UNIT - I

1. Administrative Law and Its Reasons for Development

1.1 Introduction

Administrative Law is the branch of public law that deals with the structure, powers, duties,
and procedures of administrative authorities. Its emergence and expansion are directly linked
to the radical change in the philosophy of the state, moving away from the limited functions
of the 'laissez-faire' era to adopting a positive policy as a Welfare State. This transformation
has widened the scope of the law, as the state now regulates industrial relations, controls
production and distribution of commodities, provides social services, and takes steps
demanded by social justice.

1.2 Definitions by Various Jurists

A precise and universally satisfactory definition of Administrative Law is difficult to evolve,

as many definitions are either too broad or too narrow.

Jurist Definition/Focus Key Observation

Ivor "The law relating to the administration. It Widely accepted but criticised
Jennings determines the organisation, powers and for being too wide and not
duties of the administrative authorities." distinguishing it from
Constitutional Law.

Wade "The law relating to the control of Emphasizes the primary object:
governmental power." protecting citizens against the
abuse of governmental power,
the 'heart of the subject'.

K.C. "The law concerning the powers and Focuses on procedure and
Davis procedures of administrative agencies, judicial control, but excludes the
including especially the law governing study of substantive laws made
judicial review of administrative action." by agencies.

M.P. Jain Deals with the structure, powers, limits, A comprehensive definition
methods, procedures of administrative dealing with four aspects:

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 organs, and the legal remedies available composition, limits, procedure,
against them when rights are infringed. and control.

1.3 Nature and Scope of Administrative Law

The scope of Administrative Law is defined by three key elements: the powers of
administrative authorities, the manner of their exercise, and the remedies available against
abuse of power. The administrative process, though a "necessary evil" in progressive
societies, must be kept in check.

1.4 Key Reasons for the Growth of Administrative Law:

The rapid development of Administrative Law is a consequence of several socio-economic,

political, and systemic factors:

a) Transformative State Role (and e) End of Laissez-faire) The abandonment of the

negative policy of 'laissez-faire' (minimum state intervention) and the shift to a Welfare
State philosophy is the fundamental reason. The state is no longer confined to minimum
functions (defence and justice) but has undertaken varied positive functions (social justice,
health, education, industry control), which vastly expanded the scope of administrative
action.

b) Judicial System Limitations The ordinary judicial system proved inadequate to handle
modern disputes. It was criticised for being slow, costly, inexpert, complex, and formalistic.
Problems like employer-employee disputes required consideration of various factors beyond
literal statutory interpretation, necessitating the creation of specialized bodies like industrial
tribunals and labour courts, which possess the necessary expertise and techniques.

c) Legislative Process Inadequacy The legislature lacks the time and technique to deal
with the minute details of complex, modern legislation. It is impossible for it to lay down all
detailed rules. It sets the general policy but delegates the power to fill in the details
(subordinate legislation) to the executive to make the law workable (e.g., in matters of rate
fixing).

d) Administrative Flexibility The administrative process offers scope for experiments and
is more flexible than legislative action. A rule can be quickly made, tested, and subsequently
altered or modified within a short period if found defective, unlike rigid legislation that
requires a cumbersome process. Moreover, administrative tribunals are generally not bound
by the rules of evidence and procedure, allowing for a more practical view of complex
problems.

f) Preventive measures by administrative authorities. Administrative authorities can take

prompt preventive measures (e.g., licensing and rate fixing) rather than waiting for disputes
to arise (as regular courts must). These preventive actions are often more effective and useful

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than punishing a person after a breach has occurred. Furthermore, they can take effective
enforcement steps like suspension/revocation of licenses or destruction of contaminated
articles, remedies not generally available through ordinary courts.

1.5 Conclusion

The growth of Administrative Law is an essential by-product of the modern democratic

state's commitment to social and economic justice. While the transformation of the state's role
and the inherent limitations of the legislature and judiciary made the delegation of power
inevitable, Administrative Law provides the crucial mechanisms to ensure that this vast
administrative power remains within legal bounds and does not lead to a 'Totalitarian State.' It
is thus indispensable for maintaining the Rule of Law in a modern welfare regime.

2. Rule of Law

2.1 Introduction

The doctrine of the Rule of Law is one of the basic principles of the English Constitution and
forms the entire basis of Administrative Law. It was originated by Sir Edward Coke (Chief
Justice in James I's reign), who maintained the supremacy of Law over the executive. A.V.
Dicey systematically developed this theory in his classic work, The Law and the Constitution,
published in 1885. This doctrine is now accepted in the Constitutions of India and the U.S.A.

2.2 Nature, Meaning, and Definition & 2.3 Principles of the Rule of Law

According to Dicey, the Rule of Law is characterized by three fundamental, interlinked

principles:

1.​ Supremacy of Law

○​ It means the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power or wide discretionary power.
○​ It excludes the existence of arbitrariness. As Dicey states, "Wherever there is
discretion, there is room for arbitrariness."
○​ The principle implies that no man can be arrested, punished, or made to suffer
except by due process of law and for a breach of law established before the
ordinary courts.
2.​ Equality before Law
○​ This principle mandates the equal subjection of all classes to the ordinary law
of the land, administered by the ordinary law courts.
○​ All persons are subject to one and the same law, ensuring no extraordinary
tribunals or special courts for government officers. Dicey specifically
criticized the French system of droit administratif (administrative law and
courts) as a negation of equality.

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 3.​ Predominance of Legal Spirit (Judge-made Constitution)
○​ In England, rights such as personal liberty are not guaranteed merely by a
written Constitution but are the result of judicial decisions in concrete cases
(e.g., Habeas Corpus Acts).
○​ The Constitution, in this view, is not the source but the consequence of the
rights of individuals, as defined and enforced by the courts.

2.4 Importance

The doctrine of the Rule of Law proved to be an effective instrument in confining

administrative authorities within their legal limits. It serves as a touchstone to judge and
test administrative actions and puts an effective control over the increase of executive
power. In modern times, it is identified with the concept of citizen rights and is invoked to
control the oppressive, capricious, and arbitrary exercise of administrative powers.

2.5 Cases

a) ADM Jabalpur vs. Shiv Kant Shukla (1976) (Habeas Corpus Case)

●​ Issue: Whether the Rule of Law, giving the right to life and personal liberty, existed
in India apart from the constitutional mandate of Article 21, when the enforcement of
that Article was suspended during the Emergency.
●​ Majority View: Held that the Constitution is the mandate and the rule of law, and
there is no other rule of law that can run counter to the constitutional rule of law. It
observed that Article 21 is "our rule of law regarding life and liberty."
●​ Dissent (Khanna, J.): Held that the Rule of Law is the antithesis of arbitrariness
and exists in all civilized societies. Even in the absence of Article 21, the state has no
power to deprive a person of life or liberty without the authority of law.

b) Indira Gandhi vs. Raj Narain (1975) The Supreme Court held that the principle of
judicial review is embodied in the Constitution of India and is treated as the basic structure
of the Constitution. The power of judicial review (an aspect of the Rule of Law) ensures that
the actions of the legislature, executive, and judiciary are in accordance with the Constitution.

2.7 Conclusion

Dicey's formulation of the Rule of Law, despite later criticisms regarding the feasibility of
eliminating all discretionary power, provided the essential foundation for administrative
accountability. Under the Indian Constitution, the Rule of Law is accepted as a basic
structure and is secured by explicit provisions (Articles 14, 21, 32, 226) ensuring the
supremacy of the Constitution and judicial review over administrative action. However, the
ADM Jabalpur case remains a crucial point of debate, highlighting the fragility of even
fundamental rights when constitutional safeguards are suspended.

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3. Separation of Powers

3.1 Introduction

The doctrine of Separation of Powers (SoP) is a fundamental constitutional principle that

has had an intimate impact on the development of Administrative Law, particularly in the
U.S.A. The theory serves as a principal doctrinal barrier to the development of the
administrative process, requiring a balance between constitutional theory and practical
governance needs.

3.2 Meaning, Nature, and Its Need

The doctrine is based on the general acceptance of three main governmental functions and
organs:

Function Organ

Legislative Legislature

Executive Executive

Judicial Judiciary

According to the theory, these three powers and functions must always be kept separate and
be exercised by separate organs of the Government.

Need (Montesquieu's Doctrine): In 1748, Montesquieu systematically formulated this

doctrine in The Spirit of the Laws, stating that the union of powers leads to tyranny:

"When the legislative and executive powers are united in the same person, or in
the same body of magistrates, there can be no liberty... Again, there is no liberty
if the judicial power be not separated from the legislative and the executive."

The fundamental object behind SoP is the liberty and freedom of an individual. The
division creates "checks and balances" necessary to prevent the abuse of the executive's
enormous powers.

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Nature (Defects/Limitations): In its strict sense, SoP is undesirable and impracticable due
to several defects:

1.​ Functional Overlap: The three functions are not clearly distinguishable or in
watertight compartments.
2.​ Impracticability: A strict separation makes modern government impossible, as the
state needs quick cooperation to solve complex socio-economic problems.
3.​ No Absolute Separation: Separation of powers can only be relative, not absolute,
allowing for incidental functions.

3.3 SoP Practice in the USA, England, and India

Country Practice Nature of Separation

USA Adopted strictly by Strict Theory (Relaxed in Practice): While checks

the Founding and balances are paramount, the growth of the
Fathers. Legislative, administrative process has relaxed rigours, allowing
Executive, and agencies to combine functions (e.g., as legislator,
Judicial powers are prosecutor, judge).
vested separately.

England Not accepted in its Integration of Powers: Powers are often shared (e.g.,
strict sense. Theory Lord Chancellor holds judicial, legislative, and
of integration of executive roles). Cabinet members are part of both the
powers adopted. Legislature and the Executive.

India The doctrine is not Functional Differentiation: While the Constitution

accepted in its vests Executive power in the President and Legislative
absolute rigidity. power in Parliament, there is no corresponding absolute
provision for judicial power. The three organs'
functions are "sufficiently differentiated" but overlap
(e.g., the President has wide legislative and judicial
powers; Parliament exercises judicial functions).

3.4 Role of the Judiciary in SOP

The most important aspect of the SoP doctrine is judicial independence from the other two
organs. The judiciary must be impartial and independent to serve as a guarantor of liberty and
check the executive.

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In India, the Supreme Court has declared that while the doctrine is not rigid, the Constitution
does not contemplate the assumption, by one organ or part of the State, of functions that
essentially belong to another. The judiciary's role is to ensure that the three major
instruments of power (Legislature, Executive, Judiciary) function within the spheres allotted
to them.

3.5 Cases

a) Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) The Supreme Court observed
that the Indian Constitution has not recognised the doctrine of separation of powers in its
absolute rigidity. However, the functions of the different branches have been "sufficiently
differentiated," and the Constitution does not contemplate one organ assuming the essential
functions of another.

b) Asif Hameed v. State of J & K (1989) This case (though not detailed) likely reiterates the
Indian position that while the doctrine is part of the basic structure, it is applied with
flexibility, focusing on checks and balances.

c) Queen v. Burah (1878) Though primarily about delegated legislation, the Privy Council's
ruling established that the Indian Legislature was not a mere agent/delegate of the Imperial
Parliament but had plenary powers of legislation. This relates to SoP by defining the
legislative competence of the Indian body.

d) Municipal Corporation of Delhi vs. Birla Cotton Spinning and Weaving Mills LTD.
(1969) & e) Re Delhi laws case (1951) These cases deal with the limits of legislative
delegation, which is a direct consequence of SoP. They established that while delegation of
non-essential functions is necessary, the legislature must lay down the policy, principles, or
standards for the delegate's guidance to prevent abdication of its essential legislative
function.

3.6 Conclusion

The doctrine of Separation of Powers is a cornerstone of the constitutional structure, though

in no modern state, including India, is it implemented in its absolute rigidity. Its enduring
importance lies in ensuring a system of checks and balances where judicial independence is
maintained, safeguarding individual liberty against the concentration and arbitrary use of
governmental power by the executive. The Indian approach adopts functional differentiation,
allowing for necessary overlaps while preventing any one organ from usurping the essential
functions of another.

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4. Classification of Functions

4.1 Introduction

Traditionally, governmental functions are divided into three classes: legislative, executive (or
administrative), and judicial. However, the executive today performs variegated functions,
including rule-making (quasi-legislative) and adjudication (quasi-judicial). The line between
these functions is thin, and often a single proceeding may combine various aspects of all
three.

4.2 Need for Classification

A precise classification of administrative action (as purely administrative, quasi-judicial, or

quasi-legislative) is essential because many legal consequences flow from it:

1.​ Compliance with Natural Justice: If the function is judicial or quasi-judicial, the
authority must follow the principles of natural justice and is subject to writs like
certiorari or prohibition. If it is a purely administrative function, this is not
automatically required.
2.​ Publication: If the action is legislative, requirements of publication or laying before
the legislature must be complied with.
3.​ Delegation: Administrative functions are generally delegable, but judicial functions
usually cannot be.
4.​ Grounds for Challenge: A legislative act may not be held invalid on the ground of
unreasonableness, but an administrative decision can be.

4.3 Legislative and Administrative Functions Discretion

The distinction between legislative and administrative functions is difficult. However,

different tests are applied:

●​ Generality and Prospectivity: A legislative function is characterised by its

generality and prospectivity. It looks to the future and creates a new rule of general
applicability, prescribing a future pattern of conduct.
●​ Specificity and Application: An administrative act is typically the application of a
general rule to a particular case or is issued to specific persons.

If a function is held to be legislative, there is generally no right to a notice and hearing, as

"the rules of natural justice do not run in the sphere of legislation, primary or delegated."

