ADMINISTRATIVE LAW (LAW751)

VII SEMESTER
 UNIT-1
INTRODUCTION TO ADMINISTRATIVE LAW and
DELEGATED LEGISLATION
 Introduction
• Administrative law is the legal framework within which public
administration is carried out. Administrative law is a branch of
public law that is concerned with the procedures, rules, and
regulations of a number of governmental agencies.
• Administrative law specifically deals with such administrative
agencies’ decision-making capabilities, as they carry out laws
passed by State and federal legislatures.
• Administrative law is that body of law which applies for
hearings before quasi-judicial bodies, boards, commissions or
administrative tribunals supplement the rules of natural
justice with their own detailed rules of procedure.
 Introduction
• Through jurisprudence, common law or case law, these principles have been
expanded and refined beyond their original simplistic design to form distinct bodies
of law forming together what the legal system refers to as administrative law.

• According to Dr. F.J Port "Administrative law is made up of all legal rules either
formally expressed by statutes or implied in the prerogative - which have as their
ultimate object the fulfillment of public law. It touches first the legislature, in that
the formally expressed rules are usually laid down by the body, it touches judicially,
in that:
a) there are rules which govern the judicial action that may be brought by or
against the administrative persons;
b) administrative bodies are sometimes permitted to exercise judicial powers;
c) it is of course essentially concerned with the practical application of law.”
 Evolution of Administrative Law

1. Administrative Law in ancient India – The Rule

of Dharma – The basic Principles of Natural
Justice.

2. Administrative Law under the British Rule in

India – Many Acts were passed by the British
Government for regulating health, morality,
transport and labour relations etc.
 Examples:
a. The State Carriage Act,1861 to grant
administrative license;
b. The Bombay Port Trust Act,1879 to establish first
Public Corporation;
c. The Northern India Canal and Drainage Act,1873
and The Opium Act,1878 accepted delegated
legislation;
d. The Indian Explosives Act,1884 to regulate the
trade and traffic in explosives.
3. Administrative Law in 21st Century
• Social, economic policies of the government had significant
impact on private rights of citizens, e.g. planning,
employment, education, health, housing, service, pension,
manufacture of goods, etc. It resulted in increase in delegated
legislation and thus AL became a live subject.

4. During World War – II

• The Defence India Act 1939 and its rules conferred ample
powers on the executive to interfere with life, liberty and
property of an individual with no judicial control over them.
5. Administrative Law after Independence –
• The activities and functions of the government
have further increased. Under the Industrial
Disputes Act, 1947, the Minimum Wages Act,
1948, and the Employment Insurance Act, 1948,
important social security measures have been
taken for those employed in industries.
[Link] philosophy of a welfare State has been
specifically embodied in the Indian Constitution
- Preamble, FRs and DPSP.
7. Even while interpreting all these Acts and the
provisions of the constitution, the judiciary started
taking into consideration the objects and ideals of
social welfare. That’s why AL is called as “Judge made
law”

8. The activities and powers of the government –

• The enforcement of rule of law and judicial review.
(Articles 226, 227, 32, 136 and PIL).
 Definition of Administrative Law
1. John Austin
 Austin has defined “administrative law as one
which determines the ends and modes to
which the sovereign power shall be exercised”
• According to him sovereign power should be
either exercised directly by the monarch or
entrusted to subordinate political agents
holding a position of trust.
 Definition of Administrative Law
2. Bernard Schawartz
 Bernard has defined “Administrative law to be
the law applicable to those administrative
agencies which possess adjudicatory authority
of a delegated legislation.”
 Definition of Administrative Law

3. Sir Ivor Jennings

“Administrative Law is the law relating to
the administration. It determines the
organization, powers and duties of the
administrative authorities”.
4. A.V. Dicey

 “Administrative Law relates to that portion of

a nation’s legal system which determines the
legal status and liabilities of all State officials”.
5. Prof. Wade

 “Administrative Law is the law relating to the

control of governmental power.”
6. K.C. Davis

 “Administrative Law is the law concerning the

powers and procedures of administrative
agencies, including the law governing judicial
review of administrative action.”
7. Garner

