Administrative law is judge-made law, not completely a statutory law.

Therefore, there are

changes in the stance in such law.

3 terms generally interchangeable:

1. Executive – 2 types (1) appointed Eg: collector (2) elected Eg: ministers; implements
law/policies/programmes made by the Legislature or themselves
2. Administrative/administration – all the functionaries, bodies and individuals involved
in administering the programmes and policies of the State
3. Government – Executive and Administration together forms the Government

In America, administration is considered to be the 4th organ of the Government, thereby

making a distinction between the elected and appointed Executive. In India, no such
differentiation is made.

Administrative law is a heuristic science i.e. an organised knowledge. This implies that it is
based on experiments and it changes from time to time depending on our needs, facilities etc.

It is a branch of Public Law. If you divide the whole gamut of law into 2, you get private
law [regulates the relations of people inter se] and public law [regulates the relations of
individuals with the organised power i.e. the Government]. This Public Law includes only 2
laws: Constitutional law and Administrative law.

If Constitutional law is anti-majoritarian, then Administrative law is anti-authoritarian.

Majoritarianism is the idea that whatever the majority decides shall be deemed correct and
implemented. But Constitutional Democracies are not majoritarian.

Eg: if the majority in India decided that minorities shall not have voting powers, it will not be
deemed correct or implemented. Majority opinion will only be accepted if it is in consonance
with the Constitutional principles.

Similary, Administrative law is anti-authoritarian; this is based on the basic principles:

(1) that no power is without a limit

(2) that every exercise of public power is a public trust i.e. if the law gives any administrative
officer a power, he cannot say it is his power as he doesn’t own the power but he is merely
the trustee of the people. Therefore, Administrative law says that one cannot exercise such a
power in any manner he likes, as he is not the owner; it is a power of the people.
Eg: A request to change cadre by a widowed IAS officer to her hometown, in order for her
parents to look after her child while she works was made; this request was denied, even
though this power to change the cadre in case of special hardships exists with the
government; the government could not deny it simply because it has never exercised this
power before; since it is the people’s power, it must be used for the benefit of the people. In
this case, they could’ve said that there was no special hardship.

(3) that every power is likely to be misused; in this case administrative law tries to prevent
misuse and if it has been misused then this law tries to find the best method to compensate.

Administrative law deals with the interface of the people with the administration. It enforces
rule of law on the administration. There are 4 concepts:

1. Rule by man – Eg: in a monarchy a person has committed theft; the person is brought
before the monarch since there is no law laid down; rules by decrees; therefore
decrees that the thief’s hands should be cut off.
2. Rule by law – lex i.e. positive law; Eg: in certain middle eastern countries, the law is
laid down that for theft, the punishment is cutting off of hands i.e. do what you wish
at your own peril.
3. Rule of law – legum i.e. natural law; this includes rule by justice; the above example
would not be fair, reasonable and just; based on the natural instinct of man
4. Rule by justice – Now, it is not sufficient that the law is passed by parliament and is
fair, reasonable and just, we are merely concerned with the fact that justice must be
done to the person who has suffered and has been wronged.

Maneka Gandhi v. UoI 1976: highlighted the details of rule of law and rule by law; she was
required to appear before the Shah Committee with respect to the 1975 Emergency; she was
thus not allowed to leave the country for which the govt impounded her passport without any
notice; she claimed her right under A. 21 was violated in the Court as she wasn’t allowed to
explain anything; the Govt. said that A. 21 included the fact that the right can be violated if it
was done in accordance with the rule of law and since there was no law with respect to the
impounding of passports, this was the correct method.

SC view: The law must not be merely passed by the Parliament, but must also be fair
reasonable and just. There is no procedure, that doesn’t give the right to treat a person in any
way they please. The Govt. must thus work according to the rule of law, not just rule by law.
Law can be divided into another two parts: Higher law [rule of law] and Positive law. In
this, the higher law is superior and it determines the validity of the positive law. If the
positive law violates the higher law, then it is not valid. Eg: if the Parliament makes a law
declaring that all terrorists shall be shot at sight without any notice, it is not valid as violates
the higher law.

In 500 BC, a Greek philosopher named Sophocles wrote “Antigone”, which is a drama. This
is considered by western countries as a genesis for their human rights and higher law. He
wrote about the Kingdom of Thebes, whose King rules by decrees i.e. the command of the
sovgn is law. After the King died, his 2 sons and brother had a tussle for the throne, and
ultimately his brother won. The 2 sons thought there was injustice and thus declared war
against the new King. In this war, the elder son is killed, while the younger son fled. The
King now passed a decree [positive law] saying that Polyneices, the younger son, is a traitor
and thus must be arrested and killed and thereafter his body was to be thrown into the open to
be eaten by vultures and dogs. A second decree said if anyone tries to give this body a burial,
that person shall also be considered a traitor and thus killed. Polyneices was arrested and
killed in the manner decreed. The sister of the Polyneices, called Antigone, who was the first
person to exercise reason. She reasoned to herself, that no matter how wicked a person may
be, but after death everyone is entitled to a decent burial. She then had the courage to go and
give a burial to her brother’s body, and thus violated the positive law. Upon hearing this
news, the King called this lady to the court and asked if she knew the law and she said she
did. He then asked why she violated his law, to which she gave an answer which is the
genesis of the higher law: “your law violates a higher law, laid down by the Gods which is
fair, reasonable and just and claims that everyone has a right to a decent burial. Since your
law violated the higher law, it is no law, thus everyone can violate it.” It was believed that the
higher law was given by the Gods.