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4.4 Administrative and Quasi-Judicial Functions Discretion

A quasi-judicial function stands midway between a judicial function and an administrative

function. The real distinction lies in the existence of a duty to act judicially.

a) Lis

●​ A 'lis' exists "if a statute empowers an authority to decide disputes arising out of
a claim made by one party under the statute, which claim is opposed by another
party and to determine the respective rights of the contesting parties."
●​ The presence of a 'lis inter partes' (dispute between two sides) is one of the major
grounds on which a function can be called quasi-judicial.

b) Duty to Act Judicially

●​ The real test is whether the statutory authority has a duty to act judicially. This duty
arises if there is an express provision in the statute, or it can be inferred by necessary
implication.
●​ The duty to act judicially is implicit if there is power to decide and determine to the
prejudice of a person.
●​ In modern law, the duty is spelt out from "the nature of the power conferred, the
manner of exercising it and its impact on the rights of the person affected."
●​ The requirement of acting judicially, in essence, is nothing but a requirement to act
justly and fairly and not arbitrarily or capriciously.

c) Object With the increase of administrative power, the object of distinguishing functions is
to provide guidelines for just exercise of power and to prevent the abuse of power so that it
does not become a 'new despotism'. The classification dictates whether the principles of
natural justice must be observed.

4.5 Cases:

Case Principle Established/Held Function

Classification

a) Province of Held that the government's function of Administrative

Bombay v. requisitioning property was not quasi-judicial
Khushaldas S. because the decision was based on subjective
Advani (1950) satisfaction ("if in the opinion of the
Government") and the authority was not
required to act judicially.

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b) A.K. Kraipak Held that the line between administrative and Duty to act
v. Union of India quasi-judicial is thin and being gradually judicially is
(1970) obliterated. What matters is the nature of the implicit
power and its impact on rights, reiterating
that the duty to act judicially can be inferred.

c) Ridge v. Historic House of Lords decision. Overruled Quasi-Judicial

Baldwin (1964) earlier narrow interpretation, holding that the (Action was
duty to act judicially arises whenever an disciplinary
authority has the power to determine the dismissal)
rights of an individual, making the duty
implicit.

d) Maneka Reiterated that the duty to act judicially need Duty to act
Gandhi v. Union not be superadded and may be spelt out from judicially is
of India (1978) the nature of the power conferred, the implicit
manner of exercising it, and its impact on
the rights of the person affected.

e) Nakkuda Ali v. (The Privy Council decision later overruled by Administrative

Jayaratne (1951) Ridge v. Baldwin.) Held that the Controller of (Pre-1964
Textiles' action to cancel a licence was an interpretation)
executive act of withdrawal of privilege, and
the authority was not under a duty to act
judicially.

f) Radheshyam v. Held that the power to supersede a Administrative

State of M.P municipality for a temporary period under (Majority view)
(1955) Section 53-A was administrative because the
section did not expressly provide for a
reasonable opportunity, unlike another section
(57). (Subba Rao, J. dissented).

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4.6 Conclusion

The classification of administrative functions is not a theoretical exercise but a practical

necessity that determines the extent of legal control. While the test of lis remains important,
the modern trend, solidified by cases like A.K. Kraipak and Maneka Gandhi, has shifted
towards a functional and objective test. The decisive factor is whether the administrative
action has the potential to prejudice or affect the rights of individuals, thereby imposing an
implicit duty to act justly and fairly (judicially), regardless of the authority's label.

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UNIT - II

1. Delegated Legislation

1.1. Introduction

According to the traditional theory, law-making is the exclusive function of the legislature,
with the executive merely administering the law. However, in modern governance, the
executive performs many legislative functions. This practice, where the legislature entrusts
law-making power to organs other than itself, is known as Delegated Legislation (DL). Due
to several factors, particularly the transition to a Welfare State, the rapid growth of
administrative legislation has become essential and inevitable.

1.2. Meaning, Nature, and Definition

The term 'delegated legislation' is used in two senses:

1.​ Exercise of Power: The exercise by a subordinate agency of the legislative power
delegated to it by the legislature. The authority making the law is subordinate to the
legislature, and the law is called 'subordinate legislation'.
2.​ The Rules Themselves: The subsidiary rules themselves which are made by the
subordinate authority (e.g., rules, regulations, bye-laws, orders).

The statute enacted by the legislature conferring this power is the 'parent Act' or 'primary
law,' and the rules made by the executive are the 'subordinate laws' or 'child legislation.'

As Justice Mukherjea observed, "Delegated legislation is an expression which covers a

multitude of confusion. It is an excuse for the legislators, a shield for the administrators
and a provocation to the constitutional jurists..."

1.3. Reasons for the Development of DL

Many factors are responsible for the rapid, indispensable growth of delegated legislation in
every modern democratic and welfare State:

1.​ Pressure upon Parliamentary Time: The volume of necessary legislation is too
great for the legislature to discuss in detail. The legislature sets the general policy
(the skeleton) and empowers the executive to fill in the details ('giving flesh and
blood to the skeleton').
2.​ Technicality: Subject-matter is often highly technical (e.g., gas, atomic energy) and
requires the assistance and legislative power of experts, not common politicians.
3.​ Flexibility: DL permits rapid utilization of experience and swift implementation of
necessary changes to meet unforeseen situations or contingencies, which is impossible
via the slow legislative process.
4.​ Experiment: DL allows the executive to experiment with rules, try them for a
period, and alter them quickly if found defective (e.g., road traffic matters).

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 5.​ Emergency: In times of emergency (e.g., war, epidemics, inflation), quick remedial
action is necessary, which delegated legislation provides.
6.​ Complexity of Modern Administration: The complexity and expansion of state
functions into economic and social spheres necessitate giving wide powers to
authorities to control and regulate private trade and business.

1.4. Forms of Delegation

Delegated legislation may take various forms, including:

●​ Rules
●​ Regulations
●​ Bye-laws
●​ Notifications
●​ Schemes
●​ Orders
●​ Ordinances
●​ Directions
●​ Henry VIII Clause (a contentious clause for removal of difficulties by modifying the
parent Act itself).

1.5. Types of Delegation:

Delegated legislation may be broadly classified based on different principles:

a) Title-based classification: Based on the official title of the instrument (Rules,

Regulations, Bye-laws, Notifications, etc.).

b) Discretion-based classification: Distinguished by the amount of discretion conferred on

the executive. For instance, "conditional" or "contingent" legislation where the Act is
complete, but its operation is contingent upon the executive fulfilling certain defined
conditions.

c) Purpose-based classification: Based on the nature and extent of the power conferred (e.g.,
to fix the appointed day, supply details, extend provisions, suspend/modify provisions,
prescribe punishments).

d) Authority-based classification: Based on the authority that makes the law. Includes
sub-delegation, where a delegate further delegates the power conferred on it to a subordinate
agency.

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1.6. Cases

Case Principle/Issue in DL Outcome

b) Queen vs. DL in pre-Constitution Upheld: Delegation was

Burah (1878) India/Conditional Legislation. conditional legislation (power to
Indian Legislature was not a extend the Act upon fulfilling
mere delegate of the Imperial conditions), not excessive.
Parliament, having plenary
powers.

a) Panama Delegation in the U.S.A. Invalid: Delegation was

Refining Co., V (Doctrine of Separation of unconstitutional due to lack of
Ryan (Hot Oil Powers). The Act (NIRA) standard/policy.
Case) failed to declare a legislative
policy or standard for the
President's action.

c) Re Delhi laws First major DL case in Valid (with limits): Permitted

case (1951) post-Constitution India. delegation but held that the
Addressed limits of delegation executive cannot be authorised
by Indian Legislatures. to repeal a law in force or change
the essential legislative policy.

d) Harishankar Validity of broad power under Valid: Broad delegation was

Bagla v State of Essential Supplies Act. sanctioned as sufficient legislative
M.P (1954) Legislative policy was laid policy was found.
down in the Act.

e) Edward Mills V Delegation to add industries to Valid: The legislative policy (to
State of Ajmer a schedule under the Minimum fix minimum wages and avoid
(1955) Wages Act based on the exploitation) was apparent and
Government's 'opinion'. served as sufficient guidance.

f) Gwalior Rayon Delegation of power to fix the Valid: Held that sufficient
Silk Mfg. Co V rate of Central Sales Tax by guidance was provided, though the
Asst adopting the State rate. Court stressed that the legislature
Commissioner must lay down a policy/principle
(1974) for the delegate.

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 g) Jalan Trading Validity of the Henry VIII Ultra Vires (Majority):
Co v Mill clause (Section 37 of the Delegation was excessive as the
Mazdoor Sabha Payment of Bonus Act) to executive was made the sole judge
(1967) remove difficulties, making the of difficulty/doubt and the order
executive order final. was made 'final', amounting to
unpermitted legislative delegation.

1.7. Conclusion

Delegated legislation is an integral and unavoidable feature of modern governance, driven by

the complexity of a Welfare State and the practical constraints on the legislature. While courts
have consistently upheld the practice, Indian law (especially post-Re Delhi Laws) insists that
the legislature must perform the essential legislative function (laying down policy and
standards) and prevent abdication of its authority. Judicial review serves as the primary
safeguard, ensuring the subordinate legislation remains intra vires the Constitution and the
parent Act.

2. Legislative Controls

2.1. Introduction to Controls

While the delegation of legislative power to the Executive has become inevitable due to the
complexities of modern governance, there is an inherent danger of abuse of this power. The
legislature, as the principal that grants this legislative power, must ensure that its agent, the
Executive, exercises the power properly and is accountable.

2.2. Object of Legislative Control

The underlying object of parliamentary (legislative) control is twofold:

1.​ To keep watch over the rule-making authorities and supervise the actual exercise
of delegated legislative power.
2.​ To provide an opportunity to criticize the rule-making authorities if there is an
abuse or misuse of power on their part.

2.3. Modes – Laying on the table and Scrutiny Committees

Legislative control over delegated legislation is effectively exercised through two primary
modes:

1.​ Laying on the Table: The procedure of placing the rules before the House(s) of the
Legislature.
2.​ Scrutiny Committees: Specialized bodies established within the Legislature to
scrutinize the delegated legislation.

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2.4. Laying on the Table – Object, Mandatory or Directory, Effects of Laying Down and
Failure of Laying Down.

Object of Laying on the Table:

The procedure of 'Laying on the Table' is followed in almost all Commonwealth countries
and serves two key purposes:

1.​ Information: It informs the legislature about what rules have been made by the
executive authorities.
2.​ Challenge/Supervision: It provides an opportunity for legislators to question or
challenge the rules already made or proposed to be made. This process, often called a
'safety-valve,' allows the legislature to exercise supervision, check, and control over
executive rule-making power.

Mandatory or Directory:

The question of whether a laying provision is mandatory or directory depends on the terms
of the specific laying clause.

●​ If the provision relating to laying is a condition precedent to the rules coming into
force, the requirement is held to be mandatory, and the rules do not come into effect
until they are laid.
●​ In case of a 'negative clause' (where rules come into operation immediately but cease
to operate if disapproved), the provision of laying is generally construed as directory.

Effects of Laying Down:

●​ Laying does not automatically confer on the rules a status equal to the Act in the
absence of a specific provision in the parent statute.
●​ The laying procedure often allows for modification: "After the rules are laid before
the Legislative Assembly, they may be altered or amended and it is then that the rules
as amended become effective."

Failure of Laying Down:

The consequences of failure to lay depend entirely on the terms of the specific clause:

●​ If laying is a condition precedent, failure to lay invalidates the rules.

●​ In the case of a 'negative clause,' where rules become operative immediately, the
failure to lay is often construed as a directory requirement and does not invalidate
the rules ex post facto (as seen in Jan Mohd. v. State of Gujarat).

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2.5. Scrutiny Committees – Object and Functions

Object:

Laying rules on the table alone is often insufficient, as mere laying is not useful unless the
rules are properly studied and scrutinized. Scrutiny Committees are established with a view
to strengthening Parliamentary control over delegated legislation. In India, there are two
such bodies: the Lok Sabha Committee on Subordinate Legislation and the Rajya Sabha
Committee on Subordinate Legislation.

Functions:

The core function of these Committees is 'to scrutinise and report to the respective Houses
whether the powers to make regulations, rules, sub-rules, bye-laws, etc., conferred by
the Constitution or delegated by Parliament are being properly exercised within such
delegation.' They essentially act as "watch-dogs" to identify any invasion on the legislative
premises.

The Indian Committee has made several recommendations to safeguard against abuse,
including: ensuring the power of judicial review is not curtailed by rules, preventing the
imposition of taxes by rules, prohibiting retrospective operation unless expressly conferred,
and ensuring the legislative policy is laid down by the Legislature.

2.6. Conclusion

Parliamentary control, particularly through the mechanism of Laying and Scrutiny

Committees, is vital for maintaining democratic accountability over the Executive. While the
efficacy of this control has been debated (with critics calling it "shadowy and unreal"), these
modes constitute the principal legislative safeguards, ensuring that the necessary power
delegated to the administration is exercised within the intended limits and is subject to the
continuous supervision of the elected representatives.

3. Judicial Controls – Procedural Ultra vires

3.1. Introduction on Controls

The problem with delegated legislation is not whether it is desirable, but rather "what
controls and safeguards can and ought to be introduced" to ensure that the rule-making
power conferred on the administration is not misused or misapplied. Controls are applied at
two stages: first, when the legislature confers power (discussed in Lecture 4), and second,
when the executive misuses it. Judicial control is one of the most important safeguards.