 “Administrative Law may be described as

those rules which are recognized by the courts
as law and which relate to and regulate the
administration of Government.”
 Sources of Administrative Law
A) Major sources
1) Constitution:
• Various administrative organs derive their
powers and functions from the Constitution,
such organs include the President, Ministers,
local government authorities etc.
 Sources of Administrative Law
2) Statutes:
• Most of administrative organs are statutory formed.
They derive their powers and functions from various
statutory instruments. Some statutes confer
legislative powers, quasi-judicial powers, powers to
maintain law & order and good governance etc.
• All these powers have to be exercised lawfully within
such limits set by the particular Act of the Parliament.
In that sense statutes become one of the principal
sources of administrative law.
 Sources of Administrative Law
3) Judicial decisions:
• Decisions by the Supreme Court in administrative
disputes form one of the major bases of administrative
law. Courts have always intervened in such cases where
administrative organs have acted unlawfully to the extent
of injuring or affecting individual rights.
• Using their inherent prerogative powers, courts have
been a reliable place for a victim to run and get his
respective remedy. (stare decisis - the legal principle of
determining points in litigation according to precedent).
 Sources of Administrative Law
4) Ordinances, Notifications and Circulars:
• Ordinances are issued by the President (at Union / Federal
level) and Governor (at State level) and are valid for a
particular period of time. These ordinances give additional
powers to administrators in order to meet urgent needs.
Administrative directions, notifications and circulars provide
additional powers by a higher authority to a lower authority.
In some cases, they control the powers.
 Sources of Administrative Law
5) Other sources:
• These include the common law principles, doctrine
of equity and such statutes of general application.
B) Subsidiary Sources:
• Books by prominent jurists and opinions from
prominent jurists.
• Thus Administrative Law is based on the well known
legal maxim ‘ubi jus ibi remedium’(wherever there is
a right, there is a remedy).
 Nature of Administrative Law
• AL deals with the powers of the Administrative authorities,
the manner in which the powers are exercised and the
remedies which are available to the aggrieved persons, when
those powers are abused by these authorities.
1) The Doctrine of Separation of Powers.
2) The three of branches of government.
3) Rule of Law.
4) Delegated legislation.
5) Control over delegated legislation.
6) The Administrative Law is functional.
7) Administrative functions – preventive steps like law and
order, licensing and rate fixing etc.
8) Administrative powers and quasi – judicial powers.
9) Execution of Laws, collection of taxes, conducting
elections are also administrative functions.
10) The labour problems such as strikes, lock-outs, etc.
11) The Administrative Tribunals and Industrial
Tribunals do not require the rigid procedure of
Evidence Act and Civil procedure.
12) The administrative authorities are empowered to
make rules, orders, regulations etc. subject to the
permission by Parent Act and Constitution.
13) Writs.
14) Conflict of interests(Public rights v. Private rights).

 As observed by Lord Denning “Properly exercised, the

new powers of the executive lead to the welfare
State, but abused they lead to the Totalitarian State”.
 Scope of Administrative Law
1) Administrative Law(AL) is a judge-made law. It
includes administrative circulars, policy statements,
memoranda and resolutions etc.

2) AL is a branch of public law in contradistinction to

private law. It primarily deals with the relationships
of individuals with the organized power.
 Scope of Administrative Law
3) AL deals with the organization and powers of
administrative agencies and quasi-administrative
agencies.
4) AL includes the study of the existing principles and
also the development of certain new principles
which administrative agencies and quasi-
administrative agencies must follow while exercising
their powers in relation to individuals, i.e. the
Principles of Natural Justice(PNJ), reasonableness
and fairness.
 Scope of Administrative Law
5) AL primarily concerns itself with the official
action which may be –
a) rule-making or quasi-legislative action;
b) rule-decision or quasi-judicial action;
c) rule-application or administrative action; or
d) ministerial action or pure administrative
action.
 Scope of Administrative Law
6) One of the main thrusts of the study of AL is on the
procedure by which the official action is reached.
Such procedure may laid down –
a) in the statue itself under which the administrative
agency has been created;
b) in the separate procedure code which every
administrative agency is bound to follow.
 Scope of Administrative Law
7) AL also includes within its study the control
mechanism which the administrative agencies are
kept within bounds and made effective in the
service of the individuals. This control mechanism
is technically called the “review process.” The
administrative action may be controlled by –
a) courts exercising writ jurisdiction;
b) courts exercising ordinary judicial powers through
suits, injunctions, and declaratory actions;
 Scope of Administrative Law
c) statutory authorities like Ombudsman, HRC and
other investigative agencies;
d) higher administrative authorities;
e) public opinion and mass media in the 21st century
is also an important control on any administrative
actions;
f) civil society and interest representations also play
an important role in controlling the arbitrary
exercise of public power both at pre-natal and
post-natal stages.
 Scope of Administrative Law
g) “Easy access to justice” also provides an effective
check on bureaucratic adventurism in the exercise
of public power. If access to justice is easy and
quick, it may deter administrative agencies from
developing an attitude which has been termed as
“fly-now-pay-later.”
h) Right to know, right to reply and discretion to
disobey also have inherent potentialities of proving
effective, though indirect, in providing a check on
administrative behaviour.
 Scope of Administrative Law

8) The study of AL is not an end in itself but a means to

an end. The focal point of the study of AL is
reconciliation of power with liberty.
 Reasons for growth of Administrative Law

1. Radical change in the philosophy of role of

the State;
2. Increasing urbanization;
3. To meet emergency situations;
4. Inadequacy of Judicial System (Tribunals is an
alternative mechanism);
5. Inadequacy of Legislative Process(Delegated
legislation is an alternative remedy);
 Reasons for growth of Administrative Law

6. Scope for experimentation;

7. Avoidance of technicalities;
8. Preventive Mechanism;
 As Freeman says, ”inspection and grading of meat answers
the consumer’s need more adequately than does a right to
sue the seller after the consumer is injured.”
9. AAs can take effective steps for the enforcement of
preventive measures e.g. suspension, revocation and
cancellation licenses, destruction of contaminated articles
etc.
• E.g: Hooch tragedy in TN June, 2024
• RBI Cancels license of City co-cooperative Bank, June, 2024
 Theories of Administrative Law
1. Red Light Theory