Then they started questioning the existence of God, after which they decided that nature is the
source of higher law. Nature works on certain principles which are fair, reasonable and just,
and thus the higher law depends on this.

The Modern man asked how nature can give such a law. They then said this higher law is
inherent in every individual to be treated with fairness, reasonableness and justice. It cannot
be waived or alienated. It is based on the natural instinct of man. If there is thus any positive
law which violates these principles, it is an invalid law.
Therefore, every Constitution is connected to something higher, and the Courts identify it and
give it a concrete shape.

The term “administrative law” is considered in 2 senses. There are 2 basic systems of law:
(1) civil law/continental system which is present in Europe (2) common law system, followed
by most countries which are away from Europe and were colonised by the British; it was
developed in the UK.

The term “administrative law” in a civil law system is completely different. This system
developed in France after Napolean took over as the ruler, post the French Revolution. He
wanted quick socio-economic development of the country but he realised there was one
difficulty of the ordinary courts. [Similarly in India, the govt wanted quick changes in the
land systems. This led to lots of litigation over the land reforms itself. Nehru said “our judges
are living in ivory palaces, they do not understand the poverty of India.”] Thus, Napolean
created 2 systems of Courts and laws. One system of court and law he called civil law system
and another was called administrative law system.

If there was a dispute between 2 individuals, it would go to the civil courts and the law
applied would be the law of the Parliament.

He also created administrative courts: lower courts, appeal courts, Supreme Court – the
judges were administrators appointed by the govt and not normal judges; any dispute of a
private individual with any govt servant wrt any govt scheme, it would go to the
administrative court, which would decide on this matter. The law applied would be the one
developed by the administrative Supreme Court on a case-to-case basis not the Parliament
made law.

The problem was judges were govt people appointed by the govt to hear the issues against the
govt. Thus, they thought there would not be justice. Hence, common law system doesn’t
believe this to be administrative law.

In common law, it is administered by the same courts for both kinds of disputes i.e. there is
equality before law, and under the same Parliament’s laws.

However, it can be seen that in France they get better justice than other common law
countries. Although the system matters, the people working in the system is what makes the
difference. Hence, the system in India although better, it does not deliver on the same level as
France due to the people managing the system.

What does Administrative law try to achieve in a country?

1. Check the abuse of power by administrative authorities and keep them within legal
limits
2. Tries to ensure the impartial determination of disputes by the administrative
authorities, where they are a party to the dispute alongside private individuals;
majority of the disputes today are decided by administrative authorities, with
objectivity and fairness. Eg: University – party and an adjudicator to disputes.
3. To protect the people from unauthorised encroachment of their rights and interests by
the administrative authorities, when in conflict with these authorities.
4. To make the administrative authorities responsible and accountable.

Admin law as a separate branch of discipline is very old in civil law countries – roughly 1.5
centuries old. But in common law countries admin law was started and recognised only in the
20th century. This is because it is a by-product of an intensive form of govt such as a welfare
state, which only began in the 20th century in common law countries. This is due to the fact
that the fundamental use of admin law is to check and prevent misuse of power by the
authorities and provide remedies to the people in case of such misuse.

Admin law begins where constitutional law ends.

Many people became apprehensive of the development of welfare state, post getting rid of the
monarch as they thought their liberties and rights would be in jeopardy, under the “new
monarch”. Hence, they used certain consensual objections as to welfare state. In UK and
other European countries, it was argued to be against the rule of law, while in the US it was
the separation of powers.

Previously all laws that governed us was from the chambers of the Legislators. Now, it comes
from the administrators in the form of rules and regulations.

Definition of admin law

Instead of defining it, writers describe it due to its complex nature; it deals with
administration and tries to control the administration and protect the people against the
misuse of power by the admin. On the continent, the aspect of admin law is different from
what we understand in the common law world.

American professors define it differently from the British ones; as there is no written
constitution in Britain there is no real difference between the admin law and constitutional
law.
British

JF Port in 1929 wrote the first book in the UK – “Admin law is made up of all legal rules,
either formally expressed by the statute or implied in prerogative, which have as their
ultimate object, the fulfilment of public law.” It also applies to the law created by the inherent
power of the Crown i.e. implied in prerogative. The ultimate goal is to regulate the
relationship of the individual with the State.

Sir Iver Jenning – “Admin law relates to administration. It determines the organisation, the
power and duties of administrative authorities.”

Prof. Wade – “Admin law is the law relating to the control of governmental powers.” He
emphasizes on the fact that the law relates to governmental powers which Jenning doesn’t.

Griffith & Street – “Admin law deals with 3 aspects of administration: (1) what sort of power
the administration exercises (2) limits of those powers and (3) what are the ways to keep the
administration within limits.”

American

KC Davis – “Admin law concerns the powers and procedures of the administrative
authorities including especially the law governing judicial review of administrative action.”

Description of admin law: IP Massey

Admin law is a branch of public law which deals with the structures, powers and functions of
various organs of the administration and prescribes principles and rules by which an
administrative action is reached and thereafter controlled with a view of reconciling power
with liberty.