3.2. Judicial Control - and its Types (Substantive and Procedural)

Delegated legislation remains within the scope of judicial review. Courts test the validity of
delegated legislation mainly by applying two tests:

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 1.​ Substantive Ultra Vires: This occurs when the delegated legislation goes beyond the
scope of the authority conferred by the parent statute or by the Constitution. (Ultra
vires means "beyond powers").
2.​ Procedural Ultra Vires: This occurs when the subordinate legislation fails to
comply with the procedural requirements prescribed by the parent Act or the
general law.

3.3. What is Procedural Ultra Vires (Definition and Principle)

Definition and Principle: Procedural ultra vires occurs when the rule-making authority fails
to comply with certain procedural requirements prescribed by the parent Act or by the general
law, such as holding consultations, publishing draft rules, or laying them before Parliament.

It is incumbent on the delegate to comply with these requirements, and failure to do so may
invalidate the rules. However, failure to observe procedural requirements does not
necessarily and always invalidate the rules, as there is a distinction between mandatory and
directory requirements.

3.4. Requirements (Publication and Consultation)

The two essential procedural requirements for delegated legislation are:

1.​ Publication.
2.​ Consultation.

3.5. Publication - Meaning

Meaning: It is a fundamental principle of law that the public must have access to the law
and be given an opportunity to know the law (based on the maxim: Ignorantia juris non
excusat). Since delegated legislation is often made unobtrusively by a Minister or official,
promulgation or publication of some reasonable sort is essential to a civilized society. In
India, there is no statutory provision requiring publication of all delegated legislation, but
courts have treated some sort of publication as an essential requirement for its validity.

a) Mode of Publication The mode, manner, or method of publication may be specified in the
parent statute (e.g., in the Official Gazette). Even if the requirement of publication is
mandatory, the mode or manner of publication may be held to be directory, and strict
compliance thereof may not be insisted upon, provided there is substantial compliance.

b) Effect of Publication Once the delegated legislation is promulgated or published, it takes

effect from the date of such promulgation or publication, and not from any prior date,
unless retrospective power is expressly or by necessary implication conferred on the
rule-making authority.

c) Defect in Publication A provision that an act shall not be questioned merely on the ground
of any defect or irregularity, not affecting the merits of the case, is sometimes included. The

18
Supreme Court has held that the failure of proper publication does not invalidate the act if it
is covered by such an 'Omnibus Curative Clause' (e.g., in Srinivasan v. State of Karnataka).

3.6. Consultation - Meaning and Types

Meaning: The term 'consult' implies a conference of two or more persons or an impact of
two or more minds on a topic to evolve a correct or satisfactory solution. It requires a full
and effective deliberation, exchange of mutual viewpoints, and meeting of minds on
material facts. It is regarded as a valuable safeguard against the misuse of legislative power
by the executive authorities.

Types: Consultation can take various forms, which some statutes specifically provide for:

●​ Official consultation (e.g., consulting the Reserve Bank of India).

●​ Consultation with Statutory Bodies (e.g., consulting the Drugs Technical Advisory
Board).
●​ Consultation with Advisory Bodies (bodies constituted to assist the government).
●​ Draft Rules by Affected Interests (power conferred directly on affected interests,
like mine owners).

a) Mandatory or Directory The position in India regarding consultation provisions is not

categorical. In some cases, it has been held to be directory (e.g., Ibrahim v. Regional
Transport Authority). However, in other cases, it has been held to be mandatory (e.g.,
consultation with Mining Boards under the Mines Act).

b) Failure to Consult Failure to consult an interested party is sometimes regarded as

mandatory, as the Minister must supply sufficient information and a sufficient opportunity
must be given to the local authority to tender advice.

3.7. Cases

Case Principle Established/Held Procedural Element

a) Harla v State of Held that the law was invalid because Publication (Mandatory)
Rajasthan it was neither published nor made
known to the public. Promulgation
or publication of some reasonable
sort is essential to a civilized man.

b) Narendra Rules made under the Essential Publication (Essential)

Kumar v. Union of Commodities Act, 1955, were
India required to be notified in the Official
Gazette, but the principles applied by

19
 the licensing authority were not
notified.

c) Govinda lal The parent Act required a Publication (Mandatory):

Chhangalal patel notification to be published in The requirement of
V Agriculture Gujarati in a newspaper circulated in publication in Gujarati was
produce market that area, but this was not complied mandatory and failure to
Committee with. comply invalidated the
notification.

d) Pankaj Jain A customs duty notification was Effect of Publication: Rules

Agencies v. Union published in the Official Gazette on take effect from the date of
of India February 13, 1986. The rules came publication, not a prior date.
into force when published, not from
a prior date.

e) Srinivasan V. The court held that the failure of Defect in Publication:

State of proper publication did not invalidate Curative clauses may save
Karnataka the act, referring to the 'Omnibus acts despite publication
Curative Clause'. defects.

3.8. Conclusion

Judicial control through procedural ultra vires acts as a powerful check on administrative
rule-making. The requirements of publication (to ensure the public knows the law) and
consultation (to infuse democratic norms and balance individual interests with administrative
exigency) ensure that the exercise of delegated power is not merely lawful in substance but
also fair and transparent in process. Failure to comply with mandatory procedural
requirements, especially those relating to notice and promulgation, will render the delegated
legislation void.

4. Judicial Controls – Substantive Ultra Vires

4.1. Introduction on Controls

Judicial control is a major safeguard against the misuse or abuse of legislative power
conferred upon the executive. Since the administrative process has become inevitable, the
focus shifts to ensuring that the power exercised is not only derived from the law but is also
exercised within the permissible legal boundaries. Delegated legislation remains within the
scope of judicial review.

20
4.2. Judicial Control - and its Types (Substantive and Procedural)

Courts test the validity of delegated legislation mainly by applying two tests:

1.​ Substantive Ultra Vires: This tests whether the delegate acted beyond the scope of
the authority conferred by the parent statute or the Constitution.
2.​ Procedural Ultra Vires: This tests whether the delegate complied with the
procedural requirements (like publication or consultation) prescribed by law.

4.3. What is Substantive Ultra Vires (Meaning and Principle)

Meaning and Principle: Substantive ultra vires means that the delegated legislation goes
beyond the scope of the authority conferred on it by the parent statute or by the
Constitution.

The underlying principle is that power delegated by a statute is limited by its terms and
subordinate to its objects. It is a fundamental legal principle that a public authority cannot
act outside its powers (ultra vires). All decisions of the delegate must be in harmony with
the Constitution, the enabling legislation, and other general laws. If the rules are manifestly
unjust, oppressive, or directed to an unauthorised end, the court may hold them "unreasonable
and ultra vires."

4.4. Grounds for Substantive Ultra Vires

A delegated legislation may be held invalid on the ground of substantive ultra vires in the
following circumstances (among others):

1.​ Where the Parent Act is Unconstitutional.

2.​ Where delegated legislation is Inconsistent with the Parent Act or General Law.
3.​ Where delegated legislation is Unconstitutional (e.g., violating Fundamental
Rights).
4.​ Mala Fide (Bad Faith) or improper motive in exercising power.
5.​ Sub-Delegation of essential functions.
6.​ Exclusion of Judicial Review (if attempted by the delegate).
7.​ Retrospective Operation without express authority.

4.5. Cases

Case Ground for Challenge Principle Established/Held

1. Where the parent

act is
unconstitutional

21
Chintamanrao vs. Parent Act authorised DL Ultra Vires: The parent Act
State of M.P. (1950) Deputy Commissioner to itself was held ultra vires the
prohibit bidi manufacture in Constitution (Fundamental Rights);
certain areas, violating hence, the order passed under it
Article 19(1)(g) (right to was necessarily bad.
occupation).

2. Where delegated
legislation is
inconsistent with the
parent act

Municipal Parent Act allowed charge DL Ultra Vires: The rule was held
Corporation of only for water supplied and ultra vires and inconsistent with the
Greater Bombay vs. consumed. The Rule, Parent Act's scope, as it went
Nagpal Printing however, authorised a levy beyond the authority granted.
Mills (1988) based on a minimum
quantity irrespective of
consumption.

3. Where delegated
legislation is
unconstitutional

Dwarka Prasad vs. U.P. Coal Control Order, DL Ultra Vires: The Order was
State of U.P. (1954) 1953 (a DL instrument) was held ultra vires by the Supreme
challenged. Court for being violative of Article
19(1)(g) of the Constitution
(Fundamental Rights), even though
the Parent Act was constitutional.

4. Mala fide

D.C. Wadhwa vs. Challenged the practice of Action Ultra Vires: The Supreme
State of Bihar (1987) the Executive repeatedly Court disapproved of this practice,
issuing Ordinances without holding it to be an arbitrary and
legislative sanction. colourable exercise of power, and

22
 a "fraud on the constitutional
provision."

5. Sub-Delegation

Ajaib Singh v. Power of detention was DL Ultra Vires: Sub-delegation to

Gurubachan Singh authorised to be exercised an officer below the stipulated
(1965) by an authority not below rank was illegal.
the rank of District
Magistrate. The power was
delegated to an Additional
District Magistrate.

Blackpool Sub-delegate (Corporation) Action Ultra Vires: The

Corporation v. acted beyond the conditions sub-delegate acted beyond the
Locker (1948) imposed by the delegate scope of the power conferred on
(Minister's circular), it by the delegate.
requisitioning furniture
which was prohibited.

Gullapalli Minister, empowered to hear Action Ultra Vires: Judicial power

Nageshwar Rao v. parties and pass orders (a cannot ordinarily be delegated. "If
A.P.S.R.T.C. (1959) quasi-judicial function), one person hears and another
delegated the function of decides, personal hearing becomes
hearing to his Secretary. an empty formality."

6. Exclusion of
Judicial review

Empress vs. Burah (Note: The core issue of Principle: Clauses attempting to
(1878) ouster clauses is discussed exclude court jurisdiction (e.g.,
generally in the text, not this "shall have effect as if enacted in
specific case.) the Act") do not preclude judicial
consideration of vires. The rule
remains subordinate and open to
constitutional challenge.

23
 7. Retrospective
effect

Gurucharan Singh The delegated legislation DL Ultra Vires: Subordinate

vs. State (1974) was invalid because it was legislation cannot have
given retrospective effect retrospective effect unless the
without being expressly rule-making power in the relevant
conferred with such power statute expressly or by necessary
by the parent Act, nullifying implication confers this power.
an earlier decision.

4.6. Conclusion

The test of Substantive Ultra Vires is the most potent weapon of the judiciary to control
administrative legislation. It ensures that the delegate stays within the constitutional and
statutory limitations imposed by the legislature. Judicial decisions confirm that delegated
power is a trust that must be exercised in good faith and strictly for the purposes for which it
was granted. Any attempt to transgress this limit—whether by changing the essential policy,
violating fundamental rights, or improperly sub-delegating—will be struck down as ultra
vires.

24
UNIT III

1. Audi Alteram Partem

1.1 Introduction to the Principle of Natural Justice

Natural Justice (also known as 'substantial justice', 'fundamental justice', 'universal justice', or
'fair play in action') is an important concept in administrative law. The principles, which are
neither fixed nor codified, are simple, elementary rules of procedure intended to invest law
with fairness, secure justice, and prevent miscarriage of justice.

1.2. Definition of PNJ

It is difficult to define Natural Justice precisely, as it is a vague and ambiguous concept, but
its principles are universally accepted and enforced. Lord Reid observed in the historical
decision of Ridge v. Baldwin that while some call it vague, one must reject the "perennial
fallacy that because something cannot be cut and dried or nicely weighed or measured
therefore it does not exist." These principles are considered implicit in the rule of law.

1.3. Basis of the Application of the Principle of Natural Justice:

English Law recognises two fundamental principles of natural justice:

●​ Rule against bias (Nemo Judex in causa sua or Nemo debet esse judex in propria
causa): This means "No man shall be a judge in his own cause." The deciding
authority must be impartial and free from any interest or bias (pecuniary, personal, or
official).
●​ Hear the other side (Audi Alteram Partem or the rule of fair hearing): This means
"No man should be condemned unheard" or that both sides must be heard before
passing any order.

1.4. Audi Alteram Partem:

Audi Alteram Partem is the second fundamental principle of natural justice. It means that
before an order is passed against any person, a reasonable opportunity of being heard must
be given to him.

Essentials of Fair Hearing: Generally, this maxim includes two core elements:

1.​ Notice:
○​ Before any adverse action is taken, the affected party must be given a notice
to show cause against the proposed action and seek his explanation. It is a sine
qua non (essential condition) of the right to a fair hearing.
○​ The notice must be clear, specific, and unambiguous, giving a reasonable
opportunity to comply with its requirements.

25
 ○​ An order passed without notice is against the principles of natural justice and
is void ab initio.
2.​ Hearing:
○​ The person concerned must be given an opportunity of being heard before any
adverse action is taken against him.
○​ In the absence of statutory provisions, the right to an oral or personal
hearing is generally NOT regarded as a sine qua non of natural justice in
India, but depends on the facts of the case and is generally at the discretion of
the tribunal.
○​ However, the right of hearing includes the right to produce all relevant
evidence, disclose all material placed before the authority, and an opportunity
to rebut the evidence.

1.5. Exclusion of Natural Justice

The rules of natural justice are flexible and are not immutable. They yield to the exigencies
of different situations and can be adopted or modified by statute. The principles of natural
justice may be excluded in the following cases:

●​ Where a statute either expressly or by necessary implication excludes application of

natural justice.
●​ Where prompt and urgent action is necessary.
●​ Where preventive action is to be taken.
●​ Where the action is legislative in character.
●​ Where the doctrine of necessity applies.
●​ Where the facts are admitted or undisputed.
●​ Where the inquiry is of a confidential nature.