• According to this theory the primary object of AL is to control

governmental power. It is based on assumption that “every kind of
power tends to corrupt and absolute power tends to corrupt
absolutely” (Lord Acton). It has emerged from a fear of State
absolutism.
• State regulates and controls various activities of its subjects, there is a
very possibility of misuse or abuse of power. RLT seeks to protect
private rights and individual interests. Its objective is to keep
government agencies and administrative authorities within the
boundaries of law through judicial control.
 Theories of Administrative Law
2. Green Light Theory
• This theory does not concede arbitrary,
unrestricted, or absolute power to
administrative authorities. But whereas the
RLT favors judicial control, the GLT puts
emphasis on the political process. Control of
AAs under this theory is direct and internal
rather than indirect and external.
 Theories of Administrative Law
 Green Light Theory (conti…)
• The inbuilt mechanism with in GLT allows
interventions by the State in larger public interest
issues ensuring rights of citizens and the well-being
of society as a whole.
• This can be achieved through active involvement,
positive deliberation, effective consultation, creative
contribution, productive participation,
decentralization of power, freedom of information
and such other actions of the administration.
 Theories of Administrative Law
[Link] Light Theory
• Both the theories have their own merits and pitfalls. In
most legal systems, therefore, there is a combination of
two theories. In other words, the right path lies
somewhere between the pure "Red” and “Green” light
models, in an ALT.
• As observed by Huddlestone, a new relationship has
emerged between courts and those who derive their
authority from public law. It is a partnership based on a
common goal, viz. fostering highest standards a public
administration.
 Evolution of State
 Different stages of development of State

1. Laissez-faire State
2. Social Welfare State
3. Modern State
 Evolution of State
1. Laissez-faire State
• The concept of Laissez - Faire describes
environment where transactions between
private parties are free from State
intervention, including restrictive regulations,
taxes, tariffs and enforced monopolies. The
literal translation of this French phrase is “let
it be”.
 Evolution of State
• ‘Laissez Faire’ is an economic doctrine which opposes the
Govt. regulation or interference in commerce beyond
minimum necessary for a free enterprise system to operate
according to its own economic laws.
• The phrase ‘Laissez Faire’ stems from a meeting in 1680
between a powerful French Finance Minister Jean Baptiste
Colbert and a group of French businessmen led by a M. le
Gendre when Finance Minister asked how the French State
could be of service to merchants and help to promote the
commerce. Le Gendre replied simply ‘ Laissez – nous faire’
(Let us be).
 Evolution of State
2. Social Welfare State
• A welfare state has to serve the larger public
interest. It denotes a concept of government in
which the State plays a key role in the
protection and promotion of the economic and
social well-being of its citizens.
• The doctrine of ‘parens patriae’ refers to the
power of the State to act as a guardian for those
who are unable to take care of themselves.
 Evolution of State
3. Modern State
• Max Weber defines the modern state as - “A modern
state is a system of administration and law which is
modified by State and law and which guides the
collective actions of the executive staff; the executive is
regulated by statute likewise, and claims authority over
members of the association (those who necessarily
belong to the association by birth) but within a broader
scope over all actively taking place in the territory over
which it exercises domination”.
 Evolution of State

• The aim of a modern welfare state is to protect and

promote the social and economic welfare of the
people. Principles of equality of opportunity and
equitable distribution of wealth, etc., are considered
to be some of the most important roles of a
government.
 Relationship between Administrative Law
& Constitutional Law

1) The Constitutional Law(CL) is always genus whereas Administrative

law(AL) is a species of the Constitutional Law.

2) The CL is the supreme and highest law of the Country. AL is

subordinate to the CL.

3) CL deals with various organs of the State. AL is deals with the

organs of the State in motion(functional).

4) CL deals with the structure of the State. AL deals with functions of

the State.
5) CL gives guidelines with regard to the general principles
relating to organisation and powers of organs of the State and
their relation b/w citizens and the State. AL deals with the
powers and functions of administrative authorities.

6) CL gives guidelines about the international relations. AL deals

with the powers and functions of administrative authorities.

7) CL deals with the general principles of the State pertaining to

all branches. AL deals in details with the powers & functions of
administrative authorities, including the civil services, public
departments, local authorities and other statutory bodies
exercising administrative powers, quasi- judicial powers etc.
8) CL demarcates the constitutional status of Ministers and
public servants. AL is concerned with the organisation of the
services or the working of the various Govt. departments.

9) CL imposes certain negative duties on administrators, viz.,

not to violate the FRs of the citizens etc. It also imposes
certain positive duties on administrators viz. implementation
of social welfare schemes. The administrators have to follow
CL first and next AL.

10) The CL has complete control over the AL and administrators.

The administrators should perform their functions with
utmost obedience to CL. AL is just a subordinate to CL.
11) The CL gives the power of Supreme Legislation to the
Parliament. The AL gives the power of the sub-ordinate
legislation to the Executive, which is too under the control of
the Parliament.
 Rule of Law
• It was discussed by ancient Greek philosophers
such as Plato and Aristotle around 350 BC.
 Plato wrote:
• “Where the law is subject to some other authority
and has none of its own, the collapse of the state,
in my view, is not far off; but if law is the master of
the government and the government is its slave,
then the situation is full of promise and men enjoy
all the blessings that the gods shower on a state”.
 Rule of Law

 Aristotle also endorsed the concept of Rule of

law by writing that “law should govern and
those who are in power should be servants of
the laws.”
 Rule of Law
 Rule of Law:

• The term “Rule of Law” is derived from the

French phrase ‘la principe de legalite’ (the
principle of legality) which refers to a
government based on principles of law and
not of men. In this sense the concept of ‘la
principe de legalite’ was opposed to arbitrary
powers.
 Meaning of Rule of Law

• According to Oxford Advance Learner’s Dictionary -

• “Rule of law means the situation in which all the citizens as

well as the state are ruled by the law”.

