.
o Significance: High-ranking officials are not immune from judicial review
if their actions are politically motivated (Mala fides).
 Ranjit Singh v. Union of India, AIR 1981 SC 461
o Facts: The petitioner's quota for manufacturing guns was reduced by
the government without proper justification.
o Judgment: The Court held that curtailment of a quota affects the right
to livelihood/trade. It cannot be done arbitrarily; the government must
show reason and relevance for the reduction.
o Significance: Administrative action affecting trade rights must be
reasonable (Article 14).

Principle of Reasonableness, the Scope of the Wednesbury

Principle, and the Doctrine of Proportionality.
1. The Principle of Reasonableness
Theoretical Basis:
At its core, the Principle of Reasonableness is derived from the "Rule of Law," which
mandates that no power is absolute. In administrative law, it operates on the premise
that when the Parliament grants a discretionary power to an official (e.g., "The
Minister may grant a license"), it intends for that power to be exercised rationally,
fairly, and for the purpose for which it was given.

 The "Rational Nexus" Test: For an action to be reasonable, there must be a

logical connection (nexus) between the action taken and the objective of the
law. If a law aims to ensure public safety, but the officer uses their power to
punish a personal rival, the nexus is broken, and the action is "unreasonable".

3. The Wednesbury Principle (Detailed Scope)

Lord Greene laid down that a court can interfere with an administrative decision only
if it is "so unreasonable that no reasonable authority could ever have come to
it."
Origin Story: Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
(1948)

To understand the principle, one must understand the facts of the case that started it
all:

 The Facts: In 1947, a local authority (Wednesbury Corporation) granted a

license to a cinema to operate on Sundays. However, they attached a
condition: No children under 15 years of age shall be admitted on Sundays,
with or without an adult.
 The Challenge: The cinema owners argued this was unreasonable. They
claimed that while the authority had the power to impose conditions, excluding
children even with parents was oppressive.
 The Judgment: Lord Greene held that the court could not substitute its own
view of what is "good" or "sensible." The court could only intervene if the
decision was "so unreasonable that no reasonable authority could ever
have come to it." Since the condition was meant to protect the moral well-
being of children (a relevant factor), it stood.
The "High Threshold" of Review

The Wednesbury test is famously difficult to satisfy. It requires more than just a "bad"
decision; it requires an absurd one.

 Example of Absurdity: Lord Greene gave the example of a teacher being

fired specifically because she had red hair. This is so irrelevant to her job that
it is "Wednesbury unreasonable".
Evolution: The "GCHQ" Case (1985)

In Council of Civil Service Unions v. Minister for the Civil Service, Lord Diplock
modernized the Wednesbury principle by classifying the grounds for judicial review
into three distinct heads:

1. Illegality: Did the decision-maker understand the law correctly?

2. Irrationality: (This is the Wednesbury test) Is the decision devoid of logic?
3. Procedural Impropriety: Was fair process followed?
The Intermediate Standard: "Anxious Scrutiny"

Before fully adopting proportionality, courts developed a stricter version of

Wednesbury called "Anxious Scrutiny" (or "Heightened Wednesbury").

 When it applies: In cases involving human rights (e.g., asylum, right to life),
courts do not just ask if the decision was "absurd." They subject the decision
to "anxious scrutiny," requiring the authority to provide a much stronger
justification than usual.

Scope and Application

The scope of this principle is quite narrow and sets a very high threshold for judicial
intervention.

 Secondary Review: The court acts as a secondary reviewer. It does not

substitute its own judgment for that of the administrator. It only checks if the
decision was "lawful."
 Grounds for Interference: Under Wednesbury, a decision is unlawful only if:
1. The authority took into account irrelevant factors.
2. The authority failed to take into account relevant factors.
3. The decision is so absurd or irrational that no sensible person would
have made it.

Limitation: The Wednesbury test is often criticized for being too weak because it
only strikes down "extreme" or "outrageous" decisions, leaving many unfair but
"strictly rational" decisions untouched.

3. The Doctrine of Proportionality (Detailed Analysis)

The Doctrine of Proportionality is a more modern and rigorous test derived from
European law (specifically German Administrative Law). It is often described with the
metaphor: "You must not use a steam hammer to crack a nut.".
Core Meaning

This doctrine checks whether the extent of the government's action is appropriate for
the objective it wants to achieve. Administrative action should not be more drastic or
intrusive than necessary.

The "Four-Pronged Test" of Proportionality

Modern courts (including the Supreme Court of India in Modern Dental College v.
State of M.P. and K.S. Puttaswamy v. Union of India) apply a structured four-part
test. If the state action fails any of these, it is unconstitutional:

1. Legitimacy (Proper Purpose):

o Does the state action have a valid, legal objective? (e.g., National
Security is a valid goal; silencing critics is not).
2. Suitability (Rational Connection):
o Are the means chosen actually capable of achieving that goal? (e.g.,
Banning internet to stop riots is suitable only if it actually stops the
riots).
3. Necessity (Least Restrictive Means):
o Crucial Step: Could the same goal be achieved by a less drastic
measure?
o Example: If the goal is to stop cheating in an exam, strip-searching
students is not necessary if metal detectors would work just as well.
4. Balancing (Proportionality Stricto Sensu):
o Does the benefit to society outweigh the harm to the individual? Even if
a measure is necessary, it might still be too harsh.
o Example: Totally banning alcohol might stop drunk driving (benefit), but
if it destroys the right to livelihood of millions (harm), the court weighs if
the balance is fair.