However, the inference of exclusion should not be readily made unless it is irresistible, as
courts presume that the legislature intends to observe these principles.

1.6. Cases:

Case Principle Established under Audi Alteram Partem

a) Maneka Gandhi Held that the order impounding the petitioner's passport without a
v. Union of India prior hearing was violative of the principles of natural justice. It
(1978) established that the duty to give reasonable opportunity will be
implied even where there is no specific statutory provision, from
the nature of the function to be performed.

26
 b) Ridge v. Baldwin Described as the 'magna carta' of natural justice. The House of
(1964) Lords held that the power of dismissal of a Chief Constable could
not be exercised without observing Audi Alteram Partem. The
non-observance of natural justice renders the order illegal.

c) Cooper v. The Board demolished the plaintiff's house without hearing him,
Wandsworth Work based on a statute that granted them power to do so without prior
Board (1863) permission. The Court held that the Board's power was subject to
the common law rule that no man can be deprived of his property
without having an opportunity of being heard, thus supplying
the omission of the legislature.

d) R v. University Dr Bentley was deprived of his degrees without notice or

of Cambridge (Dr opportunity for hearing. The decision was declared null and void,
Bentley's Case) with the famous observation that "even God himself did not pass
(1723) sentence upon Adam, before he was called upon to make his
defence."

1.7. Conclusion

Audi Alteram Partem is a cardinal rule of civilised jurisprudence, ensuring that any action
taken by an administrative authority that adversely affects a person's rights (in person or
purse) is preceded by notice and a fair opportunity to be heard. This principle is flexible
and its application depends on the circumstances and the nature of the case, but its violation
generally results in the action being deemed void ab initio in India. The law requires fairness
in action, supplementing statutory provisions where silence might otherwise lead to injustice.

2. Rule Against Bias

2.1. Introduction to PNJ and Rule Against Bias

Natural Justice is a great humanizing principle intended to secure justice and prevent the
miscarriage of justice. It is implicit in the Rule of Law.

English Law recognizes two fundamental principles of natural justice:

1.​ Rule against bias (Nemo Judex in causa sua or Nemo debet esse judex in propria
causa).
2.​ Hear the other side (Audi Alteram Partem).

27
2.2. Meaning and Definition

Definition of Bias and No One Should Be a Judge in Their Own Cause: The first
principle of natural justice is the rule against bias or interest. It is based on the maxim: "No
man shall be a judge in his own cause."

●​ Meaning of Bias: Anything which tends or may be regarded as tending to cause a

person to decide a case otherwise than on evidence must be held to be biased. It is a
"predisposition to decide for or against one party, without proper regard to the
true merits of the dispute."
●​ Principle: The Judge is required to be impartial and neutral, indifferent to the
parties, and free from bias. He must be in a position to act judicially and decide the
matter objectively. The object is not merely that "the scales be held even; it is also that
they may not appear to be inclined."

2.3. Importance

The principle is of the last importance because:

●​ It ensures that the Judge acts dispassionately and submerges private feeling.
●​ It serves as the strongest proof against non-neutrality.
●​ It is essential that the maxim be held sacred to clear away everything which might
engender suspicion and distrust of the tribunal and to promote confidence in the
administration of justice.

The test applied in cases of personal or subject-matter bias is whether there is a real
likelihood of bias in the judge, which must be based on the reasonable apprehensions of a
reasonable man fully apprised of the facts.

2.4. Types of Bias

Bias is broadly classified into three types: Pecuniary, Personal, and Official (Subject-Matter)
bias.

a) Pecuniary Bias:

●​ Principle: The least pecuniary interest in the subject-matter of the litigation will
disqualify any person from acting as a Judge, however slight, even if it is not proved
that the decision was affected.
●​ Dimes v. Grand Junction Canal (1852): The House of Lords quashed the decree
confirmed by Lord Chancellor Cottenham because he was a substantial shareholder
in the Canal Company, even though his decision was not actually influenced. This
was done to uphold the sacred maxim: "to avoid the appearance of labouring
under such an influence."
●​ Thomas Bonham v. College of Physicians (1610): Dr. Bonham was fined by the
College of Physicians, and the statute provided that fines should go half to the King

28
 and half to the College. The claim was disallowed as the College had a financial
interest in its own judgment and was a judge in its own cause.

b) Personal Bias:

●​ Principle: Arises when the Judge is a relative, friend, or has some personal grudge or
professional rivalry against a party.
●​ A.K. Kraipak v. Union of India (1969): A candidate (N) for selection to the Indian
Foreign Service was also a member of the Selection Board. N participated in
deliberations for rivals and the preparation of the final list. The Court quashed the
selection.
○​ Test: The real question is not whether he was biased, but "whether there is
reasonable ground for believing that he was likely to have been biased."
The Court noted a clear conflict between his interest and duty.

c) Subject Matter Bias (Official Bias):

●​ Principle: Arises when the judge has a general interest in the subject-matter. This
rarely invalidates proceedings, as ministerial or departmental policy cannot
generally be regarded as a disqualifying bias.
●​ Gullapalli Nageswara Rao v. A.P.S.R.T.C (Gullapalli I) (1959): A scheme for
nationalisation of motor transport was approved after objections were heard by the
Secretary of the Transport Department. The Supreme Court held that the Secretary
was "in substance" one of the parties to the dispute and, hence, the principles of
natural justice were violated due to official bias.

2.5. Exceptions - Doctrine of Necessity

The principles of natural justice are not immutable and yield to the exigencies of different
situations, including the Doctrine of Necessity. While the provided PDF text discusses the
flexibility of the rules, the case of Maharashtra State Board of Secondary and Higher
Secondary Education v. Paritosh (1984) is referenced in the context of the Audi Alteram
Partem rule (hearing cannot be extended to "mere expectations" like inspecting answer
books).

General Exclusion: The principles may be excluded where the Doctrine of Necessity
applies, or where a statute expressly or by necessary implication excludes them, or where
prompt and urgent action is required.

2.6. Conclusion

The rule against bias is a paramount principle of natural justice, ensuring that justice is not
only done but is "manifestly and undoubtedly be seen to be done." The slightest pecuniary
interest disqualifies, while personal and subject-matter bias are judged by the test of "real
likelihood of bias." Though flexible and subject to statutory modifications, strict adherence

29
to this principle is essential for maintaining public confidence in the impartiality and
objectivity of all judicial and quasi-judicial decision-making processes.

3. Speaking Order

3.1. Introduction to Principle of Natural Justice - Speaking Order as the Third Principle
of Natural Justice

The duty to record reasons in support of an order is often referred to as the third principle of
natural justice, alongside Nemo Judex in causa sua (rule against bias) and Audi Alteram
Partem (right to be heard). While not universally accepted in English law as a common law
requirement, the recent trend in India considers the requirement to record reasons as a
fundamental aspect of natural justice.

3.2. Meaning and Definition: Definition of Speaking Order and Doctrine of Reasoned
Decisions (Lord Denning's Doctrine of Reasons)

Definition of Speaking Order: A "speaking order" means an order that "speaks for
itself"—that is, every order must contain reasons in support of it.

Doctrine of Reasoned Decisions (Lord Denning's Doctrine of Reasons): While there is no

general rule of English law that reasons must be given for all decisions, Lord Denning
observed that "the giving of reasons is one of the fundamentals of good administration."
The doctrine essentially mandates that a party has a right to know not only the result of the
inquiry but also the reasons in support of the decision.

3.3. Elements and Importance

Elements and Importance: The requirement to record reasons is imposed as a safeguard

against the arbitrary exercise of wide discretionary powers by administrative tribunals and
executive authorities.

Element Importance/Function

Clarity Reasons are the links between the materials on which certain
conclusions are based and the actual conclusions. They introduce
clarity and ensure a rational nexus between facts and conclusions.

Exclusion of The obligation to record reasons operates as a deterrent against

Arbitrariness possible arbitrary action by executive authority.

30
 Judicial Scrutiny It enables an appellate or supervisory Court to keep the tribunals
within bounds. The party aggrieved can demonstrate before the
appellate court that the reasons were erroneous.

Satisfaction of It gives satisfaction to the party against whom the order is made,
Parties ensuring fairness.

The necessity of giving reasons is particularly critical for administrative tribunals because,
unlike trained judges, an executive officer "generally looks at things from the standpoint of
policy and expediency."

3.4. Non-Speaking Orders - Characteristics of Non-Speaking Orders and its Impact

Characteristics of Non-Speaking Orders: A non-speaking order is one that records a

decision without providing the supporting reasons or rationale. This happens when:

●​ The adjudicating authority fails to disclose how its mind was applied to the
subject-matter.
●​ The authority records vague or general conclusions without the underlying
justification.

Impact of Non-Speaking Orders:

●​ Frustrates Right of Appeal: If the order is subject to appeal or revision, the appellate
court cannot understand what weighed with the authority, making the exercise of the
right of appeal futile.
●​ Arbitrariness: The order is liable to be arbitrary and unjust, as there is no visible
safeguard against capricious action.
●​ Bad in Law (General Rule): The general principle is that the "validity of the order
passed by the statutory authority must be judged by the reasons recorded therein and
cannot be construed in the light of subsequent explanation given by the authority
concerned or by filing an affidavit."

3.5. Case Laws

●​ S.N. Mukherjee v. Union of India (1990):

○​ Principle: The Constitution Bench held that, keeping in view the expanding
horizon of natural justice, the requirement to record reasons can be
regarded as one of the principles of natural justice which govern the
exercise of power by administrative authorities, especially since such
decisions are subject to the appellate jurisdiction of the Supreme Court and the
supervisory jurisdiction of High Courts.

31
 ●​ Union of India v. E.G. Nambudiri (1991):
○​ Principle: The Supreme Court set aside the Tribunal's order, observing that
"principles of natural justice do not require the administrative authority
to record reasons for the decision as there is no general rule that reasons
must be given for administrative decision." (Note: This view differs from
the later Constitution Bench stance in S.N. Mukherjee, which confirmed the
requirement for judicial/quasi-judicial functions).
●​ Breen v Amalgamated Engg. Union (1971):
○​ Principle: Lord Denning observed that "the giving of reasons is one of the
fundamentals of good administration." This case highlights the importance
of reasoned decisions, linking it directly to good governance.
●​ Ratan Lal Patel v. Dr. Hari Singh Gour Vishwavidayalaya: (This case name does
not appear in the PDF excerpt; however, related principles are discussed.)

3.6. Conclusion

The duty to pass a Speaking Order has evolved from being merely a desirable administrative
practice to an implicit requirement of natural justice for all quasi-judicial and judicial
functions in India. As stated in S.N. Mukherjee v. Union of India, this requirement is
fundamental because it introduces clarity, excludes arbitrariness, and provides a necessary
assurance of fairness, thereby enabling effective judicial scrutiny and upholding the Rule of
Law. If an authority fails to record reasons, it defeats the purpose of justice.

32
UNIT IV

1. JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION (Failure to exercise)

1.1. Introduction

Administrative authorities, due to the shift to a 'welfare state' philosophy, have acquired vast
discretionary powers. While courts generally do not interfere with the exercise of these
powers, it is their duty to ensure that this discretion is not abused or arbitrarily exercised.
Discretion is not absolute or unfettered; it must be exercised according to the rules of reason
and justice, not private opinion. Judicial review operates to control this power and prevent its
abuse.

1.2. Object, Nature, and Scope

Object: The underlying object of judicial review is to ensure that the authority does not
abuse its power and that the individual receives just and fair treatment. It is not to ensure
that the authority reaches a conclusion that is correct on the merits.

Nature and Scope (Minerva Mills Ltd. v. Union of India): The Constitution has vested the
judiciary with the power of judicial review to determine the legality of administrative action
and the validity of legislation. In Minerva Mills Ltd. v. Union of India, the Supreme Court
stated that judicial review is a "basic and essential feature" of the Constitution, functioning
as the "sentinel on the qui vive" (watchman) to keep different organs of the State within
their constitutional limits. Judicial review aims to protect citizens from the abuse or misuse of
power.

The court's concern is with the decision-making process, not the merits of the decision itself,
keeping the judiciary within its supervisory role.

1.3. Grounds for Judicial Review - Failure to Exercise

Failure to exercise discretion occurs when the authority, although entrusted with power, does
not genuinely apply its own judgment. This non-exercise of power is a fundamental flaw that
renders the administrative action bad.

i. Sub-delegation A discretionary power must be exercised only by the authority to which it

has been committed. The principle is that the power cannot be delegated unless expressly
empowered by the statute, as trust is placed in the original authority's individual judgment.

●​ Sahni Silk Mills v. ESI Corpn.: The parent Act allowed the Corporation to delegate
its power to recover damages to the Director General, who, in turn, sub-delegated that
power to Regional Directors. Since there was no statutory provision allowing the
Director General to further delegate, the action was held to be bad.
●​ Pradyat Kumar v. Chief Justice Calcutta: An inquiry against a Registrar was
conducted by a puisne Judge, and the dismissal order was passed by the Chief Justice.

33
 The Supreme Court held this was not a case of illegal delegation but merely of
employing a competent officer to assist the Chief Justice.

ii. Imposing fetters on discretion by self-imposed rules of policy: An authority must

exercise its discretion by considering the facts of each individual case. If the authority
adopts a fixed, rigid rule of policy to be applied universally, it amounts to a failure to
exercise discretion. The authority must not "shut its ears to an application."