• According to Black’s Law Dictionary -

• “Rule of law” means legal principles of day to day

application, approved by the governing bodies or
authorities and expressed in the form of logical
proposition”.
 Meaning of Rule of Law

 Sir Edward Coke: the Chief Justice in James - I’s reign

was the originator of this concept. In a battle against
the King, he maintained successfully that – “the King
should be under God and the Law, and he
established the supremacy of the law”.
 Caroline Kennedy:
• “The bedrock of our democracy is the rule of law and
that means we have to have an independent
judiciary, judges who can make decisions
independent of the political winds that are blowing.”
 Rule of Law
 A.V. Dicey – Three Principles of Rule of Law
1. Supremacy of Law
2. Equality before Law
3. Predominance of Legal spirit
1. Supremacy of Law
a) Supremacy of Law is the central and most important
feature of Common Law.
b) Law is the absolute supreme and predominant as opposed
to influence of arbitrary power or discretionary power.
c) English men are ruled by the Rule of Law and Law alone.
d) A man can be punished by the Rule of Law and by nothing else.
e) Prof. Wade says, the rule of law requires that the Government
should be subject to the law, rather than the law subject to the
Government.
2. Equality before Law
a) There must be equality before law or equal subjection of all
classes to the ordinary law.
b) There is no need for extraordinary tribunals or special courts to
deal with cases of Government and its servants.
c) Dicey accepted that administrative authorities are exercising
‘judicial’ functions though they are not ‘courts’.
3. Predominance of Legal spirit
a) Rights are the result of judicial decisions in England.
b) The rights are result of court judgments rather than from being
enshrined in the Constitution.
c) The Constitution is a consequence of the rights of the
individuals.
d) The Courts are the guarantors of the liberty.
e) Rights would be secured more adequately if they were
enforceable in courts rather than just being written in the
Constitutional document.
f) Mere incorporation in a written constitution is of no use in the
absence of effective remedies of protection and enforcement.
Advantages:
1. It helped to make administrative authorities confine to their
limits.
2. It became a yard stick to test administrative actions.
3. It helped for the recognition and the growth of the concept of
administrative law.
 Disadvantages: (Criticism)
1. Dicey thesis was not completely accepted even in his era.
2. Even at this time, there was a long list of statutes which
permitted the exercise of discretionary powers of the Crown
which could not be called to the court.
3. Dicey instead of not just disallowing arbitrary power has also
insisted that administrative authorities should not be given
discretionary powers.
4. Dicey failed to distinguish between ‘arbitrary powers’ to
‘discretionary powers’.
5. He misunderstood the real nature of ‘droit administratif’
which was successful in France.
 Rule of Law under the Indian Constitution
a) Preamble
b) Article 13- Any law is found in violation of any provision of
the Constitution is declared as invalid.

c) Article 13(1)- All laws in force in the territory of India

immediately before the commencement of the Constitution,
in so far as they are inconsistent with the provision of Part-
III, shall, to the extent of such inconsistency, be void.

d) Article 13(2) – State shall not make any law which takes
away or abridges the fundamental rights and any law made
in contravention of this clause, shall, to the extent of the
contravention, be void.
e) Article 14 – ”Equality before law” implies the absence of any
special privilege in favour of any individual. It ensures that
all are equal before the law. “Equal protection of law”
implies equal protection of all alike. In the same situation
and under like circumstances.

• Article 14 forbids class legislation but it doesn’t forbid

classification which rests upon reasonable grounds of
distinction.

Exceptions:
1. Article 361 - the President or the Governor of a State shall
not be answerable to any court for the exercise and
performance of duties of his office.
2. Art 361(2) – “no criminal proceedings shall be
instituted or continued against the President or the
Governor of any court during his term of office.”
3. Article 361(3) - “no process for the arrest or
imprisonment of the President or the Governor of a
State shall issue any Court during term of his office.”
4. Article 361(4) – “no civil proceedings in which the
relief is claimed against the President or of a State
Governor, shall be instituted during his term of office.”
5. Foreign diplomats are also allowed immunity from the
jurisdiction of the courts.
• Art.121-The Judges have also been allowed
some special privileges and protection.

 (Note: Art. 121 - Restriction on discussion in Parliament: No

discussions shall take place in Parliament with respect to the
conduct of any Judge of the Supreme Court or of a High Court
in the discharge of his duties expect upon a motion for
presenting an address to the President praying for the
removal of the Judge as hereinafter provided).
7. Art.19- It will be valid only if the following conditions are
fulfilled -
a) Restrictions have been imposed by the State as defined in Article 12.
b) Restrictions have been imposed by a law and the law is a valid law. The
Executive cannot impose the restriction without there being a law
authorizing it to do so.
c) Restrictions must be on any of the grounds mentioned in clauses (2) to
(6) of Art.19. (the sovereignty and integrity of India, the security of the State, friendly relations
with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or
incitement to an offence).
d) Restrictions must be reasonable.
8. Article 20 – Art.21(1) “no person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the
offence.
9. Article 20(2) – “no person shall be prosecuted and punished for the
same offence more than once.”
10. Article 20(3) –” no person accused of the offence shall be compelled to
be witness against himself.”
11. Article 21 – guarantees to all persons (citizens and non-
citizens)the right to life and personal liberty. It provides that
“no person shall be deprived of his life or personal liberty
except according to the procedure established by law.”
(Maneka Gandhi v. Union of India(AIR 1978 SC 597)

12. Article 265 – “no tax shall be levied or collected except by

authority of law.”