1. Admin law is not law in the lawyer’s sense of the term, but it is a law in the realist
sense of the term. It includes (1) part of the statutory law passed by the legislature, (2)
the rules and regulations framed by administrative authorities [delegated legislation],
 (3) judge-made law [bulk of it is this law is principles so derived], (4) higher law i.e.
the principles of natural justice, which tries to bring an element of fairness,
reasonableness and justice (5) although generally not considered law, govt policy
resolutions, administrative instructions, administrative memoranda etc. are included in
law under admin law (6) and customs, long-standing practices and traditions of admin
authorities Eg: university long-standing practice says that they call 5 people for a
post; if they don’t do that once for interviews then it can be challenged and the
university shall have to explain its actions.
2. Admin law is a branch of public law. It is said to be the common law of the
constitution i.e. where the constitution ends, admin law begins. It doesn’t belong to
the branch of private law as it deals with the relation of the state with individuals.
3. Structure, power and functions – how is an authority constituted? What is its powers
and functions? This is stressed upon to understand the nature of administrative action
although this largely falls under public administration.
4. Various organs of administration – those admin authorities (1) which are created by
law Eg: university (2) which are not created by law but are the instrumentalities and
agencies of the state (3) all non-state actors which are exercising public functions and
where the state is somehow involved – BCCI case.
5. To prescribe principles and rules – to control misuse of power by the admin
authorities. Eg: the doctrine of fair hearing, principle of proportionality, doctrine of
post decision hearing etc.
6. Deal with admin action of the following types (1) admin rule making action [quasi-
legislative action/delegated legislation] (2) admin adjudicatory action [quasi-judicial
action] and (3) admin action. How is this admin action reached? Through fair
procedure. Since there is no code in India, it is through the principles of natural
justice.
7. Control of admin action by various means (1) formal controls Eg: legislative control,
judicial review, higher admin authorities [University v. Chancellor], statutory control.
[HRC, Competition Commission, Consumer Board, Prevention of Corrpution Act] (2)
informal controls Eg: mass media, civil society, unions.
8. The main purpose is to maintain a balance between the powers of the administration
and the rights of the individuals; reconcile the powers of the admin which is all
powerful w the rights of the humble entity of an individual.
Admin law is chemotherapy for cancerous administration; the administration suffers from the
cancer of misuse of power under various influences such as corruption, for which this law
acts as chemotherapy.

Admin law deals with the pathology [manner in/purposes for which it is exercised] of power
in a society and relates with the control of such power. There are serious problems with the
pathology of power such as:

1. Arrogance of those exercising power

2. Chaotic exercise of power
3. Corruption
4. Factionalism [in India] – basis of caste, creed, religion etc.
5. Low performance
6. by the public institutions

Thus, admin law relates to the control of these pathologies through the mechanism of course
Eg: judicial review, admin action etc.

If the powers of the state can be divided into 3 – legislative, executive/admin, judicial – then
admin law deals with the admin branch of the govt. It also deals with the Parliament and
Judiciary. When the Parliament exercises admin powers, it deals with the Parliament. Eg:
speaker disqualifying members. When the Judiciary exercises admin power, it deals with the
Judiciary. So any organ can exercise admin powers.

The difference between executive and admin powers is: Eg: how a person is elected to
Parliament, selected to be a minister or appointed to be a minister is constitutional law – but
when such minister employs law which affects the people, it is admin law.

Professor Schwartz says admin law is an equalizer between powerful admin and
disempowered citizens. Admin law thus maintains a balance.

Admin law is to be understood as a prime instrumentality to monitor and arrest the abuse of
power by the administration and to infuse responsibility and fairness in it. It is a mechanism.
Thus, no matter how a country develops economically but if there is no strong and efficient
system of admin law, then the whole society would collapse under its own weight [like a
black hole lol]. So a society may have high GDP, but its happiness index would be low.
Admin law is a practical application of rule of law i.e. everything done by the administration,
must be done according to the principles of law.

Admin law is to be understood as a prime instrumentality for enforcing responsiveness in the

administration and to enforce accountability. It is not an end, but a means to an end of the
welfare of the people.

Admin law attempts to regulate administrative space, national or international, in order to

enforce fairness and accountability in the best interest of the society.
Nature of admin law
1. Admin law is not a secure/fixed science. Its main nature is oscillation and
experimentation i.e. it is based on context. It depends on the facts and circumstances,
and then checks the validity of the admin action. Eg: law is that you cannot write the
exam if you are more than 30 mins late – 2 students are late and one says he overslept
while the other said he comes from a nearby village via bus and his bus was late and
no other conveyance was available – denying entry to both of them will not be just –
it will only be just for the first boy.
2. It is not a part of the philosophy of law but the sociology of law. The philosophy of
law considers law as a metaphysical entity and analyses the whole cosmos of law to
find out certain underlying principles which may be universal. But the sociology of
law emphasizes on justice and solutions to the people’s problems in their daily lives.
Admin law deals with the sociology of law.
3. Admin law is not based on logic, but experience. We do not decide in admin law
anything on syllogistic reasoning. Eg: the constitution is based on separation of
powers – premise 1 legislative powers cannot be delegated – premise 2 some
legislative powers are delegated – thus, those are not legislative powers. This is not
used in admin law. The principles change with our experience.
4. Admin law is people centric, because the purpose is that justice must be done to
persons.
5. Admin law cannot be divorced from the socio-economic realities of life.
2 approaches to Admin law:
1. Circumscriptive approach/Red-light approach: when admin law started rising after
intensive states started forming in the 20th century, there was a group of people saying
 give admin officers as little power as possible to prevent them from interfering in the
lives of the people and encroach and circumscribe their liberties.
2. Prescriptive approach/Green-light approach: when states [especially developing
countries] became welfare states, and people couldn’t be empowered without the aid
of the state, people started arguing that give them enough powers to employ
programmes, policies etc., but keep the power under control i.e. social justice goals
cannot be reached otherwise.