Application in India: The Om Kumar Distinction

In Om Kumar v. Union of India (2000), the Supreme Court clarified the dual standard
currently in use in India:

 Fundamental Rights Cases (Art 19, 21): Courts apply Proportionality. They
will act as a "Primary Reviewer" and check if the restriction is the "least
restrictive" option.
 Administrative/Disciplinary Cases (Art 14): Courts apply Wednesbury. If
an officer is punished with a pay cut for negligence, the court will not check if
the punishment was "proportionate" (unless it is shockingly disproportionate).
They will only check if the punishment was arbitrary or illegal.

Wednesbury vs. Proportionality

  Intensity: Proportionality allows for a stricter/deeper scrutiny than
Wednesbury. While Wednesbury asks "Is this decision completely absurd?",
Proportionality asks "Was this drastic measure truly necessary, or could a
milder step have worked?"
 Focus: Wednesbury focuses on the decision-making process (rationality).
Proportionality focuses on the outcome and its impact on rights.

Comparison Summary
Feature Wednesbury Principle Doctrine of Proportionality

"Is this decision so absurd "Is this measure necessary, and

Question
that no sensible person does the public benefit outweigh
Asked
would make it?" the individual harm?"

Depth of Secondary: Court defers to Primary: Court actively evaluates

Review the administrator's choice. the merits and alternatives.

The Four-Pronged Test

Key Test Irrationality / Absurdity (Legitimacy, Suitability, Necessity,
Balancing)

Fundamental rights (Privacy,

Primary Policy decisions, tenders,
Speech), Human Rights
Use non-fundamental rights.
violations.

MODULE 3
JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS AND
LIABILTIES OF STATE

Judicial Review of Administrative Actions through writs

Based on the provided articles, here is a comprehensive overview of Judicial

Review of Administrative Actions through Writs.
What is Judicial Review?
Judicial Review is the power of the judiciary to examine the constitutionality and
legality of legislative acts and administrative actions. It serves as a check and
balance to ensure that the executive and legislative branches do not exceed their
powers or violate the Constitution.
 Origin: The doctrine originated in the US case Marbury v. Madison, but in
India, it is an express provision and considered part of the "Basic Structure" of
the Constitution (Kesavananda Bharati case).
 Constitutional Basis: The power is primarily exercised under Article 32
(Supreme Court) and Article 226 (High Courts).

The 5 Prerogative Writs

Writs are "legal documents from a court of law which orders someone to do
something or not to do something". They are the primary tools for judicial review of
administrative actions.

1. Habeas Corpus ("To have the body")

 Purpose: To protect personal liberty against unlawful detention.
 Action: The court orders the detaining authority (state or private individual) to
produce the detained person in court. If the detention is found illegal (e.g., no
legal justification, procedure not followed), the person is set free.
 Scope: It is a powerful remedy under Article 21 (Right to Life and Personal
Liberty).
2. Mandamus ("We Command")
 Purpose: To compel a public authority to perform a legal duty they have failed
or refused to perform.
 Action: Issued against authorities, officers, or the government to enforce a
public duty. It can also be issued to undo a wrongful act.
 Limitation: It cannot be issued if there is no legal duty owed by the authority
to the petitioner.
3. Certiorari ("To be certified/informed")
 Purpose: Corrective in nature. It is used to quash the decision of a lower
court, tribunal, or administrative body.
 Action: The superior court calls for the records of a case to review them. If the
lower body acted without jurisdiction, in excess of jurisdiction, or violated
natural justice, their decision is quashed.
 Key Case: A.K. Kraipak v. Union of India established that Certiorari applies to
administrative actions as well as quasi-judicial ones.
4. Prohibition ("To forbid")
 Purpose: Preventive in nature. It stops a lower court or tribunal from
continuing proceedings that are in excess or abuse of their jurisdiction.
 Difference from Certiorari: Prohibition is issued during the proceedings to
stop them; Certiorari is issued after a decision is made to quash it.
5. Quo Warranto ("By what authority?")
 Purpose: To question the legal title of a person holding a public office.
 Action: The court asks the office holder to prove their authority. If they are
found ineligible or illegally appointed, they are ousted.
 Condition: The office must be of a public nature and created by the
Constitution or statute.

Grounds for Judicial Review

Courts generally intervene in administrative actions on the following grounds:
1. Illegality: The authority acted beyond its powers (ultra vires).
2. Irrationality (Wednesbury Unreasonableness): The decision is so defiant of
logic that no sensible person could have made it.
3. Procedural Impropriety: Failure to follow statutory procedures or principles of
Natural Justice.
4. Proportionality: Ensuring the administrative action is not more drastic than
necessary to achieve the desired result.