13. Article 300A -“no person shall be deprived of his property

save by authority of law. A person cannot be deprived of his
property merely by the executive order or executive
direction.”(44th amendment, 1978)
 Case laws:
1. Kesavananda Bharati v. State of Kerala(1973),the Supreme
Court enunciated the rule of law as one of the most
important aspects of the doctrine of basic structure .

2. Maneka Gandhi v. Union of India (1978),the Supreme Court

declared that Art.14 strikes against arbitrariness.

3. Smt. Indira Gandhi v. Raj Narain (AIR 1975 SC 2299)

• Art.329-A was inserted in the Constitution under 39th
amendment, which provided certain immunities to the
election of office of Prime Minister from judicial review. The
SC declared Art.329-A as invalid since it abridges the Basic
Structure of the Constitution.
 conti…
• “The rule of law postulates the pervasiveness
of the spirit of law throughout the whole
range of government in the sense of excluding
arbitrary official action in any sphere….It is an
expression to give reality to something which
is not readily expressible.”
4. A.D.M. Jabalpur v. Shivakant Shukla(AIR 1976 2 SCC
521)(popularly known as ‘Habeas Corpus’ case)

 The question before SC was, whether there was any

rule of law in India apart from Art.21 of the
Constitution?
• The SC by majority held that there is no rule of law
other than the Constitutional rule of law. Art.21 is
our rule of law. If it is suspended, then there is no
rule of law.
5. Bachan Singh v. State of Punjab(AIR 1980 SC 898)
(Popularly known as ‘Death Penalty Case’)
• “The rule of law permeates the entire fabric of the
Constitution and indeed forms one of its basic
features. The rule of law excludes arbitrariness, its
postulate is ‘intelligence without passion’ and reason
free from desire. Wherever we find arbitrariness or
unreasonableness, there is denial of the rule of law.”
 6. Lakshman Singh v. State of Bihar(Now Jharkhand)
(Criminal Appeal No. 606 of 2021, SC)

• The case deals with charges levelled against the accused

person for rioting and interrupting the process of the
conduct of an election. The accused was convicted by the
court under Sections 323, 307, 147, 149 and 379 of the IPC.
 Facts:

1) An FIR was lodged at Paatan Police Station by the first informant, Rajeev
Ranjan Tiwari on 26.11.1989, alleging inter alia that on the eve of general
election, he was working as a worker of Bhartiya Janta Party at village.
2) The accused persons, who belong to another village Naudiha came armed
with lathis, sticks, country made pistols and asked him to stop issuing voter
slips and handover the voters list which he was possessing and, on his
refusal, the accused persons started physically beating him with hands, fists,
lathis and sticks; the brother of the first informant, upon knowing about the
incident came to rescue him and at that time accused.
3) He fired gun shot at injured with his country made pistol, due to which he
received pellet injuries. The accused fired at another, due to which he was
injured.
4) It was further alleged that due to scuffle, accused snatched wrist watches;
the villagers rushed there and then all the accused persons ran away towards
village Naudhia.
 Issues :
1) Whether the offences committed under Sections 323 and
147 of the IPC valid or not?
 (Sec.323: The punishment for the offense of hurt that is caused voluntarily
and it is hurt described as in section 321. The IPC has two types of Hurt,
Hurt and grievous hurt.)
 (Sec.147: Whoever is guilty of rioting, shall be punished with
imprisonment of either description for a term which may extend to two
years, or with fine, or with both.)
2) Whether the Injury Report is brought on record and are they
comprehensible to be convicted under Section 323 of IPC?
• The SC held that democracy and free elections are a part of
the basic structure of the Constitution. It is also further
observed that the election is a mechanism which ultimately
represents the will of the people. The essence of the electoral
system should be to ensure freedom of voters to exercise
their free choice.
• Therefore, any attempt of booth capturing and/or bogus
voting should be dealt with iron hands because it ultimately
affects the rule of law and democracy. Nobody can be
permitted to dilute the right to free and fair election.
 Preservation and Enforcement of Rule of Law
1. Article 141: The law declared by the Supreme Court shall be
binding on all courts except Supreme Court(Art.137 review of
judgment or order of the SC itself) within the territory of
India.
2. Article 142: The SC, in the exercise of its jurisdiction may
pass such decrees or make such orders as is necessary for
doing complete justice in any cause or matter pending before
it. Any decree so passed or order so made shall be
enforceable throughout the territory of India.
3. Article 144: All authorities ( civil or judicial)in the territory of
India, shall act in aid of the SC. The authorities which do not
comply with its direction, shall be liable for contempt of
Court.
4. Articles 226, 227, 32, 136 and PIL.
 Doctrine of Separation of Powers
1. The Doctrine of Separation of powers was originated by Aristotle and developed
by John Locke (‘Second Treatises of Civil Government 1689), and Montesquieu
(‘The Spirit of the Laws’ 1748).
2. Montesquieu - Theory of Separation of Powers - The main object as stated by
Montesquieu in the doctrine of separation of power is that ‘there should be
government of law rather than having will and whims of the official’.
3. Wade and Phillips:
a) The same persons should not form part of more than one of the organs of the
governments, e.g., Ministers should not be responsible to the Parliament.
b) One organ of the government should not control or interfere with the exercise of
its functions by another.(Article 50 of the CN)
c) One organ of the government should not exercise the functions of another.
3. Lord Acton: ”Every power tends to corrupt and absolute
power tends to corrupt absolutely.”