●​ Keshavan Bhaskaran v. State of Kerala: The Director, empowered to grant age

exemption in deserving cases, adopted an invariable rule of not granting exemption
if the age deficiency exceeded two years. The court held that this fixed rule of policy
was contrary to law.
●​ Tinkler v. Wandsworth Board of Works: A sanitary authority adopted a general
rule that all cesspits should be replaced by water-closets without considering each
case on its merits. The court held the action bad.

iii. Acting under dictation: This occurs when an authority entrusted with power does not
exercise it but acts under the dictation of a superior authority, thereby abdicating and
surrendering its discretion. The authority purports to act on its own but is "in substance"
exercising the judgment of another, rendering the action ultra vires.

●​ Commissioner of Police v. Gordhandas: The Commissioner of Police, who had the

discretion to grant/cancel licenses, cancelled a license at the direction of the State
Government. The Supreme Court set aside the cancellation, as the Commissioner had
acted merely as the agent of the Government, failing to exercise his own discretion.
●​ Rambha Rosa Singh v. State of Bihar: A District Magistrate, empowered to lease
public ferries subject to the direction of the Commissioner, acted instead upon the
directions issued by the Government. The High Court set aside the order.

iv. Non-Application of mind: The authority must exercise its discretionary power after
genuinely applying its mind to the facts and circumstances of the specific case. If it acts
mechanically, without due care or a sense of responsibility, it shows a clear failure to exercise
discretion, making the action illegal.

●​ Jagannath v. State of Orissa: An order of detention was quashed because six

grounds were verbatim reproduced from the statute, and the detaining Minister's
affidavit only supported two grounds. This demonstrated clear non-application of
mind by the detaining authority.

v. Power coupled with duty: When a statute confers power on a public officer in permissive
language (e.g., "may"), this power is often interpreted as being coupled with a duty to
exercise it for the benefit of persons specified by the legislature. Failure to exercise this duty
when the conditions for its exercise are met is a failure to exercise discretion, and the court
will compel its performance.

34
 ●​ Hriday Narain v. ITO: Section 35 of the Income Tax Act, 1922, empowered the
Income Tax Officer to rectify a mistake (using "may"). The Supreme Court held that
where a statute invests a public officer with authority to do an act in specified
circumstances, the power is "coupled with duty" and is imperative upon him to
exercise it when a party applies and circumstances exist.

1.4. Conclusion

Judicial review regarding the failure to exercise discretion ensures that the delegation of
administrative power is not nullified by inaction, external interference (dictation), or the
mechanical application of rigid policies. The courts insist that the discretion entrusted to a
specific authority must be exercised personally, honestly, and with an objective
application of mind to the unique facts of the case, thereby maintaining the Rule of Law and
safeguarding citizens against arbitrary administrative conduct.

2. JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION (Excess or abuse of

discretion)

2.1. Introduction

The existence of discretionary powers is a necessity for the administrative branch in a

Welfare State. However, "every power tends to corrupt and absolute power corrupts
absolutely." Therefore, it is the duty of the courts to control the exercise of this discretion
and prevent its abuse, ensuring a "Government of laws and not of men." When the mode of
exercising a valid power is improper or unreasonable, there is an abuse of power.

2.2. Object, Nature, and Scope

Object (Minerva Mills Ltd. v. Union of India): The underlying object of judicial review is
to ensure that the authority does not abuse its power and that the individual receives just
and fair treatment. In Minerva Mills Ltd. v. Union of India, the Supreme Court established
that judicial review is a "basic and essential feature" of the Constitution, acting as the
"sentinel on the qui vive" (watchman) to protect citizens from misuse of power by any
branch of the State.

Nature and Scope: Judicial review is concerned with the decision-making process, not the
merits or correctness of the decision. It is supervisory, not appellate. The courts interfere
when discretion is exercised contrary to law. Abuse of discretion is often complex, as various
flaws like taking irrelevant considerations or acting maliciously frequently "overlap to a
very great extent" and "run into one another."

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2.3. Grounds for Judicial Review - Excess or abuse of discretion

Excess or abuse of discretion may be inferred from various circumstances where the
administrative authority acts beyond the legal limits or improperly uses the power conferred
upon it:

i. Absence of Power: There can be no exercise of power unless such power exists in law. If
the power does not exist, the purported exercise is non-existent and void.

●​ R v. Minister of Transport: The Minister passed an order of revocation of a license

even though he had no power to do so under the law. The action was held ultra vires
and without jurisdiction.

ii. Exceeding Consideration (Exceeding Jurisdiction): An authority must exercise power

within the limits set by the statute. If it exceeds those limits, the action is ultra vires.

●​ London County Council v. Attorney General: The local authority, empowered to

operate tramways, was restrained by injunction from also carrying on a bus service.
The operation of the bus service was held ultra vires as it exceeded the statutory grant
of power.

iii. Irrelevant Consideration: A statutory power must be exercised based on considerations

relevant to the purpose for which the power was conferred. If the authority takes into
account wholly irrelevant or extraneous considerations, the action is bad.

●​ Hukum Chand v. Union of India: The Divisional Engineer disconnected a telephone

on the allegation that it was used for illegal forward trading (satta). The Supreme
Court held this was an extraneous consideration not contemplated by the rule (which
was public emergency) and an arbitrary exercise of power.
●​ Ram Manohar Lohia v. State of Bihar: A person was detained to prevent the
subversion of 'law and order'. The Supreme Court set aside the order because the
detention power was limited to preventing the subversion of 'public order', a
narrower term. Thus, the detaining authority considered an irrelevant factor ('law and
order').

iv. Leaving out relevant consideration: The exercise of power is bad if the authority fails to
take into account considerations that are relevant to the statutory purpose.

●​ Rampur Distillery Co. v. Company Law Board: The Company Law Board refused
to renew a managing agency, primarily citing the director's severely criticized past
conduct in other companies. The court (though ultimately upheld the refusal on
another point) noted that the Board should not only look at past conduct but also the
present activities (relevant factors) before taking a final decision.

v. Mixed Consideration: This arises when an administrative order is based partly on

relevant and partly on irrelevant or non-existent considerations.

36
 ●​ State of Orissa v. Bidyabhusan: A civil servant was dismissed on several charges.
The High Court found some charges unproved and directed reconsideration. The
Supreme Court reversed this, holding that if the order can be supported on any
finding as to substantial misdemeanour for which the punishment can lawfully be
imposed, the court should not direct reconsideration. This principle applies when the
conclusion is based on objective facts.

vi. Malafide (Malice in Fact): An action is mala fide when exercised out of personal
animosity, ill-will, vengeance, or a corrupt motive. The burden of proof is very heavy on
the person alleging mala fide.

●​ C.S. Rowjee v. State of A.P.: A scheme for the nationalisation of certain transport
routes was enacted at the direction of the Chief Minister. It was alleged that the routes
were selected to take personal vengeance against private operators who were his
political opponents. The Supreme Court upheld the contention and quashed the order.

vii. Malice in Law: This occurs when an action is taken or power is exercised without just
or reasonable cause or for a purpose foreign to the statute, even if personal ill-will is
absent.

●​ Municipal Council of Sydney v. Campbell: The Council acquired land ostensibly

for improving or remodelling the city (statutory purpose). In reality, the object was to
benefit from the probable increase in land value after extending a highway (ulterior
object). The action was held ultra vires.
●​ T.N. Seshan v. Union of India: (The provided text only notes that the President's
action in making the Election Commission multi-member was challenged as mala fide
and upheld as constitutional, but does not detail the court's full analysis on malice in
law.)

viii. Improper Object: A statutory power must be exercised for the purpose for which it was
conferred and for that purpose alone. If used for a different, though possibly honest, object,
the action is bad.

●​ Nalini Mohan v. District Magistrate: Authority empowered to rehabilitate persons

displaced by communal violence used that power to house a person who had come on
medical leave from Pakistan. The order was set aside as being used for an improper
object foreign to the statute.

ix. Colourable exercise of power: This is where power is exercised ostensibly for the
proper purpose, but in reality for some other collateral purpose under the guise of
legality. It is a "fraud upon the statute."

●​ Vora v State of Maharashtra: The State Government requisitioned a flat (transitory

power) but refused to derequisition it despite requests, intending to keep the flat for
permanent use. The court declared this action illegal, describing it as a "fraud upon
the statute."

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x. Unreasonableness: A discretionary power must be exercised reasonably. If the decision
is so unreasonable that no reasonable man could have reached it (known as Wednesbury
unreasonableness), the action is ultra vires.

●​ Roberts v. Hopwood: The local authority was empowered to pay "such wages as it
may think fit." The authority fixed the wages at a very high rate for the lowest grade
worker. The House of Lords held that "may think fit" means "may reasonably
think fit," and the wages fixed were unreasonable, exceeding the limits of the
authority's discretion.

2.4. Conclusion

The exercise of administrative discretion is subject to stringent judicial scrutiny to prevent its
degeneration into arbitrary power. The grounds for review—from the clear illegality of acting
without power to the subtle abuse involved in pursuing an improper object or being swayed
by irrelevant considerations—ensure that administrators adhere to the Rule of Law.
Ultimately, the judiciary's role is to ensure that the administrator acts honestly, rationally,
and for the public interest mandated by the statute.

3. Administrative Discretion

3.1. Administrative discretion and need - Meaning and Definition

Meaning and Definition:

Administrative discretion arises when an administrative authority must make a determination,

at least in part, "upon the basis of consideration not entirely susceptible of proof or
disproof." It involves cases where the ascertainment of fact is legitimately left to
administrative determination.

The decision reached in administrative discretion is taken not only on the basis of evidence
but also "in accordance with policy or expediency" and in exercise of the discretionary
powers conferred on that authority.

3.2. Ministerial powers and discretionary powers

The text implies a distinction between purely ministerial functions and discretionary powers:

●​ Ministerial Powers (Implied): These are routine functions where the authority
exercises little to no choice, simply carrying out a defined duty.
●​ Discretionary Powers: These functions allow the authority a degree of choice,
permitting the decision to be influenced by factors of policy and expediency, going
beyond the strict application of evidence. Discretion is often granted in permissive
language (such as "may," "it shall be lawful," etc.).

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3.3. Need and effects of Discretion

Need of Discretion:

The need for administrative discretion is a consequence of the modern state's shift from a
'police state' to a 'welfare state'. Due to the pervasive and increased governmental
functions—which now include regulation of trade, industry, and social
services—administrative authorities have necessarily acquired vast discretionary powers.

Effects of Discretion:

Discretion is necessary for effective administration, but it carries inherent risks:

●​ Positive Effect: Enables the administration to adapt law to individual cases and
implement government policy and expediency effectively.
●​ Negative Effect (Risk): If discretion is absolute, it leads to arbitrary exercise of
power. As Justice Douglas observed: "Where discretion is absolute man has
always suffered." The wider the discretion, the greater the possibility of its abuse.

3.4. Statutory discretion

Statutory discretion refers to the discretionary power conferred upon an administrative

authority by a statute. This is the primary source of administrative power today.

The key feature of statutory discretion is that while the power is granted in permissive
language (e.g., the authority "may" do an act), this power is frequently "coupled with
duties." Courts often interpret enabling words in a statute as compulsory "where the words
were to effectuate a legal right."

●​ Power Coupled with Duty: When a statutory power is given to a public officer "for
the purpose of being used for the benefit of persons who are specifically pointed out,"
that power ought to be exercised, and the court will require it to be exercised. This
prevents the authority from shirking or evading its responsibility in the exercise of
discretion.

3.5. Conclusion

Administrative discretion is indispensable for the operation of the modern Welfare State,
allowing administration to function according to policy and expediency. However, this power
must not be "unfettered, uncontrolled or non-reviewable." Judicial review is therefore
essential to ensure that discretionary power, though granted by statute, is exercised
"according to the rules of reason and justice, not according to private opinion," thereby
guaranteeing a "Government of laws and not of men."

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4. Doctrines related to Administrative Discretion

4.1. Introduction

With the rapid growth of administrative law and the necessary control over the vast
discretionary powers of administrative authorities, courts have evolved several principles to
check abuse of power. The Doctrine of Proportionality and the Doctrine of Legitimate
Expectation are among the concepts fashioned by courts to ensure that administrative action
is not only legal and rational but also fair, especially when the actions infringe upon
individual rights.

4.2. Doctrine of Proportionality

Meaning and Explanation of Doctrine: The doctrine of proportionality ordains that

administrative measures must not be more drastic than is necessary for attaining the
desired result. It is concerned with the way in which the decision-maker has ordered his
priorities, ensuring that a decision is not grossly disproportionate to the facts of the case.
The doctrine involves a 'balancing test' (scrutinizing excessive penalties) and a 'necessity
test' (considering less restrictive alternatives).

Nature and Scope: The doctrine ensures that even when a decision is within the
administrative authority's exclusive province, the choice and quantum of punishment or
infringement must be suited to the offense and the offender. If an action is grossly
disproportionate, it "shocks the conscience of the court" and can be set aside as evidence of
bias or prejudice.

Proportionality and Reasonableness: The principles of proportionality and

unreasonableness cover a great deal of common ground. An action can be quashed either on
the ground that the penalty is 'disproportionate' or that it is 'unreasonable'. Proportionality
goes deeper, focusing on the balance between the restriction and the public aim sought.