Who Can Apply? (Locus Standi)

 Traditional Rule: Only the "aggrieved person" (whose right is infringed) could
file a writ.
 Modern Approach (PIL): The strict rule of Locus Standi has been relaxed.
Public Interest Litigation (PIL) allows "public-spirited citizens" to file writs on
behalf of those who are poor or disadvantaged and cannot approach the court
themselves.
o Exception: For Habeas Corpus and Quo Warranto, any person (not
just the aggrieved) can generally file the petition.
Article 32 vs. Article 226
Feature Article 32 (Supreme Court) Article 226 (High Court)

It is a Fundamental Right itself It is a constitutional right, not a

Status
(Part III). Fundamental Right.

Can only be invoked for Can be invoked for

Scope enforcement of Fundamental Fundamental Rights AND
Rights. other legal rights.

Limited to the territorial

Covers the entire territory of
Jurisdiction jurisdiction of the State/High
India.
Court.

Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549
  Facts: The government entered the textbook publishing business without a
specific law authorizing it. Private publishers challenged this.
 Judgment: The Court held that the Executive power is co-extensive with
Legislative power. The government does not need a specific law for every act
(like trade), as long as it doesn't infringe on citizens' rights.
 Significance: Defined the scope of Executive Power in India.

 State of M.P. v. Bharat Singh, AIR 1967 SC 1170

 Facts: The government passed an executive order restricting a person's

movement (internment) without any specific legislative authority (Act).
 Judgment: The Court struck it down. It held that in India, the Executive
cannot restrict the rights of citizens without the authority of law.
 Significance: Established the Rule of Law: Every executive action that
prejudices a citizen must have legislative backing.

 Syed Yakoob v. K.S. Radha Krishanan, AIR 1964 SC 477

 Principle: This case defined the scope of the Writ of Certiorari.

 Judgment: A Writ of Certiorari can be issued only for an error of law
apparent on the face of the record or lack of jurisdiction. The High Court
acts in a supervisory capacity, not as an appellate court. It cannot review
findings of fact (e.g., weighing evidence).

 J. R. Raghupathy v. State of A. P., AIR 1988 SC 1681

 Facts: The government changed the location of Mandal headquarters,

deviating from its own administrative guidelines.
 Judgment: The Court held that administrative guidelines/instructions that
have no statutory force are not enforceable in a court of law. The court
cannot interfere with government policy unless it is arbitrary or mala fide

Exclusion of Judicial Review

Can Judicial Review be Excluded?
The short answer is No, not completely.

In India, Judicial Review is considered part of the "Basic Structure" of the Constitution
(Kesavananda Bharati v. State of Kerala, Minerva Mills v. Union of India). This means
that Parliament cannot pass any law that completely takes away the power of the
Supreme Court (Article 32) or High Courts (Article 226) to review legislative or
administrative actions.

However, there are attempts to limit this power through "Exclusion Clauses" or
"Finality Clauses" in statutes. The iPleaders article categorizes these exclusions as
follows:
1. Types of Exclusion of Judicial Review
The article classifies exclusion into four distinct categories:
 Express or Implied Exclusion:
o Express: The statute specifically states that "Civil Courts shall have no
jurisdiction" (e.g., The SARFAESI Act).
o Implied: The statute creates a special tribunal or remedy (e.g., Income
Tax Tribunals), implying that you should go there instead of a regular
court.
 Total or Partial Exclusion:
o Total: An attempt to completely bar the courts from reviewing a decision
(often unconstitutional in India).
o Partial: The statute allows review only on specific grounds or after a
certain procedure is followed.
 Conditional or Qualified Exclusion:
o Review is barred only if certain conditions are met (e.g., if the authority
acted within its jurisdiction).
 Unconditional or Unqualified Exclusion:
o A blanket ban on court intervention (rarely upheld by courts).

2. Statutory Exclusion: "Finality Clauses"

Legislatures often insert clauses in statutes declaring that an administrative decision
"shall be final" and "shall not be called in question in any court."
 The Judicial Response: Courts generally read these clauses down. They
hold that "finality" only makes the decision final on facts, meaning you cannot
appeal the facts. It does not bar the High Court or Supreme Court from
checking if the decision was illegal, irrational, or procedurally improper.
 Key Case: Dhulabhai v. State of Madhya Pradesh
o The Supreme Court held that the jurisdiction of civil courts can be
excluded only if the statute creates a separate, effective machinery (like
a Tribunal) to provide the same remedy. Even then, writ jurisdiction (Art
226/32) remains open.

3. Constitutional Exclusions
The Constitution itself excludes judicial review in specific areas to ensure the
separation of powers:
 Legislative Proceedings (Article 122 & 212): Courts cannot inquire into
proceedings of Parliament or State Legislatures on the ground of "irregularity
of procedure".
 Advice of Ministers (Article 74(2) & 163(3)): The courts cannot inquire into
what advice was tendered by the Council of Ministers to the President or
Governor. (However, courts can check the material on which the advice was
based).
 Delimitation of Constituencies (Article 329): Laws relating to the
delimitation of constituencies or allotment of seats cannot be questioned in
court.
 The Ninth Schedule (Article 31B): Originally, laws placed in the 9th
Schedule were immune from judicial review.
 o Current Status: In the I.R. Coelho (2007) judgment, the Supreme Court
ruled that any law added to the 9th Schedule after April 24, 1973, can
be reviewed if it violates the Basic Structure of the Constitution.