Administrative problem: In the Supreme Court, who has the power to create benches and
allocate cases to the benches? A press conference was held on this matter. The Constitution is
silent on this matter – then what do we rely on? We fall back on constitutional conventions
i.e. practices of regulatory societies. The Chief Justice has the power to create benches and
allocate cases, as per the British Parliamentary system. But, the administrative problem of
following this method, does not mean that this is the Chief Justice’s personal power and
therefore, cannot be exercised in a manner in which people exercise personal powers. It is a
power of the people which is entrusted in the functionary/trustee. He thus must exercise the
power for the interest of the beneficiaries i.e. the people. Thus, the CJ must be exercise his
powers based on certain principles of reasonablenss, fairness and justice; not following these
principles is an administrative problem i.e. CJ cannot give cases to a bench as he expects a
particular outcome from it.
The scope of admin law:
1. What sort of powers administration exercises – administration exercises 4 major kinds
of powers (1) quasi-legislative power (2) quasi-judicial power Eg: tribunals (3)
administrative power i.e. what remains after taking away the first 2 types (4)
ministerial power i.e. the administrative authority has no discretion; administration
includes (1) constitutional authorities Eg: ministers, Finance Commission, Inter-State
Water Dispute Commission (2) administrative institutions created by law i.e. quasi-
administrative authorities (3) administrative institutions which are agencies and
instrumentalities of the State Eg: govt. companies (4) private institutions which are
performing a public function and where somehow the State is involved Eg: BCCI
2. What are the limits of the powers of these admin authorities – the limits are set by (1)
the constitution (2) the law under which the admin authority is constituted (3) limits
laid down under the general law of the land (4) implied limitations imposed by the
higher law i.e. principles of natural justice such as the rule of law
3. What are the strategies to keep administration within the limits – to give people relief
against misuse of power: (1) through constitutional strategies Eg: Courts via writ
jurisdiction (2) non-constiutional strategies Eg: ordinary civil courts may give
injunction, damages, specific performance etc. (3) special courts Eg: labour courts,
income tax courts, SC/ST courts etc. (4) statutory strategies Eg: tribunals, Child
Commission, SC/ST Commission, ombudsman i.e. friend of the people such as
Lokpal and Lok Ayukta [it first developed in Sweden to give them relief against
admin action or inaction wherein they appointed an officer who would try to put the
grievances to rest – it became so popular that it has been imported to most democratic
systems of the world; it is not as successful in India because it depends on who is
manning the system more than the system itself] etc. (5) non-formal strategies with no
legal basis but they play a very important role in controlling the administration – often
play a preventive role Eg: unions and associations such as lawyers’ associations, mass
media by creating public opinion which acts as a restriction on the admin, civil
societies like NGOs, the right to information/know, lobbying institutions [not
developed in India, as here it would create more problems than it would solve –
corporations which lobby for you and create public opinion for a certain fee and then
they try to prevail over the admin – very developed in America]
4. What procedure do admin authorities follow while taking any action – unfortunately
in India there is no statutory procedure for the administration to follow; in America,
they have an Administrative Procedure Act 1946; in UK they have Tribunals and
Inquiries Act, 1958 (1992); these lay down a procedure; thus in India, they follow (1)
the procedure laid down under the act under which the admin authority is created Eg:
tribunals (2) admin authority may be left free to develop its own procedure Eg: HRC
has the power to decide its own procedure and (3) admin authority must follow the
minimum procedure laid down by the principles of natural justice.
If the legislature can lay down the admin procedure, can they lay down any
procedure? No, it must be due procedure i.e. procedure of fairness, reasonableness
and justness.
5. What are the remedies available – judicial review of administrative action either
before the Supreme Court/High Court with a writ petition or before a civil court
which will give you compensation, declaration, injunction or quash the admin action
on the grounds of (1) illegality (2) irrationality (3) procedural impropriety and (4)
proportionality.
Reasons for the growth of admin process