Cases:

●​ Council of Civil Service Unions v. Minister for Civil Service (1984): Lord Diplock,
while classifying judicial review grounds as 'illegality,' 'irrationality,' and 'procedural
impropriety,' explicitly mentioned the "possible adoption in the future of the
principle of 'proportionality'" as a further ground of review.
●​ Hind Construction Co. v. Workman (1965): Workers were dismissed for treating a
particular day as a holiday. The Supreme Court upheld the setting aside of the
dismissal, observing that no reasonable employer would impose the extreme
punishment of dismissal for simple absence. The punishment was deemed
disproportionate.
●​ Ranjit Thakur v. Union of India (1987): An army officer was sentenced to rigorous
imprisonment and dismissed for disobeying a superior. The Supreme Court
intervened, emphasizing that the sentence must "suit the offence and the offender"

40
 and not be "so disproportionate to the offence as to shock the conscience." The
Court confirmed that proportionality is part of judicial review and ensures that an
"outrageous defiance of logic" is corrected.
●​ Sardar Singh v. Union of India (1991): A jawan was dismissed and sentenced for
possessing eleven bottles of rum (exceeding his entitlement of four). The Supreme
Court set aside the order, holding the action arbitrary and the punishment
severe/disproportionate.

4.3. Doctrine of Legitimate Expectation

Meaning and Explanation of Doctrine: A person may have a legitimate expectation of

being treated in a certain way by an administrative authority even if they have no legal right
to that treatment in private law. This expectation, meaning a reasonable expectation, may
arise from an express promise or from the existence of a regular past practice which the
applicant can reasonably expect to continue.

Nature, Scope, and Object of the Doctrine:

●​ Nature: It is the 'latest recruit' to the concepts used by courts for reviewing
administrative actions. Arguments under 'estoppel' and 'legitimate expectation' are
similar, though estoppel requires proof of detriment, which the latter does not.
●​ Object: To ensure that good administration demands the observance of
reasonableness even where principles of natural justice do not strictly apply, imposing
a duty on the authority to act fairly.
●​ Scope: It can afford the applicant locus standi for judicial review. It means the
authority should not defeat that expectation without justifiable cause or without
affording an opportunity of making representation.

Scope of Judicial Review: The existence of a legitimate expectation may give rise to judicial
review, but it does not require the fulfilment of the expectation where public interest
requires otherwise. Protection only requires that the denial be justified on the basis of
overriding public interest and that the authority acts fairly (e.g., giving a hearing before
denial).

Cases:

●​ a) Attorney General of Hong Kong v. Ng Yuen Shiu (1983): The government

announced that illegal immigrants would not be deported until their cases were
considered individually. When a deportation order was issued without consultation,
the Court quashed it, holding that when a public authority promises to follow a
certain procedure, it must implement its promise (act fairly).
●​ b) Schmidt v. Secy of State (1969): The doctrine made its first appearance here. It
was held that an alien granted leave to enter the U.K. for a limited period had a
legitimate expectation of being allowed to stay for the permitted period.

41
 ●​ c) Navjyoti Coop. Group Housing Society v. Union of India (1992): The
government's policy for land allotment was "First come first served." When this
policy was changed without notice, the societies that applied earlier invoked the
doctrine of legitimate expectation.
○​ Held: The societies could invoke the doctrine, and the court ruled that the
decision resulting in the denial of this expectation could be questioned if found
unfair, unreasonable, or arbitrary.

4.4. Conclusion

The doctrines of Proportionality and Legitimate Expectation are essential extensions of

judicial review, aimed at structuring administrative discretion and preventing its abuse
beyond the traditional grounds of illegality and procedural impropriety. Proportionality
strictly controls the severity of the action relative to its purpose, while Legitimate Expectation
imposes a duty to act fairly and consistently where a citizen has a reasonable expectation,
thereby reinforcing the overall goal of achieving a "Government of laws and not of men."

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UNIT V

1. Habeas Corpus

1.1. Introduction to Writs

The writ system provides the most important remedies available to an individual aggrieved
by an illegal action of an administrative authority. This is based on the maxim "Ubi jus ibi
remedium" (wherever there is a right, there is a remedy).

The Founding Fathers of the Constitution made specific provisions in Article 32 (for the
Supreme Court) and Article 226 (for the High Courts) to issue prerogative writs—Habeas
Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari. Article 32 guarantees the
right to move the Supreme Court for the enforcement of fundamental rights, and Dr.
Ambedkar called it the "very soul of the Constitution and the very heart of it."

1.2. Meaning and Nature of Habeas Corpus

Meaning: The Latin phrase 'Habeas Corpus' literally means "have the body."

Nature: It is a writ in the nature of an order calling upon the person who has detained another
to produce the latter before the court. The court then examines the grounds for the
confinement and sets the person free if there is no legal justification for the imprisonment.

The object of the writ is to provide a prompt and effective remedy against illegal
restraints and to ensure a swift judicial review of alleged unlawful detention. The question
for a Habeas Corpus court is fundamentally: "whether the subject is lawfully detained. If
he is, the writ cannot issue; if he is not, it must issue." The writ's object is remedial,
aiming to release a person from illegal detention, and not punitive.

1.3. Application and Conditions

Against whom can it be applied: A writ of Habeas Corpus may be issued against any
person or authority who has illegally detained or arrested the prisoner, including the State or
public authorities. It is available not only for release from detention by the State but also for
release from private detention.

When is it allowed? The writ is allowed when:

1.​ The detention is unlawful or without legal justification.

2.​ The order of detention is mala fide or invalid (even during the suspension of
fundamental rights, although this was disputed, see 1.4).

When is it not allowed? The writ would generally be refused if:

1.​ The detention is found to be legally justified and in accordance with the law.

43
 2.​ The petition becomes infructuous, such as if the prisoner is released during the
pendency of the petition.
3.​ The legality or otherwise of the detention must be decided by the court with reference
to the date of return of the rule nisi, and not solely with reference to the date of
making the application.

Who can apply? The application can be made by:

1.​ The person illegally detained himself.

2.​ Any other person having an interest in the prisoner (e.g., a wife, father, or friend),
particularly if the prisoner is unable to make the application himself. The applicant
should not be a total stranger.

Essential Conditions for Writs (General Principles applicable to Habeas Corpus):

Though delay by itself does not bar the relief (as wrongful detention is a continuous wrong),
the court requires:

●​ The petitioner to be truthful, frank, and open, refraining from suppressing material
facts.
●​ The State to place all relevant and material facts before the court with utmost
fairness.
●​ The application should generally not be used to impeach or challenge the
correctness or propriety of a decision rendered by a court of competent
jurisdiction, unless the decision is void or without jurisdiction.

1.4. Cases

●​ ADM Jabalpur v. Shivkant Shukla (1976):

○​ Principle: This case, decided during the Emergency, held by a majority of 4:1
that during the suspension of Fundamental Rights, no person has locus standi
to move any court for a writ of Habeas Corpus. The majority view,
although later criticized as incorrect, held that the court could not issue the
writ to enforce Article 21.
●​ Other Cases (as per general principles):
○​ Kanu Sanyal vs. Dist. Magistrate, Darjeeling & Ors: (Illustrates the scope
of inquiry into the initial jurisdiction for detention).
○​ Janardhana Reddy vs. State of Hyderabad: (Illustrates that Habeas Corpus
generally cannot be used to challenge a conviction/sentence by a court of
competent jurisdiction).
○​ Sunil Batra v. Delhi Administration: (Illustrates the expansion of locus
standi to include public-spirited persons moving the court for those held in
custody, often leading to prison reforms).

1.5. Conclusion

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The writ of Habeas Corpus remains the most ancient and vital prerogative writ, serving as the
inviolable guardian of personal liberty against arbitrary or illegal restraint. Even in cases of
gravest emergencies, the court's duty is to strike a balance between the need to protect the
community and the necessity to preserve the liberty of a citizen. Its remedial nature
ensures that if confinement lacks legal justification, the court must "release the prisoner
forthwith," thereby upholding the most fundamental human right.

2. Mandamus

2.1. Introduction to Writs

The writ system, enshrined in Articles 32 and 226 of the Constitution, provides a set of
prerogative remedies to an individual aggrieved by the illegal actions of administrative
authorities. This is grounded in the principle 'ubi jus ibi remedium' (wherever there is a right,
there is a remedy). These writs are judicial remedies against the violation of rights by the
State or statutory authorities and are critical tools in public law.

2.2. Nature and Purpose of Mandamus

Meaning and Nature: Mandamus means a command. It is a judicial remedy in the form of
an order issued by a superior court (Supreme Court or High Court) to any Government, court,
corporation, or public authority.

Purpose: The writ commands the recipient to perform a public duty imposed upon it by the
Constitution or by any other law, or to forbear from doing some specific act which it is
obliged to do or refrain from doing.

Mandamus is distinct from other writs:

●​ It is available against an administrative authority (while certiorari/prohibition are

against judicial/quasi-judicial bodies).
●​ It demands activity (compels performance), whereas prohibition commands
inactivity.
●​ It acts where the authority declines jurisdiction, while certiorari/prohibition act
where the authority usurps jurisdiction.

2.3. Condition for Issuance

A writ of Mandamus is a discretionary remedy and is subject to several conditions:

Essential Conditions:

1.​ Legal Right: The petitioner must have a legal right that is currently subsisting, and
the infringement of this right gives them the right to compel the performance of a
public duty.

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 2.​ Legal Duty: A legal duty must be imposed on the authority. This duty must be
imperative, not discretionary or optional. It must be a public duty, statutory (imposed
by the Constitution or statute), or one derived from Common Law, but not merely
contractual.
3.​ Demand and Refusal: The petition must be preceded by a distinct demand of
justice and its refusal by the authority, allowing the authority to consider and comply
before legal action is initiated.

Who can apply:

●​ A person whose legal right has been infringed may apply.

●​ The right must be subsisting on the date of filing the petition.

Against whom it is issued: The writ is available against:

●​ Parliament and legislatures.

●​ Courts and tribunals.
●​ The Government and its officers.
●​ Local authorities (municipalities, panchayats).
●​ State-owned or State-controlled corporations (which fall under "State" in Article 12).
●​ Universities, educational institutions, and election authorities.

Mandamus can also be issued against an authority where discretionary power is abused
or exceeded, for instance, if the authority acts mala fide, or takes into account irrelevant
considerations.

Against whom it cannot be issued:

●​ The President or the Governor of a State for the exercise and performance of their
official duties (Article 361).
●​ The State Legislature to prevent it from enacting a law.
●​ An inferior or ministerial officer who is merely bound to obey the orders of their
superior.
●​ A private individual or any unincorporated body (though this is subject to some
exceptional circumstances).

2.4. Alternative Remedy

The availability of an alternative remedy is not an absolute bar to issuing Mandamus.

●​ Rule of Policy: It is a rule of policy and practice, not a rule of law. The High Court
has discretion to refuse relief if an adequate and equally efficacious alternative
remedy (like an appeal or suit) is available.
●​ Exceptions: Mandamus will be issued notwithstanding an alternative remedy if:
○​ There is a violation of a fundamental right.
○​ The alternative remedy is ineffective, inadequate, or onerous.

46
 ○​ The statute providing the alternative remedy is itself unconstitutional.
○​ The impugned order is without jurisdiction or violates the principles of
natural justice.

2.5. Cases

1.​ Municipal Corporation v. Maharashtra (The specific case Municipal Corporation

v. Maharashtra is not detailed, but the principles governing Mandamus against
local bodies are clear):
○​ Principle: Mandamus will lie against local authorities (like Municipal
Corporations) which fail to perform a public duty imposed by statute, such as
constructing drains (as illustrated in Ratlam Municipality v. Vardichand). This
reinforces that Mandamus is the appropriate remedy to compel public bodies
to fulfill their statutory obligations.
2.​ State of Mysore v. Chandrasekhar (AIR 1965 SC 532):
○​ Principle: The case reinforces the strict condition that Mandamus requires a
clear legal duty on the respondent and a legal right in the applicant. The
Supreme Court established that mandamus is essentially an order compelling
an authority to act in accordance with its legal duty.

2.6. Conclusion

Mandamus is the primary prerogative writ used to compel efficient administrative action
and uphold the Rule of Law by forcing public authorities to adhere to their prescribed duties.
Its extensive use, often combined with certiorari (known as certiorarified mandamus), has
made it a powerful instrument in public interest litigation, ensuring that public duty is
performed plainly and positively and that arbitrary non-action is corrected.

[Link] Warranto

3.1. Introduction to Writs

The writ system provides extraordinary, prerogative remedies under Articles 32 and 226 of
the Constitution. These writs are crucial instruments of judicial control over administrative
action, ensuring that public authorities exercise their powers within legal limits. The maxim
'Ubi jus ibi remedium' (wherever there is a right, there is a remedy) underpins this system.

3.2. Meaning and Nature of Quo Warranto

Meaning: 'Quo Warranto' literally means "what is your authority."

Nature: It is a judicial remedy directed against an occupier or usurper of an independent

substantive publ3ic office, franchise or liberty. By issuing this writ, the court calls upon
the person concerned to show by what authority he holds the office. If the holder has no

47
legal authority to hold the office, the court may pass an order ousting him from its
enjoyment.

●​ Object: The writ protects a citizen from being deprived of a public office to which he
may have a right. Conversely, it prevents an intruder from occupying an office for
which he is not legally qualified.
●​ Distinction: While a writ of Habeas Corpus reaches the body and Certiorari reaches
the record, a writ of Quo Warranto reaches an office, franchise, or liberty.

3.3. Application and Conditions

Essential Conditions for Issuance: Before the writ of Quo Warranto can be issued, the
following conditions must be satisfied:

1.​ Public Nature: The office must be of a public nature, meaning an office in which
the public has an interest. This writ will not lie in respect of office of a private
nature (e.g., a managing committee of a private school).
2.​ Substantive Character: The office must be of a substantive character (an
independent office), and the mere fact that the office is held at pleasure will not
prevent it from being substantive.
3.​ Statutory or Constitutional: The office must be statutory or constitutional (e.g.,
Prime Minister, Judge of a High Court, University officials).
4.​ Assertion of Claim: The holder must have asserted his claim to the office.