4. Exceptions to Exclusion
Even where a statute creates a "Finality Clause" to exclude the courts, the Judiciary
can still intervene if the administrative action falls under these categories:
1. Jurisdictional Error: If the authority acted without jurisdiction or exceeded its
powers.
2. Mala Fide: If the decision was taken in bad faith.
3. Violation of Natural Justice: If the person was not given a fair hearing.
4. Error Apparent on the Face of Record: If there is an obvious legal mistake
in the order.

JUDICIAL CONTROL OF ADMINISTRATIVE TRIBUNALS

Judicial Control of Administrative Tribunals in India is the mechanism by which

the higher judiciary (High Courts and the Supreme Court) oversees the functioning of
administrative tribunals (like the CAT, NGT, SAT) to ensure they act within their legal
boundaries and do not violate the Constitution.
This control is vital because, while tribunals are experts in their specific fields (service
matters, environment, tax), they are not full-fledged courts.

The Core Conflict: Exclusion vs. Judicial Review

When Tribunals were first introduced via the 42nd Amendment (1976), the
government added Articles 323A and 323B to the Constitution.
 The "Finality" Clause: These articles allowed Parliament to pass laws (like
the Administrative Tribunals Act, 1985) that excluded the jurisdiction of all
courts, except the Supreme Court (under Article 136).
 The Problem: This meant an aggrieved person could not go to the High Court
under Article 226/227. They had to appeal directly to the Supreme Court,
which was expensive and inaccessible for many.
The Landmark Solution: L. Chandra Kumar Case
The Supreme Court settled this debate in the landmark judgment of L. Chandra
Kumar v. Union of India (1997).
 The Ruling: The Court held that the power of Judicial Review vested in High
Courts (Article 226/227) is a part of the "Basic Structure" of the Constitution.
 The Effect:
1. Parliament cannot take away the High Court's power to review tribunal
decisions.
2. The clause in Article 323A/B that excluded High Court jurisdiction was
declared unconstitutional.
 3. New Hierarchy: You cannot go directly to the Supreme Court from a
Tribunal. You must first appeal to the Division Bench of the
concerned High Court.

Modes of Judicial Control

Today, judicial control is exercised through the following constitutional provisions:

1. High Court's Supervisory Jurisdiction (Article 227)

This is the primary check on tribunals. It is important to distinguish this from a regular
appeal.
 Nature: It is a power of "Superintendence," not a full re-trial.
 Grounds for Intervention: The High Court will intervene only if the Tribunal
has:
o Acted without jurisdiction or exceeded it.
o Violated the Principles of Natural Justice (e.g., bias, no hearing).
o Made a "patent error of law" (an obvious legal mistake visible on the
record).
 Limitation: The High Court will not correct a mere "error of fact" (e.g., if the
Tribunal believed Witness A over Witness B, the HC usually won't interfere).
2. High Court's Writ Jurisdiction (Article 226)
While Article 227 is for "superintendence," Article 226 allows the High Court to issue
writs (like Certiorari) to quash the orders of a tribunal if they are illegal or
unconstitutional.
 Note: In practice, lawyers often file a petition invoking both Articles 226 and
227.
3. Supreme Court's Special Leave Petition (Article 136)
This is a discretionary power of the Supreme Court.
 When used: After the High Court has decided on the Tribunal's order, if a
party is still aggrieved, they can approach the Supreme Court.
 Scope: It is "Special Leave," meaning it is not a right. The SC grants it only in
exceptional cases involving a substantial question of law or gross injustice.

Why is this Control Necessary?

 Rule of Law: Tribunals are often staffed by administrative members
(bureaucrats) who may not have deep legal training. Judicial control ensures
they don't misinterpret the law.
 Uniformity: Different tribunals might interpret the same law differently. High
Courts ensure consistency within the state.
 Independence: It prevents the Executive branch from having the final say in
legal disputes.

Liabilities of the State and Public Authorities in Tort,

1. Liability of Government in Tort

The book explains that as the State assumes the role of a "Social Service State," its
interactions with citizens increase, leading to more potential for conflict. The law has
shifted from the "Officer's Liability" (suing the individual official) to "State Liability"
(suing the government) to ensure that the independence of officers is not chilled by
the fear of personal litigation1111.

A. The Doctrine of Vicarious Liability

The State is a legal entity that acts through human agency. Therefore, the tortious
liability of the State is essentially the liability of the State for the wrongful acts of its
servants. This is known as Vicarious Liability2222.

B. Evolution of the Law

 English Law: Historically, the maxim "The King can do no wrong" prevailed,
granting the Crown absolute immunity. However, this was abolished by the
Crown Proceedings Act, 1947, which placed the government in the same
position as a private person3333.
 American Law: The US initially followed sovereign immunity but largely
abrogated it with the Federal Tort Claims Act, 1946, making the US
government liable in the same manner as a private individual444444444.
 Indian Law: In India, the maxim "King can do no wrong" was never accepted 5.
o Constitutional Provision (Article 300): The liability of the Union or
State Government is the same as that of the Dominion of India/East
India Company before the Constitution6. This makes the liability
historical in nature7.