1. Admin process is a by-product of an intensive form of govt i.e. welfare state. Thus, as
most states are now welfare states taking care of their citizens from cradle to grave,
the admin process has grown. If there is no interference by the State in the private
affairs of the people, then no admin process is not required. When this happened it
was known as the Golden Victorian Era in the UK. Basic characteristics of this period
were (1) free enterprise (2) freedom of contract (3) self-help (4) individualism. At this
stage, people were very happy. However, in 16th Century UK, the Industrial
Revolution started and cities came into existance. People from villages migrated to
cities for employment. This led to a lot of problems such as the exploitation of the
labour by the capitalist via no fixed hours, no fixed wage etc. i.e. labour became
miserable. At this point, it was decided that state must interfere but in a limited
amount. This was referred to as Paternalism in Govt – in this stage, the state was
merely expected to lay down rules through NEGATIVE ASSISTANCE to the people for
the industries to resist exploitation. Thereafter, in the 20th Century, societies became
more complex with industrialisation at its peak, more competitive and thus people
starting saying they were unsatisfied with the rule of the state as the father of a family,
and they wanted a mother of the family, who takes care of its citizens like children.
This led to the era of Maternalism in govt. From there, the concept of welfare state
and intensive govt. started. Thus, law and admin process became necessary. In the
beginning the govt. tried to do everything through its own officers leading to a great
expansion of civil servants. Later, they realised it was a Herculean task and then they
started taking help of corporations, tribunals, commissions, boards etc. to undertake
some of the activities. Today, it is an age of contractualised nation of govt. i.e. neither
the govt. takes care of the issues through its own institutions, but it has started
contracting out of the state. This is the era of Welfare state.
During the British rule in India, state activities were highly limited and they were
more concerned with trade and law and order. But when India got independence,
under the Constitution, the idea of a welfare state became an imperative. Thus, the
admin process developed after independence.
2. Paradigm shift in the demand of the people that the govt should not only define their
rights but also solve the problems of the people, and also create conditions in which
the rights of the people can be MEANINGFULLY REALISED. There was a time in the
 beginning when the people merely wanted their rights to be represented and nothing
more. Thereafter, they realised that merely naming the rights did not help the case.
Thus there was a paradigm shift in their demands and they started demanding that the
govt must create conditions in society to realise the enumerated rights. This could
only be realised when there was a rise in admin process.
3. All problems are solvable and must be solved by the State. Again an attitudinal
change from the belief that personal problems exist in which state shouldn’t interfere
Eg: marriage. This led to a growth in admin process.
4. To control the forces which the science and technology unleashed. Today, in the age
of science and technology, which are boons for the society, they can become a bane
for the society if not properly regulated Eg: atomic energy, cyber privacy etc. The
regulation of these forces requires admin process.
5. Inadequacy of the legislature to give us the quantity and quality of law which is
required for modern governance. Earlier, societies of agriculture didn’t require too
many laws so the legislature managed to provide for all the laws. However, the
societies now have changed which require more quantity and quality of law for
modern governance. Law is now required for every sector and since legislatures
cannot give us that, admin authorities must be created with admin process. Now the
law has also become technical as compared to before, which cannot be completely
understood by Parliamentarians. Thus, they pass skeleton legislations which the
admin authorities add on to and regulated the societies. Law comes from the barrels of
the secretariat man which is inadequate in present day society. This led to the creation
of admin adjudicatory bodies also as normal courts could not handle the quantity or
quality of adjudiction and judgment because today’s disputes are highly technical and
our generalist judges are not able to understand them [surgery has been given to a
barber].
6. Socialisation of law – The purpose of law earlier was limited to maintain law and
order and settle disputes between man and state. However, now law is an instrument
of social engineering i.e. all conflicts in the society must be solved by law whether
between 2 individuals or individuals and the state. Thus, the litigation has increased
so much leading to Courts not being able to handle the burden. This lead to growth of
admin authorities and process.
7. To control the forces which the neo-economic liberalisation has unleashed – 21st
century is the age of economic liberalisation, privatisation and globalisation and thus,
 this development has brought new national and global problems into the scene such as
trade issues, capitalism, corporates etc. The corporates i.e. artificial persons with
limited liability with huge capital are difficult to settle disputes with as they work on 3
principles [3 E’s]: (1) efficiency i.e. competitiveness is their religion (2) economy i.e.
profits (3) effectivity i.e. they want a dominant role in the market. This shows the
absence of human components. Therefore, in order to make them submissive to the
people and get them to follow ethics and equity wherein they are beneficial to the
society, in order to get ease, it can be done only through admin process.

In India, the growth of admin law is a constitutional imperative as the directive principles
require admin law and process to be implemented.
Difference between constitutitonal law and admin law
Since the UK didn’t have a written constitution, early British writers were unable to
differentiate between the 2. They also didn’t know whether the inherent, prerogative power of
the Crown was part of admin law or con law. Further, they also believed that only France had
admin law as civil law had a different notion of admin law which didn’t exist in the UK.

Keith [British writer] says that it is logically impossible to differentiate between the 2.
Hewart says, that admin law is a constitutional garbage, because they didn’t know what is
constitutional law and admin law, in the sense in which we understand it. Thus, any
difference between the two was only of convenience and addition, not logic and principle,
as both interlock closely and overlap considerably. Both are mutually exclusive and not
selectively exclusive i.e. when you combine them, they form a whole.

They also said it is not necessary to differentiate as they both have common concerns of
public good and limited govt. and both have the identical mandate that no public power
should be misused i.e. it must be exercised within the limits laid down by law. It has a
common trajectory i.e. cover the same space Eg: both deal with the executive, legislature and
judiciary but different aspects. Both have common horizons and believe in common values
such as democracy, secularism, justice, socialism, liberty, equality, fraternity, dignity of the
individual etc.

Now, in almost every country with a welfare state however, admin law is studied as a
separate subject. Thus, there are differences:
1. Constitution is anti-majoritarian, while admin law is anti-authoritarian.
Majoritarianism is the idea that whatever the majority decides shall be deemed correct
and implemented. But Constitutional Democracies are not majoritarian, but majority
subject to the constitutional principles. Eg: if the majority in India decided that
minorities shall not have voting powers, it will not be deemed correct or implemented.
Majority opinion will only be accepted if it is in consonance with the Constitutional
principles. Admin law is anti-authoritarian as admin powers given must not be
exercised arbitrarily in any manner the officials wish to but in a fair, just and
reasonable manner.
2. Constitution is a value-laden document, whereas admin law is a value-neutral
document. The constitution is based on certain political care, but admin law is not.
Admin law is only based on how to govern. Thus, the constitution lays down who
governs while admin law deals with how to govern.
3. Constitution deals with govt at rest, while admin law deals with govt in motion. How
the elections take place, how the Parliament is constituted, how the PM is appointed is
addressed by the Constitution. However, when a minister takes over a ministry, how
he uses his powers is dealt with by admin law.
4. Constitution is a source of public policy while admin law is a policy delivery
mechanism. Eg: environment is to be protected is a policy matter, as per which the
Parliament creates an Act; now how this is implemented is given by admin law.
5. Constitution may be a product of various historical events. Thus, a constitution can be
produced through many situations such as (1) it may be a product of a revolution Eg:
French Revolution (2) it may be a product of assignment i.e. an authority gives us a
constitution Eg: from 1947-1950, India followed the Govt. of India Act 1935 as the
Constitution (3) it may be a product of gradualism Eg: British Constitution grows as
the need arises (4) it may be the product of an agreement Eg: American Constitution
was an agreement between 13 states in 1787 and (5) it may be a product of consensus
Eg: Indian Constitution is a product of consensus in Massey’s opinion. But, admin
law is a product of evolution as the society grows, socially, economically and
politically, and as the concept of welfare state spreads. This is because largely admin
law is a product of judicial review so on a case-to-case basis the whole ediface of
admin law grows.
 6. Constitution is a grund norm and admin law is a norm that flows from the grund norm
[KELSEN’S PURE THEORY OF LAW] i.e. all norms derive their validity from the grund
norm.
7. Constitution is descriptive while admin law is prescriptive. The constitution contains
various open-textured expressions that are descriptive Eg: democracy, secularism,
socialism, justice, liberty, equality, dignity, fraternity. Admin law is not open-textured
and it only says to act within your power and exercise the power fairly, reasonably
and justly.
8. Constitution is the refelction of the rights of the people and admin law is the
implementation and protection of those rights.
9. Constitution deals with constitutionality and admin law deals with legality.
Constitution deals with whether an action of the state is within the purview of the
constitution but whether it was within the purview of law is a matter of admin law.