Against whom can it be applied (When is it allowed?):

●​ It is issued against an occupier or usurper of a public office.

●​ It is allowed to question the legality and validity of an appointment to a public office
against relevant statutory provisions.
●​ It is available to oust a person from a statutory or constitutional office (e.g., Judge of a
High Court, member of a Municipal body, University officials).
●​ Cause of action is considered continuous (de die in dium). If the appointment is
illegal, a fresh cause of action arises every day the person acts in that office, meaning
a petition generally cannot be dismissed on the ground of delay.

When is it not allowed?

●​ When the office is of a private nature.

●​ When the issue of a writ would be vexatious, futile (e.g., the holder has ceased to
hold the office), or where there was mere irregularity in the election.
●​ If an alternative statutory remedy is available, the court may refuse the writ (though
this is discretionary).

Who can apply?

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 ●​ An application is maintainable at the instance of any private person (citizen or
non-citizen), even though he is not personally aggrieved or interested in the matter.
●​ The applicant does not seek to enforce any right of his own; the question is the right
of the non-applicant to hold the office.

3.4. Cases

1.​ University of Mysore vs. Govinda Rao (AIR 1965 SC 491):

○​ Principle: The Supreme Court confirmed that the procedure of Quo Warranto
confers jurisdiction on the judiciary to control executive action in the matter
of making appointments to public offices against the relevant statutory
provisions, and it protects citizens from being deprived of a public office to
which they may have a right.
2.​ Gokaraju Rangaraju v. State of Andhra Pradesh (AIR 1981 SC 1473):
○​ Principle: This case, while not explicitly mentioned in the Quo Warranto
section, deals with the De Facto doctrine (officer de facto). The De Facto
doctrine applies to Quo Warranto proceedings, meaning that the acts of an
officer de facto (one performing duties with public acquiescence, though
lacking legal right) cannot be questioned in a court of law for the sake of
order and regularity until their title is legally investigated and determined.
(Note: The provided text refers to a similar principle in Gokaraju Rangaraju
in the De Facto Doctrine section.)

3.5. Conclusion

The writ of Quo Warranto is a crucial constitutional safeguard that maintains the purity of
public administration by ensuring that no individual usurps an office of a public nature
without legal authority. The liberal rule regarding locus standi (any private person can apply)
underscores its importance as a check against illegal appointments and executive overreach,
preventing an intruder from retaining a public office once their lack of qualification is
established.

4. Certiorari

4.1. Introduction to Writs

The writ system, established under Articles 32 and 226 of the Constitution, provides a set of
prerogative remedies—Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and
Certiorari. These remedies are essential instruments of judicial control in public law, designed
to ensure that administrative authorities do not act outside the limits of the law.

4.2. Meaning and Nature of Certiorari

Meaning: 'Certiorari' means "to certify". It originated from the requirement for inferior
courts to certify the record of any matter and send it to the King's Court for examination.

49
Nature and Object: It is an order issued by the High Court to an inferior court or any
authority exercising judicial or quasi-judicial functions to investigate and decide the
legality and validity of the orders passed by it.

●​ Object: The primary object is to keep inferior courts and quasi-judicial authorities
within the limits of their jurisdiction. If they act in excess of jurisdiction, their
decisions can be quashed (corrected) by superior courts.
●​ Corrective Nature: Certiorari is a corrective or remedial writ. It applies to a
decision that is fait accompli (already done). It is complementary to Prohibition
(which is preventive, acting before the decision is made).

4.3. Application and Conditions

Essential Conditions for Writs (Lord Atkin's Formula): A writ of Certiorari can be issued
if the following conditions are fulfilled:

1.​ The judicial or quasi-judicial body must have legal authority.

2.​ Such authority must be an authority to determine questions affecting rights of
subjects.
3.​ It must have a duty to act judicially.
4.​ It must have acted in excess of its authority.

Who can apply: Normally, the party whose rights are affected (aggrieved party) may
apply. Where the application is made by the aggrieved party, the court should grant relief ex
debito justitiae (as a matter of right). However, if the question affects the public at large, any
person may apply, in which case the grant is discretionary.

When it is allowed:

●​ When an inferior court or tribunal acts without jurisdiction, in excess of its

jurisdiction, or fails to exercise jurisdiction.
●​ When there is an error apparent on the face of the record.
●​ When there is a violation of the principles of natural justice.

When it is not allowed (Limits):

●​ It cannot be issued to call for the record of a legislative act (an Act or Ordinance)
for quashing.
●​ It cannot be granted to quash the decision of an inferior court within its jurisdiction
on the ground that the decision is wrong (e.g., an error of fact or where two views
on law are possible).
●​ It cannot be used to correct a mere error of fact.
●​ It is a discretionary remedy, and the court may refuse it if an adequate alternative
remedy exists (though this is not an absolute bar).

4.4. Grounds

50
Certiorari is issued on the following grounds, which often overlap:

1.​ Error of Jurisdiction: When the tribunal acts entirely without jurisdiction or in
excess of its jurisdiction (e.g., revoking a license without the legal power). This
includes a wrong assumption of a jurisdictional fact (a preliminary fact required to
exist before jurisdiction can be assumed).
2.​ Error Apparent on the Face of Record: If there is an error of law that is manifest
or patent on the face of the proceedings and does not require lengthy evidence to
establish. This includes:
○​ Taking into account irrelevant considerations or ignoring relevant ones.
○​ The finding of fact being based on no evidence.
3.​ Violation of Natural Justice: When the principles of natural justice are violated (e.g.,
bias, no notice, no hearing).

4.5. Limits

The High Courts' powers under Certiorari are supervisory, not appellate. The court will not
review, re-appreciate, or reweigh the evidence upon which the determination is based. The
court can interfere only if the conclusion is "so plainly inconsistent with the relevant
statutory provision that no difficulty is experienced by the High Court in holding that
the said error of law is apparent on the face of the record." A fundamental limit is that
Certiorari cannot be issued to quash a legislative act.

4.6. Case Laws

1.​ Nageswar Rao v. APSRTC (Gullapalli I) (AIR 1959 SC 308):

○​ Grounds: Violation of Natural Justice / Error of Jurisdiction. The
Minister's Secretary, being virtually one of the parties, heard objections to a
nationalisation scheme.
○​ Principle: The Supreme Court quashed the order, holding that the tribunal
must act free from bias, and failure to observe principles of natural justice
goes to the root of jurisdiction.
2.​ Hari Vishnu v. Syed Ahmed Ishaque (AIR 1955 SC 233):
○​ Grounds: Error Apparent on the Face of Record.
○​ Principle: The Court elaborated on the distinction between Certiorari and
Prohibition and established that Certiorari lies for manifest error of law but
not for error of fact, however grave.
3.​ Maradana Mosque Trustees v. Mahmud: (This case name does not appear in the
PDF excerpt; however, it deals with jurisdictional issues.)
4.​ Anisminic Ltd. v. Foreign Compensation Commissions: (This case name does not
appear in the PDF excerpt; however, it deals with ouster clauses and jurisdictional
error.)

4.7. Conclusion

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Certiorari is an indispensable writ, fundamentally ensuring that the exercise of judicial and
quasi-judicial power is conducted lawfully. It is a powerful corrective remedy available
against inferior bodies, primarily to enforce jurisdiction limits, correct errors apparent on
the face of the record, and ensure compliance with the principles of natural justice,
thereby preventing the miscarriage of justice and upholding the Rule of Law.

5. Prohibition

5.1. Introduction to Writs

The writ system, established under Articles 32 and 226 of the Constitution, provides a set of
prerogative remedies to an individual aggrieved by the illegal actions of administrative
authorities. These writs are essential instruments of judicial control in public law, ensuring
that public authority remains within the limits of its jurisdiction.

5.2. Meaning and Nature of Prohibition

Meaning: A writ of Prohibition is a judicial writ. The principle underlying it is that

"prevention is better than cure."

Nature and Purpose: It is an order issued by a superior court (the Supreme Court or High
Court) directed to an inferior judicial or quasi-judicial authority.

●​ Purpose: It forbids the subordinate court or tribunal from continuing with a

proceeding on the ground that the proceeding is without or in excess of jurisdiction.
Prohibition prevents the authority from usurping jurisdiction not vested in it and keeps
it within its jurisdictional boundaries.
●​ Preventive Nature: Prohibition is the preventive counterpart to Certiorari. It seeks to
prevent the fait from becoming accompli (the act from being completed).

5.3. Application and Conditions

Essential Conditions for Writs: Prohibition is issued when an inferior court or tribunal acts:

1.​ Without or in Excess of Jurisdiction: The most common ground; the authority
proceeds to hear a matter over which it has no legal authority.
2.​ Contrary to the Principles of Natural Justice: Violation of natural justice (like bias)
goes to the root of jurisdiction, making the authority incompetent to proceed.
3.​ Under a Law that is Ultra Vires: The tribunal proceeds to act under a law that is
unconstitutional or beyond the competence of the legislature.

Who can apply:

●​ Where the defect of jurisdiction is apparent on the face of the proceedings, an

application for prohibition can be brought by the aggrieved party or even by a

52
 stranger. This is because usurpation of jurisdiction is considered a contempt of the
Crown.
●​ The writ is considered a writ of right and not merely discretionary when the defect of
jurisdiction is patent.

When it is allowed:

●​ When a judicial or quasi-judicial authority is pending proceedings and has acted or

proposes to act without or in excess of its jurisdiction.
●​ When a court or tribunal acts under a law that is unconstitutional or ultra vires.
●​ When the impugned action infringes the fundamental rights of the petitioner.

When it is not allowed (Limits):

●​ It does not lie against administrative authorities discharging purely executive or

ministerial functions.
●​ It cannot lie to correct a wrong decision on the merits (a mistake of fact or law) if
the tribunal acted within its jurisdiction. It only addresses usurpation, not erroneous
exercise of vested jurisdiction.
●​ It does not lie if the proceedings have already been terminated and the authority
has become functus officio (in which case the remedy is Certiorari).
●​ The existence of an Alternative Remedy may be taken into consideration by the
High Court but is not an absolute bar to issuance, especially where there is patent
lack of jurisdiction.

5.4. Cases

1.​ Nageswar Rao v. APSRTC (Gullapalli I) (AIR 1959 SC 308):

○​ Grounds: Violation of Natural Justice / Excess of Jurisdiction. The
Minister's Secretary, being virtually one of the parties, heard objections to a
nationalisation scheme.
○​ Principle: The Supreme Court quashed the order (Certiorari) and restrained
further proceedings (Prohibition) because the failure to observe principles of
natural justice went to the root of jurisdiction.
2.​ Hari Vishnu v. Syed Ahmed Ishaque (AIR 1955 SC 233):
○​ Principle: The Court elaborated on the complementary relationship between
Prohibition and Certiorari. Prohibition prevents the fait from becoming
accompli (restraining further action), whereas Certiorari quashes a decision
that is fait accompli (corrective).
3.​ Maradana Mosque Trustees v. Mahmud: (This case name is not detailed in the
provided file.)
4.​ Anisminic Ltd. v. Foreign Compensation Commissions: (This case name is not
detailed in the provided file.)

5.5. Conclusion

53
Prohibition is an indispensable preventive remedy in the constitutional armoury, operating to
control subordinate judicial and quasi-judicial authorities before they complete an unlawful
action. By restraining usurpation of power, it upholds the principle that "a superior court
should not be chary of exercising power of prohibition if judicial or quasi judicial
authorities attempt to exercise jurisdiction beyond the powers given to them by
Parliament." Where the defect in jurisdiction is patent, the writ is issued as of right.

54
OTHER TOPICS

The Right to Information Act, 2005

The Right to Information Act, 2005, is a significant statutory measure that mandates a timely,
transparent, and binding response to citizens' requests for government information, serving as
a crucial tool for democratic accountability.

Central and State Information Commissions (Sections 12, 15)

The Act establishes the Central Information Commission (CIC) and State Information
Commissions (SICs) as the ultimate appellate authorities.

Feature Central Information Commission State Information

(CIC) Commission (SIC)

Composition Chief Information Commissioner State Chief Information

(CIC) and Information Commissioner (SCIC) and State
Commissioner(s) (IC). Information Commissioner(s)
(SIC).

Tenure (Max) CIC/IC: Maximum 5 years or till 65 SCIC/SIC: As prescribed by

years of age (whichever is earlier). Central Govt. or till 65 years of
age (whichever is earlier).

Reappointment Not eligible for reappointment to the Not eligible for reappointment
same post. An IC can be appointed as to the same post. An SIC can be
CIC, with a maximum aggregate appointed as SCIC, with a
tenure of 5 years. maximum aggregate tenure of 5
years.

Removal President can order removal for Governor can order removal for
(Section 14/17) proved misbehaviour or proved misbehaviour or
incapacity. Requires a Supreme incapacity. Requires a Supreme
Court inquiry and recommendation. Court inquiry and
The President can also remove a recommendation. The Governor
member for specific can also remove a member for
disqualifications (e.g., insolvency, specific disqualifications (same
moral turpitude, engaging in paid grounds as CIC).
employment outside official duties).

55
Powers and Functions of the Commission (Section 18)

The CIC/SIC has the duty to receive and inquire into complaints regarding access to
information.

Power/Function Description

Inquiry Grounds Inquires into complaints including: non-appointment of PIO,

refusal of access, violation of time limit, unreasonable fee
demanded, or providing incomplete/false information.

Power to Inquire The Commission may initiate an inquiry if satisfied there are
reasonable grounds.