C. The Distinction: Sovereign vs. Non-Sovereign Functions

The text details the struggle between two conflicting judicial views:
1. The Pre-Constitution View (The "P & O" Principle):
o Case: P. & O. Steam Navigation Co. v. Secretary of State (1861) 8.
o Principle: A distinction was drawn between Sovereign acts (acts of
state, defense) and Non-Sovereign acts (commercial-like
undertakings). The Court held the government liable for the negligence
of workmen in a dockyard (non-sovereign)9.
o Conflict: Later cases like Nobin Chunder (ganja license auction) held
that collecting tax is sovereign 10101010, while Hari Bhanji held that
immunity is limited only to "Acts of State"11.
2. The Post-Constitution Conflict:
o Vidyawati Case (1962): The Supreme Court held the State liable when
a Collector's jeep driver negligently killed a pedestrian. The Court ruled
that in a Republican/Socialist State, there is no justification for
sovereign immunity12121212.
o Kasturi Lal Case (1965): The Supreme Court watered down the
Vidyawati ruling. It held that the State was not liable for the
misappropriation of seized gold by a police officer because the power to
arrest and seize is a "Sovereign Function" delegated by the State

D. Expanding Liability (Narrowing "Sovereign" Functions)

To mitigate the injustice caused by Kasturi Lal, courts began narrowing the definition
of "Sovereign Functions":
 Famine Relief: In Shyam Sunder v. State of Rajasthan, the court held that a
truck used for famine relief was not a sovereign function14141414.
  Hospitals: In Mohd. Shafi Suleman Qazi, the Bombay High Court overruled
earlier views and held that running a hospital is not a sovereign function15151515.
 Military Transport: Transporting a hockey team or carbon dioxide gas in
military trucks was held to be non-sovereign16161616.
The modern view, as stated in N. Nagendra Rao v. State of A.P., is that the
distinction between sovereign and non-sovereign functions no longer survives, except
for primary functions like defense and administration of justice.

E. Writ Jurisdiction and Compensation (Public Law Remedy)

The text highlights a "recent judicial trend" where courts award compensation directly
through Writ Petitions (Article 32/226) for violation of Fundamental Rights (especially
Article 21):
 Rudal Shah v. State of Bihar: Awarded ₹30,000 for 14 years of illegal
detention after acquittal18.
 Bhim Singh v. State of J&K: Awarded ₹50,000 for illegal arrest preventing
an MLA from attending the Assembly19191919.
 Nilabati Behera v. State of Orissa: Awarded ₹1.5 Lakhs for custodial death,
establishing that sovereign immunity does not apply to public law
proceedings20202020.
 Chairman Railway Board v. Chandrima Das: Held the Union liable for
compensation when a foreign national was raped by Railway employees21.

Contractual Liability, and Promissory Estoppel

Liability of Government in Contract

The government enters into contracts to carry out trade, business, and other
functions. The Constitution lays down strict procedural requirements for these
contracts.

A. Constitutional Requirements (Article 299)

Under Article 299(1), three conditions must be met for a government contract to be
valid:
1. Expressed in the name of President/Governor: It must be explicitly
expressed to be made by the President (Union) or Governor (State)23.
2. Executed by an Authorized Person: It must be signed by a person
specifically authorized by the President/Governor24.
3. Written Contract: The words "expressed to be made" imply a formal written
deed. An oral contract is not binding25252525.
Note: While a formal deed is ideal, the Supreme Court has held that a valid contract
can emerge from correspondence (tenders and acceptance letters) if authorized
(Union of India v. Rallia Ram).

B. Effect of Non-Compliance
 Void and Unenforceable: If the requirements of Article 299(1) are not met,
the contract is void and cannot be enforced by or against the government27.
 No Ratification: The earlier view allowed ratification, but the current view
(Mulamchand v. State of M.P.) is that a contract violating Article 299(1) is void
ab initio and cannot be ratified28.
  Personal Immunity: Under Article 299(2), the President, Governor, or the
officer executing the contract is not personally liable.\

C. Quasi-Contractual Liability (Section 70)

If a contract is void due to non-compliance with Article 299, but the government has
received the benefit of the work, the government must pay for it under Section 70 of
the Indian Contract Act to prevent unjust enrichment.
 Case: State of W.B. v. B.K. Mandal – The government accepted a building
constructed by a contractor under an invalid contract. The Court ordered the
government to pay compensation30303030.
 Limitation: If the government derived no benefit (e.g., booking cold storage
space but not using it), no payment is required (State of U.P. v. Murari
Lal)31313131.

3. Promissory Estoppel
The doctrine of Promissory Estoppel prevents the government from backing out of a
promise if the other party has acted on it to their detriment.