Professors Benjafield and Whitmore gave the final answer as to whether there is any
difference or not. They say, that the 2 are different but they overlap Eg: venn diagram of
circles which overlap. Thus, they are not totally exclusive of each other, and therefore, a
student of constitutional law must study some admin law and vice versa.

Then, what is the OVERLAP?

1. Judicial control of admin actions Eg: admin law students will study A. 136, 141, 311,
32, 226 etc.
2. Rights of the people Eg: admin law students must study Part III Fundamental Rights
which impose limitations on the govt and admin to not be unreasonable in their
exercise of power.
3. Constitutional limits on the delegation of powers to admin authorities Eg: admin law
students must study that even though the legislature has the power to make law, can
they delegate it and to what limit? & courts wrt their judicial power, can they delegate
it and to what extent?
4. Functioning of admin authorities as given in the constitution Eg: finance commission
under A. 280; inter-state council under A. 263; inter-state water dispute authority
under A. 202; public service commission under A. 315; election commission under A.
329 etc.
Conceptual objections to the growth of admin process & law
The UK had a Victorian Era of Liberty and Freedom or Laissez Faire i.e. no interference by
the State. The Govt’s only job was to maintain law and order and prevent outside
interference.

In the 16th Century, Industrialisation brought in problems of exploitation of labour, trade and
business, employment, housing, medical assistance, crime etc. This led to the growth of
admin process to tackle these problems, through govt schemes and programmes. Thus,
interference by govt. officers in the lives of the people arose in the form of arrest and seizure,
investigation etc.

This led to a lot of opposition to the growth of the admin process. Lord Hewart wrote a book
called “New Despotism”, meaning that with great difficulty we were able to do away with
monarchs, now with the new govt officials with these wide powers had become new
monarchs and invading our liberty and freedom and thus it must be checked. This caused a
general sentiment AGAINST the law and process of administration post Industrialisation.

People generally used 2 weapons i.e. conceptual objections to check the growth of admin law
(1) in the UK, rule of law was used; people started claiming the growth of admin process
violates the rule of law (2) in the US, separation of powers was used; in this admin process,
all govtal powers were combined into the same officials which violated the separation of
powers principle.
Rule of law
The concept of rule of law generally has been derived from natural law. It is an ethical code
for the administration. It is said to be the eternal principle of constitutionalism which is based
on the concept of limited govt. Basically, the whole concept has been derived from the
French expression “La principe de legalite” i.e. the principle of legality. This means that law
must be based on certain principles of law.

We developed from the rule of man, wherein there was no law laid down in advance. The
case would be decided as the case came before him. Thus, law was “dog law” i.e. you punish
the dog for sitting somewhere but dog didn’t know where he was allowed to sit in advance.

As society developed, we turned to rule by law i.e. rule according to law. They started laying
down right and wrong in advance, and then if someone did a wrong, they could be punished.
This however, caused a lot of arbitrary and irrational laws to be laid down.
Thus, society developed to rule of law i.e. society should not be governed by any law except
the law based on the fundamental legal principles of fairness, reasonableness and justness.
Only such law can be a valid law. Independent Courts decide whether laws are based on the
principles or not.

We started with absolute monarchies/rulers, who governed society. However, that individual
always abused the power as he had sole discretion. This led to the change from monarchy to
democracy due to the misuse of power and a need to check the power. Thus, an elected
majority would rule as majority is never wrong. There would no longer be a rule of families.

Then they realised, even majority may go wrong and ignore the rights and interests of the
minorities, and the majorities may be permanent. This could lead to tyranny of a majority
instead of one. This led to constitutional democracy i.e. majority rule would be subject to the
fundamental principles which must be laid down in the Constitution. Any law that violates
these principles is unconstitutional. This was done to protect the minority and prevent a
tyranny of the majority.

Thus, right from the dawn of civilisation, there was a struggle between the people and the
govt., which became the eternal quest of man to balance the power of the govt and the liberty
of the people. It is still continue and always shall. This is the history of civilisation. Thus, the
rule of law is not a new concept, but a very ancient concept i.e. people must be governed by
laws based on fundamental principles.

In Western Civilisations, they trace the rule of law to the Magna Carta 1215. The King was
sovereign, no law was written down, and whatever the King decided was law. Thus, people
were being killed, destroyed, exiled and jailed by the arbitrary actions of the Crown. This led
to the people rising against the Crown and forcing the King to enter into a contract that was
the Magna Carta. This was based on principles stating that people cannot be punished unless
they have violated the law of the land as per a decision of the Court. This caused the
establishment of principles.