4. If Legislature, Executive and Judiciary in one person =

Monarch, Autocracy, Tyranny.( e.g. Louis XIV in France, Hitler,
Saddam Hussein, Musharraf, Md. Gadhafi).

5. Blackstone: “If legislative, executive and judicial functions

were given to one man, there was an end of personal liberty.”
 Merits:
1. The Doctrine of Separation of Powers had tremendous
impact on the development of administrative law and
functioning of the governments.

2. Madison: “ The accumulation of all powers, legislative,

executive and judicial in the same hands, whether of one, a
few or many and whether hereditary, self-appointed or
elective may justly be pronounced the very of tyranny.”

3. The Constituent Assembly of France declared in 1789 that

there would be nothing like a Constitution in the country
where the DSP was not accepted.
 Defects:
1. There was no separation of powers under the British Constitution. At no
point of time, this doctrine was adopted in England.

2. Donoughmore Committee: “In the British Constitution there is no such

thing as the absolute separation of the legislative, executive and judicial
powers.”
3. Prof. Ullman: “England was not the classic home of separation of
powers.”

4. Woodrow Wilson: “ The trouble with this theory is that Government is

not a machine, but a living thing. No living thing can have its organs
offset against each other as checks, and live. On the contrary, its life
dependent upon their co-operation, their ready response to the
commands of instinct or intelligent, their amicable community of
purpose. Their cooperation is indispensable, their warfare fatal.”
5. Justice Frankfurter : “Enforcement of a rigid conception of separation of
powers would make modern Government impossible.”
6. Alan Stewart Paton: “It is extremely difficult to define precisely each
particular power.”
7. Friedmann and Benjafield: “The truth is that each of the three functions
of government contains elements of other two and that any rigid attempt
to define and separate those functions must either fail or cause serious
inefficiency in government.”
8. The Modern State is welfare State and it has to solve complex socio-
economic problems and in this sate of affairs also, it is not possible to
stick to this doctrine.
9. The modern interpretation of the DSP means that discretion must be
drawn between ‘essential’ and ‘incidental’ powers and one organ of the
govt. Cannot encroach upon the essential functions of another organ but
may exercise some incidental functions thereof.
10. Fundamental object of the Montesquieu DSP was liberty and freedom of
an individual, but that cannot be achieved by mechanical division of
functions and powers. In England, DSP is not accepted and yet it is known
for the protection of individual liberty.
 Significance of DSP:

1. The DSP in the strict sense is undesirable and impracticable and therefore
it is not fully accepted in any country. Nevertheless, its value lies in the
emphasis on those checks and balances which are necessary to prevent
an abuse of powers of the executive.

2. The most important aspect of the DSP is judicial independence from

administrative discretion. There is no liberty, if the judicial power is not
separated form the legislature and executive.

3. Placing emphasis on independent judiciary, International Congress of

Jurists held in New Delhi in 1959, had resolved: “ An independent
judiciary is an indispensable requisite of free society under the Rule of
Law. Such independence implies freedom from the executive or the
Legislature with the experience of judicial function.”
1. Theory of Separation of Powers in U.S.A:

a) Article I – The legislative powers are vested in the Congress.

b) Article II - The executive powers are vested in the President.
c) Article III - The judicial powers are vested in the Judiciary.

d) Jaffe and Nathanson: “ The division of our Government into three great
establishments is an indisputable fact – writ large and clear in the basic
documents.”
e) Jefferson: “ The concentration of legislative, executive and judicial
powers in the same hands is precisely the definition of despotic
Government.”

2. Theory of separation of powers in England:

• As a matter of fact at no point of time was this doctrine accepted in its
strict sense in England. In reality the theory Integration of Powers has
been adopted in England.
3. Theory of Separation of powers in India:
1) RS Ram Jawaya Kapur v. State of Punjab (AIR 1955 SC 549)
 Facts: Nationalization of publication, printing and selling of textbooks by the
Punjab government.
 Issues: i) Executive could not function without any law for that purpose; ii)
Violation of Article 19(1)(g).
 Held: Both contentions raised by the petitioners were rejected by the SC.
• Mukherjea J. : “ The Indian Constitution has not indeed recognised the DSP in
its absolute rigidity but the functions of the different parts or branches of the
Government have been sufficiently differentiated and consequently it can very
well be said that our constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong to another.”