A. Applicability
 Against Executive Acts: The doctrine applies even if the contract was not in
the strict form of Article 299(1). If a person alters their position based on a
government representation, the government is estopped from acting
arbitrarily32.
 Case Example: Kusheshwar Singh v. State of Bihar – A petitioner improved a
ghat based on a provisional permit. The Court held the government estopped
from cancelling the settlement with him33333333.
 Statutory Contracts: Estoppel applies to statutory bodies (like Financial
Corporations) if they breach an undertaking (Gujarat State Financial Corp. v.
Lotus Hotels).

B. Limitations (When it does NOT apply)

1. Against Statute: There can be no estoppel against a statutory provision. The
government cannot be forced to act against the law35.
2. Public Interest: The government can withdraw a promise if it is necessary for
the public interest.
3. Legislative/Sovereign Functions: Estoppel does not apply to legislative acts
or sovereign policy decisions (e.g., changing tax laws or forest policy).

C. Judicial Review in Contractual Matters (Article 14)

The text emphasizes that the government cannot act arbitrarily even in contractual
matters.
 Blacklisting: The government cannot "blacklist" a contractor without a hearing
(Erusian Equipment). It involves civil consequences and requires natural
justice.
 Fairness: Every action of the State, including granting "largess" (contracts,
licenses), must be informed by reason and free from arbitrariness (Mahabir
Auto Stores v. IOC). The State cannot choose recipients of contracts at its
sweet will; it must follow fair procedure.
 Module 4
Right to Information Act, 2005

i. Definitions, Nature and Scope of Right to Information Act

Nature and Scope:
 Objective: The Act aims to establish a practical regime for citizens to access
information under the control of public authorities. Its core goals are to
promote transparency and accountability in the working of every public
authority, contain corruption, and ensure the government and its
instrumentalities are accountable to the governed.
 Democracy: It recognizes that an informed citizenry is vital to the functioning
of a democracy.
 Extent: The Act extends to the whole of India except the State of Jammu
and Kashmir. (Note: While the provided text states this exception,
subsequent legal developments in 2019 have extended central laws to J&K,
but the source text explicitly contains this exclusion).
 Applicability: It applies to "Public Authorities" and grants rights to all
"citizens".

Important Definitions (Section 2):

 Information (Section 2(f)): "Information" covers any material in any form,
including records, documents, memos, e-mails, opinions, advices, press
releases, circulars, orders, logbooks, contracts, reports, papers, samples,
models, data material held in electronic form, and even information relating to
any private body which can be accessed by a public authority under any
other law.
 Public Authority (Section 2(h)): This refers to any authority, body, or
institution of self-government established or constituted by the Constitution, by
any law made by Parliament or State Legislature, or by notification/order of the
appropriate Government. It specifically includes bodies owned, controlled, or
substantially financed by the government, and non-Government
organisations (NGOs) substantially financed, directly or indirectly, by
appropriate Government funds.
 Record (Section 2(i)): Includes documents, manuscripts, files, microfilms,
microfiche, facsimile copies, and any material produced by a computer or
other device.
 Right to Information (Section 2(j)): This is the right to access information
held by or under the control of any public authority. It includes the right to:
o Inspect works, documents, and records.
o Take notes, extracts, or certified copies of documents or records.
o Take certified samples of material.
o Obtain information in electronic mode (diskettes, floppies, tapes,
printouts).
 Third Party (Section 2(n)): A person other than the citizen making the
request, which includes a public authority.
ii. Right to Information and Obligations of Public Authorities

The Right (Section 3):

Subject to the provisions of the Act, all citizens shall have the right to information.

Obligations of Public Authorities (Section 4):

Public authorities are mandated to maintain transparency proactively:

 Record Management: They must maintain all records duly cataloged,

indexed, and computerized where appropriate to facilitate access.
 Suo Motu Disclosure (Section 4(1)(b)): Within 120 days of the Act's
enactment, every public authority must publish 17 manuals containing details
such as:
o Particulars of its organization, functions, and duties.

o Powers and duties of officers and employees.

o Decision-making procedures, including channels of supervision.
o Rules, regulations, manuals, and records used for discharging
functions.
o A directory of officers and their remuneration/compensation.
o Budget allocations and execution of subsidy programs (including
beneficiary details).
o Names and designations of Public Information Officers.
 Policy Formulation: Publish all relevant facts while formulating important
policies or announcing decisions affecting the public.
 Reasoned Decisions: Provide reasons for administrative or quasi-judicial
decisions to the affected persons.

Designation of Officers (Section 5):

 Public authorities must designate Central/State Public Information Officers
(CPIOs/SPIOs) in all administrative units to provide information to requestors.
 Assistant Public Information Officers (APIOs) must be designated at sub-
divisional levels to receive applications/appeals and forward them to the
CPIO/SPIO or the Commission.

Request & Disposal Process (Sections 6 & 7):

 Request: Can be made in writing or electronically in English, Hindi, or the
local official language, accompanied by a fee. No reason for the request needs
to be given.
 Time Limit: Information must be provided within 30 days of receipt.
  Life or Liberty: If information concerns the life or liberty of a person, it must
be provided within 48 hours.
 Deemed Refusal: Failure to give a decision within the specified period is
treated as a refusal.
 Fees: Access fees must be reasonable; information is free for persons below
the poverty line.