In 1608, Edward Coke was the Chancellor or person second to the King, appointed by the
King and the keeper of the King’s conscience. He was also the primary judge. He was
hearing certain cases, in which the King’s interest was directly involved. The King
approached him and said that he shouldn’t decide these cases but transfer them to the King
who would decide them. Edward Coke said no, as the King had a direct interest and could not
be a judge in his own cause. This angered the King who then asked if the King is under law
and man. To this Coke replied saying the King is not under man, but under law based on
certain principles. This led to the evolution of the concept of rule of law.

In Eastern jurisdictions, the concept traces back to the Vedas and Upanishads. In the Vedas,
rule of law is called dharma or the righteous path, which applies even to the King. If the
King doesn’t act as per his dharma, he will be punished. Upanishads laid down the details of
dharma (1) law is the king of kings i.e. king is not above law based on principles (2) law
based on principles is as rigid and powerful as the King i.e. there is nothing higher than such
law (3) the real law is because of the power of which the weak can prevail over the strong.

The basic purpose of this ancient doctrine is to control the arbitrary exercise of powers by the
rulers and protect the people. Thus, the concept has been drawn from natural law -> natural
rights -> rule of law. There may be some dispute about the quantification of this dispute i.e.
what it entails.

For this reason, the person who first gave its contents is said to be PROFESSOR A. V. DICEY,
is very important. In 1885, he was invited to Oxford University, where he gave the cardinal
principles on which the constitutions are based (1) supremacy of British Parliament (2) rule
of law. This is because, in Britain, the constitution is based on gradualism and democracy i.e.
people will be governed by their own reps so there will be no misuse of power as majority
can never go wrong. Thus, parliament is supreme and the country is governed by the laws of
the parliament.

This however, had also a problem of the majority developing vested interests after becoming
permanent in a society. Then it was thought that even majoritarianism must be under a
control of rule of law. The power of the majority must be under rule of law based on the
fundamental principles, in order to be making valid laws. This was to condition the
majoritarianism of a democracy. Thus, it was a theoretical concept. Later, when it has been
written by various countries, it takes the form of the constitution.
A.V. Dicey’s Rule of Law
1. Preeminence of law i.e. Every power of an admin authority must come from a law, which
limits it i.e. whenever an admin authority takes an action against a person, they must
show law. No one is above the law, and no law is unlimited or exclusive. All law must
come from the organs of the state. Discretion is devoid of law, and thus admin actions
 should have an absence of wide discretion. No power in society is a prerogative one, it all
comes from law.
i. Everybody must be subjected to law i.e. no one is above the law. nobody should
have special privilege and even the Govt. must be under law and not the law under
the Govt. The law is above everything else. Eg: in France there is no rule of law.
ii. Every law must come from the ordinary legislative organs of State. Dicey was
against law passed by admin authorities and judicial law. If there is a dispute
between people, special law is applied by the admin authority and not the
legislature’s law, this would violate the rule of law.
iii. Absence of discretionary powers in the hands of admin authority. They should act
with laid down or predetermined law and should not be given a power to interfere
with the rights of the people without a predetermined law.
iv. Law must be based on certain fundamental principles. Not every law is rule of law
but can be made so by the following:
a. Generality – the law must be general and not for any particular person.
Otherwise the chances of arbitrariness arise. Eg: US cannot pass special
laws, due to arbitrariness; people must be classified if at all with the
condition that people of the same category must be treated alike. Eg:
India’s A. 14 says classification is possible based on intelligible
differentia; it can be done for one person also based on the rationale.
b. Law must be predictable i.e. it should not be vague. There should be a
clear idea of what is legal and what is not.
c. Prospectivity i.e. the law as far as possible must be for retrospective
operation, provided there is fairness and reasonableness. Criminal laws is
prospective but often civil law can be retrospective also. Eg: A. 20 talks
about ex-post fact legislations.
d. Publication i.e. law should be easily available to the people. Ignorance of
law is no excuse.
e. Fundamental values of higher law (1) fair not arbitrary (2) reasonable (3)
based on the principles of justice. Courts must decide if these grounds are
met or not. Supreme Court has held arbitrary laws as violative of A. 14.
2. Preeminence of equality – law must provide equal access to justice in the absence of
which there is no rule of law. Law must provide for accountability. Everyone must be
 subjected to the same law and ordinary system of courts. If there is a special provision for
someone, there is no rule of law. Eg: France.
3. Pre-eminence of accountability i.e. every admin authority must work within the limits laid
down by the law. If any authority exercises powers beyond its limits or in a malafide
manner or oppressive manner, then such person should be held accountable to whoever is
affected by such actions. Accountability must be fixed by the ordinary courts of the land
and the person must also be tried by such courts i.e. independent and impartial body to
enforce accountability. Thus, in France, since the govt. officials are not accountable
through ordinary courts, there is no rule of law.
4. Pre-eminence of common law rights, as without this there is rule by law. They flow from
the natural law. Earlier, it was believed that God has given us these rights and now it is
that you have not been given the rights, but it is inherent in you as you are human i.e.
natural, inalienable rights that cannot be waived. This is because they are based on the
nature of man to know what is right and wrong. Thus, Part III of the Indian Constituion
does not give us our rights, but it is merely a reflector. Shivakant Shukla v. ADM
Jabalpur – during emergency, the President issued a notification suspending A. 21. A
person was arrested and he claimed that he had not committed any crime and was
unreasonably detained, thus the Court should give him habeas corpus. The Court said no,
as A. 21 has been suspended, you have no right to personal liberty and hence habeas
corpus cannot be issues. However, in the minority judgment, Justice Khanna said as the
right was a natural right to personal liberty, he should be given habeas corpus as the right
is inherent and not given by the Constitution. Recently, in Puttuswamy’s case, the above
case has been overruled. In England, there is no written constitution. So the source there
is not laws passed by the parliament. It is inherent, while the Courts have the
responsibility of protecting the rights of the people. In France, they have admin courts,
which applies law on a case-to-case basis and not the law laid down. This is violative of
the rule of law.
Purpose of Rule of Law
1. It limits the power of the admin authorities and controls the arbitrary and capricious
and oppressive exercise of public power.
2. It tries to fortify and protect human rights of the people.
3. It tries to foreclose many majoritarian options.
In India, rule of law is the basic structure of the constitution, thus any law in violation of the
rule of law is not a law even if it is passed by a majority.