Powers of Civil While inquiring, the Commission is vested with the same powers
Court (Section as a civil court under the Code of Civil Procedure, 1908. This
18(3)) includes summoning persons, enforcing evidence on oath,
discovery and inspection, and requisitioning public records.

Summon Record The Commission can summon and examine any record under the
(Section 18(4)) control of a public authority, and such records cannot be withheld
on any grounds.

Appeal and Supremacy (Section 19)

The Act provides for a two-tier appellate mechanism:

1.​ First Appeal (Section 19(1)): Filed within 30 days to an officer senior in rank to the
CPIO/SPIO (First Appellate Authority).
2.​ Second Appeal (Section 19(3)): Filed within 90 days to the CIC/SIC against the
decision of the First Appellate Authority.

Key Appeal Provisions:

●​ Onus to Justify Denial (Section 19(5)): The burden of proof that a denial of request
was justified shall be on the CPIO/SPIO who denied the request.

56
 ●​ Finality of Decision (Section 19(7)): The decision of the CIC/SIC shall be binding.
●​ Orders Passed (Section 19(8)): The Commission can order the public authority to
provide access to information, appoint PIOs, make changes to record management,
award compensation to the complainant for loss suffered, or impose penalties.

Penalties (Section 20)

The CIC/SIC can impose penalties for deliberate violation of the Act's provisions, subject to
giving the concerned CPIO/SPIO a reasonable opportunity of being heard. The burden of
proving diligence lies with the CPIO/SPIO.

Violation (Section 20(1)) Penalty Imposed

Refusal to receive application without reasonable Rs. 250 per day till compliance,
cause; failure to furnish information within the time up to a maximum of Rs. 25,000.
limit; denial of request malafidely; knowingly giving
false information; destroying information; or
obstructing furnishing of information.

Persistent Default (Section 20(2)) The Commission shall

recommend disciplinary action
against the concerned
CPIO/SPIO under applicable
service rules.

Conclusion

The RTI Act, 2005, is an effective statute for enforcing the citizen's right to information by
mandating timely disclosure and establishing powerful, independent Commissions. Through
its stringent provisions for penalties and vesting Civil Court powers in the Commissions, the
Act ensures that public authorities are accountable, transparent, and diligent in managing and
providing access to information.

Lokpal and Lokayukta: Anti-Corruption Institutions

Introduction

57
Maladministration and corruption pose a severe threat to governance in India, hindering
effective administration. Despite the presence of existing anti-corruption agencies, many are
criticized for lacking independence and possessing only advisory powers (e.g., the CBI was
termed a "caged parrot" by the Supreme Court).

The establishment of the Lokpal and Lokayukta institutions, mandated by the Lokpal and
Lokayukta Act, 2013, was a landmark move aimed at providing an independent and
effective mechanism to counter corruption at all levels of the government.

What are Lokpal and Lokayuktas?

Lokpal (Union level) and Lokayuktas (State level) are statutory bodies—meaning they lack
constitutional status. They perform the role of an Ombudsman, which is an official
appointed to investigate individuals' complaints, specifically concerning allegations of
corruption against certain public bodies/organizations and functionaries.

Origin and History

The concept of the Ombudsman originated in Sweden in 1809. It gained significant traction
globally after World War II, with countries like New Zealand and Norway adopting it in
1962. Great Britain became the first prominent democratic nation to adopt the system in 1967
(on the recommendation of the Whyatt Report of 1961).

In India:

●​ The concept was first proposed by Law Minister Ashok Kumar Sen in the early
1960s.
●​ Dr. L. M. Singhvi coined the terms Lokpal and Lokayukta.
●​ The First Administrative Reform Commission (1966) recommended setting up
these two independent authorities at the central and state levels.
●​ The Lokpal Bill was introduced multiple times since 1968 but repeatedly lapsed due
to the dissolution of the Lok Sabha, failing to pass for decades.
●​ A nationwide protest, the "India Against Corruption" movement led by Anna
Hazare in 2011, exerted significant pressure.
●​ The Lokpal and Lokayuktas Bill was passed in 2013, received Presidential assent on
January 1, 2014, and came into force on January 16, 2014.

Lokpal and Lokayukta Amendment Act, 2016

The 2016 amendment addressed certain provisions of the 2013 Act:

●​ Leader of Opposition (LoP): It enabled the leader of the single largest opposition
party in the Lok Sabha to become a member of the selection committee in the absence
of a recognized LoP.

58
 ●​ Disclosure of Assets (Section 44): It replaced the strict 30-day limit for public
servants to furnish details of assets and liabilities, stating they must now be declared
in the form and manner as prescribed by the government.
●​ NGOs: It provided an extension to the time limit for trustees/board members of
NGOs receiving large government or foreign funds (over ₹1 crore or ₹10 lakh
respectively) to declare their assets.

Structure of the Lokpal

The Lokpal is a multi-member body consisting of one Chairperson and a maximum of 8

members.

Composition:

●​ Chairperson: Must be a former Chief Justice of India, former Supreme Court

Judge, or an eminent person with impeccable integrity and a minimum experience
of 25 years in relevant fields (e.g., anti-corruption, public administration, law,
finance).
●​ Members: Must constitute:
○​ Half (50%) members to be judicial members (former Supreme Court Judge
or former High Court Chief Justice).
○​ Minimum 50% of the Members should be from SC/ST/OBC/minorities and
women.
●​ Non-Judicial Member: Must be an eminent person with minimum experience of 25
years in relevant fields.

Term and appointment to the office of Lokpal

●​ Term: The Chairperson and Members hold office for a term of 5 years or until they
attain the age of 70 years, whichever is earlier.
●​ Appointment: They are appointed by the President upon the recommendation of a
selection committee.

Lokpal Selection Committee

The selection committee is chaired by the Prime Minister and consists of:

●​ The Prime Minister of India (Chairperson).

●​ The Speaker of Lok Sabha.
●​ The Leader of Opposition in Lok Sabha (or leader of the single largest opposition
party).
●​ The Chief Justice of India (or a Judge nominated by the CJI).
●​ One eminent jurist.

Lokpal search committee

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The selection committee constitutes a search panel (of at least eight persons) to create a
shortlist of candidates for the Chairperson and Members from a list prepared by the
Department of Personnel and Training. The selection panel has discretion in choosing names
from this shortlist.

Jurisdiction and powers of Lokpal

The Lokpal's extensive jurisdiction covers almost all public officials at the Union level and is
vested with significant investigative powers.

Jurisdiction Extends To:

●​ Prime Minister (with exceptions):

○​ Allegations of corruption relating to international relations, security, public
order, atomic energy, and space are excluded.
●​ Ministers, Members of Parliament, and Groups A, B, C and D officers of the
Central Government.
●​ Heads/Officials of any society or body set up by an Act of the central government, or
any body financed or controlled by the central government.
●​ Any person involved in abetting, bribe giving, or bribe-taking.
●​ Public officials must furnish details of their assets and liabilities and those of their
respective dependents.

Powers:

●​ Superintendence over CBI: The Lokpal possesses powers of superintendence and

authority to give directions to the CBI. An investigating officer referred a case by the
Lokpal cannot be transferred without the prior approval of the Lokpal.
●​ Civil Court Powers: The Inquiry Wing of the Lokpal is vested with the powers of a
civil court.
●​ Confiscation: Powers regarding the confiscation of assets, proceeds, receipts, and
benefits procured by corruption in special circumstances.
●​ Transfer/Suspension: Power to make recommendations regarding the transfer or
suspension of public servants connected with corruption allegations.
●​ Record Preservation: Power to give directions to prevent the destruction of records
during the preliminary inquiry.

Limitations

Despite its powerful mandate, the Lokpal institution faces limitations that potentially
compromise its effectiveness:

●​ Political Influence: The appointing committee consists of members from political

parties, raising concerns about placing the Lokpal under political influence.
●​ Vague Appointment Criteria: There are no concrete criteria to define an 'eminent
jurist' or 'a person of integrity,' potentially manipulating the appointment method.

60
 ●​ Lack of Whistleblower Protection: The Act is criticized for failing to provide
concrete immunity to whistleblowers.
●​ Discouragement of Complaints: The provision allowing inquiry against a
complainant if the accused is found innocent discourages people from filing
complaints.
●​ Exclusion of Judiciary: The judiciary is excluded from the ambit of the Lokpal.
●​ Lack of Backing: The Lokpal does not have any constitutional backing, and there
are no adequate provisions for appeal against its actions.
●​ Time Limit: No complaint against corruption can be registered after seven years
from the date the offense is alleged to have been committed.

Conclusion

The institution of the Ombudsman (Lokpal/Lokayukta) is a necessary step to address

deep-seated corruption, but its effectiveness depends heavily on its functional autonomy,
financial independence, and administrative independence from those it investigates.
Appointments must be transparent to minimize political bias. Ultimately, to tackle corruption
effectively, the focus must be on strengthening the institutions through true autonomy and
fostering a system of decentralized institutions with appropriate accountability
mechanisms to avoid concentrating excessive power in a single authority.

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The Administrative Tribunals Act, 1985

The Administrative Tribunals Act, 1985, was enacted by Parliament in exercise of the power
conferred by Article 323-A of the Constitution. Its core objective was to provide a
specialized and expedited adjudicatory mechanism for service matters, transferring the
jurisdiction previously held by the High Courts (except the Supreme Court) in relation to
these matters.

Structure of the Tribunal

The tribunal consists of a Chairman, Vice-Chairman, and other members, who may be
judicial or administrative members.

Member Type Qualifications Appointment

Judicial Member Must be or have been a Judge of the High Appointed by the
Court OR a member of the Indian Legal President in consultation
Service (Grade I for 3 years). with the Chief Justice of
India.

Administrative Must have held the post of an Additional Appointed by the

Member Secretary (for at least 2 years) or a Joint President.
Secretary to the Government of India, or
an equivalent post, or have adequate
administrative experience.

Chairman/Vice- Must attain the age of 65 years. Appointed by the

Chairman President.

State Tribunal Same qualifications apply. Appointed by the

Members President after
consultation with the
Governor of the
concerned state.

Term of Office (Section 8)

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 Position Maximum Term Maximum Age

Chairman/Vice-Chairman 5 years 65 years

Other Members 5 years 62 years

(Note: The constitutional validity of the 5-year term was challenged in S.P. Sampath Kumar v.
Union of India, where the court suggested it was not rational and should be reasonably
extended.)

Resignation and Removal (Section 9)

Members may resign by writing to the President.

Removal Process: A member shall be removed from office only by an order made by the
President on the ground of proved misbehaviour or incapacity. This requires:

1.​ An enquiry made by a Judge of the Supreme Court.

2.​ The member must have the right to be informed of the charges and be given a
reasonable opportunity of hearing.

The Central Government can make rules to regulate the procedure for investigating these
charges.

Jurisdiction of Central Tribunal (Section 14)

The Central Tribunal exercises all the jurisdiction, powers, and authority related to the
following matters, which were previously under the jurisdiction of other courts (except the
Supreme Court):

1.​ Recruitment for any civil service of the Union, All India service, civil post under the
Union, or civilian employees of defence services.
2.​ All service matters of the above employees, and also of employees of local
authorities/corporations owned or controlled by the Government of India.
3.​ All service matters of persons whose services have been placed by the State or a
corporation at the disposal of the Central Government.

Procedure and Powers of Tribunals (Section 22)

Administrative Tribunals have operational flexibility but must adhere to fundamental

principles:

63
 ●​ Procedure: A tribunal is not bound to follow the procedure laid down by the Code
of Civil Procedure, 1908. It has the power to regulate its own procedure but must
abide by the principle of natural justice.
●​ Speedy Justice: Tribunals must decide cases as rapidly as possible.
●​ Civil Court Powers: Tribunals possess powers similar to civil courts, including:
summoning persons, enforcing attendance and examination on oath, production of
documents, receiving evidence on affidavits, and reviewing its own decisions.

Key Case Laws

S.P. Sampath Kumar v. Union of India (1987):

●​ Facts: Challenged the constitutional validity of the Act, arguing that excluding the
jurisdiction of High Courts under Articles 226 and 227 destroyed judicial review, a
basic feature of the Constitution.
●​ Judgment: The Supreme Court upheld the validity of the Act, reasoning that the
concept of judicial review was not entirely excluded, as the Supreme Court's
jurisdiction under Articles 32 and 136 remained untouched. It held that judicial
review can be taken away from a particular area only if an alternative effectual
institutional mechanism is provided. Section 6(1)(c), which granted unrestricted
appointment power to the government, was held unconstitutional as appointments
must be made in consultation with the Chief Justice of India.

Union of India v. R. Gandhi (President, Madras Bar Association):

●​ Principle: The court upheld the constitutional power of Parliament to constitute

tribunals (like NCLT/NCLAT) and transfer judicial functions traditionally performed
by High Courts. The legislative competence for creating tribunals is traceable to
Articles 245, 246, and 247.
●​ Requirement: The court stressed that the constituted tribunals must respect and
maintain the principles of Rule of Law, Separation of Powers, and Independence
of the Judiciary. The creation of such tribunals must remain subject to judicial
review by superior courts to check if these principles are compromised.

Conclusion

Administrative Tribunals offer distinct advantages over ordinary courts, such as flexibility,
speedier and less expensive justice, and specialized expertise. However, critics argue they
risk violating the Rule of Law due to a lack of specified procedure and legal expertise.
Judicial intervention in cases like S.P. Sampath Kumar has been crucial in preserving the
independence of these tribunals by ensuring judicial review and requiring consultation with
the Chief Justice of India in the appointment process

64