Exemptions (Section 8):

Certain information is exempt from disclosure, including information that would

prejudicially affect India's sovereignty/integrity, security, strategic/economic interests,
or relations with foreign states. Other exemptions include information forbidden by
courts, breaching parliamentary privilege, commercial confidence/trade secrets,
fiduciary relationships, information endangering life/safety, and cabinet papers (until
the decision is complete).

 Public Interest Override: Even exempt information (except some categories)

may be disclosed if public interest outweighs the harm to protected interests.
 Severability (Section 10): If a record contains exempt information, access
may be provided to the part that is not exempt and can be reasonably severed.

iii. The Central and State Information Commission, its Powers and
Functions. Appeal and Penalties

Constitution of Commissions (Sections 12 & 15):

 Central Information Commission (section 12): Constituted by the Central
Government. It consists of a Chief Information Commissioner and up to 10
Central Information Commissioners.
o Appointment: By the President on the recommendation of a committee
comprising the Prime Minister (Chairperson), the Leader of
Opposition in Lok Sabha, and a Union Cabinet Minister nominated
by the PM.
 State Information Commission (Section15): Constituted by the State
Government. It consists of a State Chief Information Commissioner and up
to 10 State Information Commissioners.
o Appointment: By the Governor on the recommendation of a committee
comprising the Chief Minister, Leader of Opposition in the Legislative
Assembly, and a Cabinet Minister nominated by the CM.
 Qualifications: Persons of eminence in public life with knowledge in law,
science, technology, social service, management, journalism, mass media, or
administration. They should not be MPs/MLAs or hold an office of profit.
 Term: 5 years or until the age of 65, whichever is earlier. They are not eligible
for reappointment.

Powers and Functions (Section 18):

 Inquiry: It is the duty of the Commission to receive and inquire into complaints
from persons who have been refused access, unable to submit a request (e.g.,
no PIO appointed), charged unreasonable fees, or given misleading
information.
  Civil Court Powers: While inquiring, the Commission has the powers of a
Civil Court under the Code of Civil Procedure, 1908. This includes
summoning persons, requiring discovery/inspection of documents, receiving
evidence on affidavit, and requisitioning public records.
 Access to Records: The Commission can examine any record under the
control of a public authority; no record can be withheld from it.

Appeal (Section 19):

 First Appeal: If a person does not receive a decision within the time limit or is
aggrieved by a decision, they can prefer an appeal within 30 days to an officer
senior in rank to the CPIO/SPIO in the public authority.
 Second Appeal: A second appeal lies with the Central or State Information
Commission within 90 days if the person is aggrieved by the First Appellate
Authority's decision.
 Burden of Proof: In appeal proceedings, the onus to prove that a denial of a
request was justified lies on the PIO.
 Binding Decision: The decision of the Information Commission is binding.

Penalties (Section 20):

 Monetary Penalty: If the Commission is of the opinion that a PIO has, without
reasonable cause:
o Refused to receive an application,

o Not furnished information within the specified time,

o Malafidely denied the request,
o Knowingly given incorrect/misleading information, or
o Destroyed information/obstructed the process,

It shall impose a penalty of Rs. 250 per day until the information is
furnished, subject to a maximum of Rs. 25,000.

 Disciplinary Action: For persistent default without reasonable cause, the

Commission shall recommend disciplinary action against the PIO under the
applicable service rules.
 Opportunity to be Heard: No penalty can be imposed without giving the PIO
a reasonable opportunity of being heard.

Ombudsman: Lokpal and Lokayukta

1. Introduction to the Ombudsman System

Concept and Definition:

The modern democratic state is a "Welfare State," which requires extensive

administrative machinery. As the bureaucracy expands, officials gain discretionary
powers, often leading to maladministration, corruption, and abuse of power1. To
check this, the institution of the Ombudsman was created.

 Etymology: The term is Swedish, meaning a representative or spokesman

who acts on behalf of others2.
 Definition: An Ombudsman is an independent officer appointed by the
legislature to investigate complaints from citizens against administrative and
judicial actions3. Donald C. Rowat defines it as a unique institution to handle
complaints against administrative actions.
Global Origin:
 The system originated in Sweden in 18094.
 It subsequently spread to other Scandinavian countries like Finland, Denmark,
and Norway, and later to New Zealand and England5.
 In India, this system is institutionalized as the Lokpal (Centre) and Lokayukta
(States).

2. Evolution in India
The Need for an Independent Body:

Existing mechanisms like courts are often tedious and expensive, and Parliament
cannot directly control day-to-day administration. Therefore, an independent body
was needed to supplement existing machinery to ensure "clean administration"6.

Administrative Reforms Commission (ARC):

 The ARC, constituted in 1966, was the first to recommend the creation of a
two-tier machinery: Lokpal for the Centre (to deal with complaints against
Ministers and Secretaries) and Lokayukta for States7777.
 The ARC suggested that these institutions should be demonstrably
independent, non-political, and have the status of the highest judicial
functionaries.