2) Golak Nath v. State of Punjab (AIR 1967 SC 1643)

• Subba Rao J. observed: “ The Constitution brings into existence different
constitutional entities, namely, the Union, the States and the Unions Territories.
It creates three major instruments of power, namely, the Legislature, the
Executive and Judiciary. It demarcates their jurisdiction minutely and expects
them to exercise respective powers without overstepping their limits. They
should function within the spheres allotted to them.”
3) I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861)

 Facts:
• This case arose when The Gudalur Janmann Estates (Abolition and
Conversion into Ryotwari), Act, 1969 (the Janman Act), that endowed
forest lands in the Janman estates in the State of Tamil Nadu, which was
struck down by the Supreme Court in Balmadies Plantations Ltd and Anr.
v. State of Tamil Nadu (1972) 2 SCC 133)“as the same was not found to be
a measure of agrarian reform protected under Article 31-A of the
Constitution.” The Janman Act was inserted in the Ninth Schedule
through Thirty-Fourth Amendment of the Constitution (1974).
 Issue
• Whether after 24.04.1973 during which the Basic Structure
Doctrine was propounded in the landmark judgment of
Keshavananda Bharti v. State of Kerala, can the Parliament make
legislations immune by inserting them in the Ninth Schedule and
thereby restraining it from the purview of judicial review under
Article 31-B and, provided that, what would be its impact on
court’s power for judicial review?

• The SC held that the constitutional validity of the ninth schedule

laws was to be judged by the direct impact and effect test, i.e.,
rights test, according to which it was not the form of the law
rather the effect of such law which would act as the determinative
factor and that It would be for the court to decide whether such
interference was justified and whether it amounted to violation of
basic structure doctrine.
 4) SC Advocates - on - Record v. Union of India
{W.P No (Civil)- 13 of 2015}(NJAC Case)

• After that 99th constitutional amendment (2014) was introduced

in the Parliament by which the National Judicial Appointments
Commission (NJAC) was all set to remove the Collegium System
for appointment of judges in higher courts. A new articles 124(A),
124(B) and 124(C) was added to the Constitution.
• It comprised of CJI, two other senior most judges of SC , the
Union Minister of Law and Justice and two eminent persons
(nominated by a committee consisting of the CJI , Prime Minister
of India, and leader of opposition in Lok Sabha and in case there
is no leader of opposition then the leader of single largest party
in Lok Sabha).
• Parliament enacted the NJAC Act, which also received the
assent from the President 31.12.2014. The same was also
brought into force, with effect from 13.04.2015. The above
amendment was challenged through several petitions which
were collectively heard.

 There are mainly three issues involved in this case:

1) The first and foremost issue is how the judges of the higher
courts i.e. the High Court and the Supreme Court should be
selected?
2) Whether the 99th amendment is ultra vires of the
constitution as it obliterate the basic structure of the
constitution?
3) Whether judicial review in this case is correct?
• This verdict is not only about the appointment of the judges
by the judges, but the independence of the Indian judiciary. A
five-member constitutional bench of the Supreme Court with
ratio of 4:1 gave a landmark judgment which declared the 99th
amendment (2014) unconstitutional and rendered National
Judicial Appointments Committee nugatory (of no value or
importance).
 Droit Administratif
 Meaning:-
• “Droit Administratif” can be defined as a body of rules which
determine the organisation and the duties of public
administration which regulate the relations of the
administration with citizens of the State.
• This is a French legal system, known as Droit Administratif,
there are two types of laws and two sets of courts
independent each other. Whereas ordinary courts administer
ordinary civil law between subjects and subjects, and
administrative courts administer the between the subject and
the State.
 Droit Administratif
 An administrative authority or official is not subject to the
jurisdiction of ordinary civil courts exercising powers under
the civil law in disputes b/w private individuals.
 All claims and disputes in which theses authorities or officials
are parties fall outside the scope of the jurisdiction of
ordinary civil courts and they are dealt with and decided by
special tribunals. It was regularly put into practice by
Napoleon in the 18th century.
 Droit Administratif
 Droit Administratif includes three rules:
1. Rules dealing with administrative authorities and officials:
• These relate to appointment, dismissal, status, salary and duties etc.

2. Rules dealing with the operation of public services to meet the needs of
citizens
• These services may be operated either wholly by public officials or under
their supervision or they may assist private agencies to provide public
utility services.
3. Rules dealing with administrative adjudication
• If injury is done to a private citizen by the administration, the matter would
be decided by the administrative courts.”Conseil d’Etat” is the highest
administrative Court in France.
 Classification of Administrative actions or functions
1. Rule-making or quasi legislative action: rules, regulations,
by-laws etc.
 Scwartz : “ If particular function is termed ‘legislative’ or rule-
making’ rather than ‘judicial’ or ‘adjudication’, it may have
substantial effects upon the parties concerned. If the function
is treated as legislative in nature, there is no right to a notice
and hearing unless a statute expressly requires them.”

 e.g.
a) Fixation of price
b) Declaration of a place to be market yard
c) Imposition of tax
d) Establishment of Municipal Corporation under the statutory provision
e) Extension of limits of a town area committee etc. are held to be
legislative functions.
2. Rule decision action or Quasi – Judicial action:
 The word ‘Quasi’ means ‘not exactly’. An authority is
described as ‘quasi-judicial’ when it has some of the attributes
or trappings of judicial functions, but not all.
 A quasi - judicial decision is nearer the administrative decision
in terms of its discretionary element and nearer the judicial
decision in terms procedure and objectivity of its end-
product.
 e.g.
a) Disciplinary proceedings against students.
b) Dismissal of an employee on the ground of misconduct.
c) Confiscation goods.
d) Cancellation of examinations.
e) Determination of citizenship.
f) Cancellation, suspension, revocation of licence etc.
3. Rule application action or Administrative action:
 Ramjawaya Kapoor v. State of Punjab (AIR 1955 SC 549)