Legislative Journey:
 Several attempts were made to pass the bill in 1968, 1977, 1985, 1990, 1998,
2001, and 2011, but they failed due to the dissolution of the house or lack of
consensus9.
 Following the massive "India Against Corruption" movement led by Anna
Hazare, the Lokpal and Lokayuktas Act, 2013 was finally passed. It received
the President's assent on January 1, 201410.

3. The Lokpal (Central Level)

Structure and Composition:
 Multi-member Body: Consists of a Chairperson and a maximum of 8
members11.
 Judicial Members: 50% of the members must be Judicial Members (Former
Judge of the Supreme Court or Former Chief Justice of a High Court)12.
  Non-Judicial Members: Must be eminent persons with 25 years of
experience in anti-corruption policy, public administration, finance, or law13.
 Reservation: Minimum 50% of members must be from SC/ST/OBC/Minorities
and Women14.
Qualifications for Chairperson:
 Former Chief Justice of India, OR
 Former Judge of the Supreme Court, OR
 An eminent person with impeccable integrity and 25 years of specialized
expertise15.
 Note: Justice Pinaki Chandra Ghose was appointed as the first Lokpal of
India.

Appointment Process:

The President appoints members based on the recommendation of a Selection

Committee comprising16:

1. Prime Minister (Chairperson).

2. Speaker of the Lok Sabha.
3. Leader of the Opposition in the Lok Sabha.
4. Chief Justice of India (or a Judge nominated by them).
5. One eminent jurist (nominated by the President).
Tenure:
 5 years or until the age of 70 years, whichever is earlier17.

Removal:
The Lokpal can be removed by the President after an inquiry by the Supreme Court,
only on grounds of misbehavior or incapacity. A petition for removal must be signed
by at least 100 MPs.

Jurisdiction:

The Lokpal has jurisdiction to inquire into allegations of corruption against:

1. Prime Minister: Included, but with exceptions regarding international

relations, security, public order, atomic energy, and space18.
2. Ministers and MPs: Included, but excludes anything said or any vote given in
Parliament (protected under Article 105)19.
3. Public Servants: Groups A, B, C, and D officers of the Central Government20.
4. Others: Directors/Managers of bodies financed/controlled by the Centre, and
any person involved in abetting bribery.

Powers of Lokpal:
1. Superintendence over CBI: It can give directions to the CBI. If a case is
referred to the CBI by the Lokpal, the investigating officer cannot be
transferred without Lokpal's approval22.
 2. Civil Court Powers: The Inquiry Wing has powers to summon persons,
require documents, etc.23.
3. Confiscation: Power to confiscate assets procured by means of corruption24.
4. Search and Seizure: Can authorize search and seizure operations25.
5. Suspension: Can recommend the transfer or suspension of public servants
connected with allegations.

5. The Lokayukta (State Level)

Mandate:

Under Section 63 of the Lokpal and Lokayuktas Act, 2013, every State is mandated
to establish a body known as the Lokayukta within one year of the Act's
commencement27.

Status and Variation:

 The structure is not uniform across India. Some states established Lokayuktas
long before the 2013 Act.
 Maharashtra was the first state to establish it in 1971.
 The office of the Lokayukta exists in Maharastra (1971), Bihar (1973), Uttar
Pradesh (1975), Madhya Pradesh (1981), Andhra Pradesh (1985), Himachal
Pradesh (1985), Karnataka (1985), Assam (1986), Gujarat (1986), Punjab
(1995), Delhi (1996) and Haryana (1996). Kerala is also in a process of
establishing this office.
 Some states (like J&K, Manipur, Meghalaya) had delayed appointments
significantly.
Term of Office:
The term of office for Lokayukta and Upa-Lokayukta has been fixed for five years.
Appointment:
 Appointed by the Governor of the State.
 Usually done in consultation with the Chief Justice of the High Court and the
Leader of the Opposition in the State Legislative Assembly29.
Jurisdiction:
 Investigates actions taken with the approval of Ministers, Secretaries, or other
public servants30.
 Includes local bodies and corporations in many states31

5. Limitations and Challenges

1. Delay in Appointment: Despite the Act passing in 2013, the first Lokpal was
appointed only in 2019, showing a lack of political will32.
2. Exclusion of Judiciary: The judiciary is entirely excluded from the ambit of
the Lokpal33.
3. Whistle-blower Protection: The Act does not provide concrete immunity to
whistle-blowers. In fact, provisions to penalize "false complaints" may
discourage genuine complaints34.
 4. Political Influence: The Selection Committee consists largely of political
figures, raising concerns about neutrality35.
5. Limitation Period: Complaints cannot be registered after 7 years from the
date of the offence36.
6. No Constitutional Status: Unlike the Election Commission or CAG, the
Lokpal is a statutory body, not a constitutional one37.

6. Suggestions for Improvement

 Autonomy: The institution must be financially, administratively, and legally
independent of the executive38.
 Decentralization: Powers should not be concentrated; there is a need for
multiple decentralized institutions with accountability39.
 Manpower: Adequate availability of manpower and functional autonomy is
essential for it to be effective40.