 Mukhrjea J, CJ: “ It may not be possible to frame an exhaustive definition of

what executive functions means and implies. Ordinarily, the executive
powers connotes the residue of governmental functions that remain after
legislature and judicial functions are taken away.”
 The administrative functions of those functions which are neither legislative
nor judicial in character.
e.g.
a) An order of preventive detention.
b) An order of acquisition or requisition of property.
c) An order setting up a commission of inquiry.
d) An order granting sanction to prosecute a public servant.
e) Appointment of Arbitrator by Chief Justice or his nominee etc.
4) Ministerial or pure administration action:
• Ministerial administration action is that action of the
administrative agency which is taken as a matter of duty
imposed upon it by the law devoid of any discretion or
judgment. Therefore, a ministerial action involves
performance of a definite duty in respect of which there
is no choice. For instance, Collection of revenue or tax
may be one such ministerial action.
• Furthermore, if the statute requires that the agency shall
open a bank account in a particular bank or shall
prepare the annual report to be placed on the table of
the Minister, such actions shall be classified as
ministerial.
Distinction b/w Legislative & Judicial functions
 Legislative Functions
1. Law-making is the legislative function.
2. The Parliament and State Legislative Assembly make the laws.
3. Laws are the result of legislative function and are applicable to all.
4. Legislation is a new source of law.
5. It allows division of labour. Therefore, it increases efficiency.
6. Delegation and sub-delegation are found only in legislative
functions.
7. Anticipation is the advantages of legislation. It foresees the
consequences of certain and systematic.
8. Legislation is made for future. However, in rare cases, laws can be
made enforceable with retrospective dates. It creates new rights
and liabilities.
9. Legislative function is complete, certain and systematic.
10. It creates new rights and liabilities.
 Judicial functions

1. Interpretation is the judicial function.

2. The higher courts interpret such laws.
3. Judgment is the result of judicial function and is applicable only to the
parties concerned in majority cases.
4. Judicial function is also a source of law, but comes next to the legislation.
5. It interprets the minutes points of man’s thoughts and applies them into
the cases.
6. Judge-made law is the creation of judicial function.
7. Anticipation is quite inconsistent with judicial function.
8. Judiciary inquires past and present.
9. Judicial function differs from case to case. It goes into minute things,
whereas legislative function goes into general ways.
10. It determines the existing rights and liabilities. It cannot create new
rights.
 Distinction b/w Administrative &Legislative functions
 Administrative Functions:
1. The executive has only delegated legislative powers.
2. The legislative power of executive is flexible.
3. It functions according to its present day needs.
4. The legislative order made by executive is supplement to the supreme
legislation, but cannot supplant it.
5. If a legislation made by administrative is against the FRs and against the
PNJ, such legislation can be quashed by Courts by writ of Certiorari.
6. Administrator has to give reasons for their decisions to the parties
concerned and mainly to their superior officers.
7. All administrative action need not be published.
8. If an exemption is made in favour of an individual, it is administrative in
nature.
 Legislative functions
1. The Parliament is the supreme legislative power.
2. The legislative power of the Parliament is rigid.
3. It looks to future.
4. The legislative made by Parliament and State Legislatures always superior
to the administrative legislation.
5. A legislation made by the Parliament cannot be interfered by Courts. The
SC, in certain cases, is empowered to quash the provisions of the Acts, if
such provisions are against the FRs.
6. The legislation need not give reasons. However, in every Act, the objects
and reasons are explained.
7. All legislations shall necessarily, be published.
8. If an exemption is made in favour of class of people, it is legislative in
nature.
 Distinction b/w Judicial & Quasi-judicial functions

 Judicial Functions:
1. As lis inter partes ( a dispute b/w two parties) is an essential characteristic
feature of judicial function.
2. The Rules of procedure i.e. Rules of Evidence, CPC, etc. are strictly followed.
3. The evidence shall be taken on oath.
4. The court fee, as per rules, is required to be paid.
5. The doctrines of precedents, ‘stare decisis’ (the legal principle of
determining points in litigation according to precedent) etc. shall strictly be
followed.
6. No man shall be judge in his own case.
7. The Court is the real forum of judicial proceedings.
 Quasi-judicial functions
1. A lis inter partes is not an essential characteristic feature
of quasi-judicial function.
2. The Rules of Evidence, CPC., CrPC., etc. are not strictly
followed.
3. The evidence is not taken on oath.
4. The Court fee is not required to be paid.
5. These doctrines are not followed strictly.
6. Some times, it may be relaxed here.
7. It is only a trapping of a Court, but in reality, it is not a
court.
 Distinction b/w Administrative & Quasi –
judicial functions
 Administrative Functions:
1. The decision of a administrative function may positively
affect upon the person.
2. An administrative action cannot be challenged before
the Court.
3. Administrative function decides the matter subjectively.
4. An ordinary administrative function does not require
such duty to act judicially.
5. Purely administrative order does not require to give
reasons.
 Quasi-judicial functions
1. The decision of quasi-judicial function may adversely
affect upon the person.
2. A quasi-judicial decision can be challenged before the
superior court and can be rectified by the writ of
Certiorari, Prohibition etc.
3. It decides matters objectively.
4. An administrative officer must have a duty to require
such duty to act judicially then only it becomes quasi-
judicial function.
5. A quasi-judicial decision should have reasons.
Thank You