Buchanan was awarded the Nobel Prize for Economics in 1869. He also tried to define the
rule of law. There is an agreement of the philosophy of this, but not the content. So he said
there are principles, which existing makes a society a rule of law society. It is not a
destination, but it is a process. It is also called continuous walking without reached. But
there is no final conclusion if a society is a rule of law society. The principles are:

1. Generality i.e. law must be the same for all the persons who are equally circumstanced. It
should not be for a particular group or class unless it is done fairly and justly, based on
the fact that the group is separate. Specific laws are not as per the rule of law. It doesn’t
mean that law must be the same for everyone and classification is possible on the basis of
intelligible differentia i.e. law must be the same for all those who are equally
circumstanced because (1) generality is more acceptable by the people (2) generality
forecloses majoritarian options (3) generality is less discriminative and oppressive (4)
generality is more inclusive i.e. it promotes equality in society (5) generality protects the
human rights of the people more than the legislation and (6) generality is more conducive
to freedom of contract.
2. Law must be fair, reasonable and just. It must be based on these international fundamental
values. Whether or not this is met, must be decided by the Courts. The answer of whether
a particular law is fair, may be different in different situations. But the standard is of an
ordinary reasonable man i.e. if the law has no logic, then it would not meet the standard.
Eg: If there is an airhostess, her services will be terminated if she marries, but a male
steward will not be fired for marrying. This is not reasonable, as it is unfair and
outrageous and in defiance of logic. It must be rational and not arbitrary i.e. it must
follow the rule of proportionality to create a balance between the means and the end of
law. Eg: if law allows you to kill flies with sledgehammers, it violates the rule of
proportionality as there is no correlation between the means and end. In a case, the Govt
of Maharashtra passed a law stating that a person who has been suspended, he would be
given Re. 1 as sustainance allowance. This is not reasonable.
3. Law must be prospective i.e. it must be made for future application. However, criminal
law cannot be made with retrospective effect, but civil law can be made with
retrospective effect. The people making such laws (1) must have the power to make law
with retrospective effect and (2) there must be a definite socio-economic purpose in
 giving the law a retrospective effect. In these circumstances, the Court may allow giving
civil laws a retrospective effect. Law must be publicly published which cannot be done in
the case of retrospective laws.
4. Law must be impartially and equally applied (1) the procedure must be fair, reasonable
and just (2) law must be equally applied to all for whom that particular law is made –
that’s why the French system of admin courts, is not good and violates the rule of law as
it is not impartially applied.
UN’s definition of the rule of law
Rule of law is a principle of governance, in which a state and all entities, public and private,
are accountable to law, and the law is publicly promulgated, equally enforced and
independently adjudicated and is consistent with the international human right norms and
standards.
Indian Constitution and Rule of Law
1. Rule of law is the basic feature and a part of the basic structure of the Indian Constitution
as decided in the Keshavananda Bharati case. This case is important as it decided the
democracy of India.
2. The law must also be based on ideals of the Preamble of the Constitution i.e. justice,
equality and fraternity.
3. Independence of judiciary i.e. the Courts must be independent.
4. The power of judicial review: in the Keshavananda Bharati case it was held if a
provision violates the basic feature of the Constitution, then via judicial review it can be
removed.
5. Fundamental rights act as a limitation on the power of the legislature to make laws.
6. Due process clause: it is included in A. 21 by judicial interpretation in the case of
Maneka Gandhi v. UoI. The procedure must be reasonable, fair and just in the taking
away someone’s life and personal liberty, as per the Courts. In A. K. Gopalan v. UoI, the
Court held that procedure established by law means any procedure laid down by the
legislature in India. But this was overruled, as it is not just about the procedure, but also
about the substantive due process of law i.e. the fairness of the law.
7. No property can be taken away without the authority of law, as per A. 300(a).
8. Doctrines of King Can Do No Wrong, King Cannot Be Tried and the King is not bound
by his own Law, do not apply in India. They were laid down as a doctrine in the UK. Any
 law passed by the legislature applies to the people and the govt equally, unless the govt is
exempted expressly, or implied by necessity.
9. Absence of wide discretionary powers – if admin authority is given wide discretionary
powers, it is not believed to be Constitutional.
10. A. 14 prohibits arbitrary state action.

Rule of law is not merely a negative concept which is just prohibiting things, but it is also a
positive concept. An international council of jurists met in New Delhi in 1959, and gave the
positive contents of the rule of law, and said that it means creation of such socio-economic
cultural and political conditions in the society by state, under which every person,
irrespective of everything can develop his personality to fullest.
The Doctrine of Separation of Powers
Rule of law was the weapon used by people in England to check the growth of admin
process. In America, the argument was that admin process should not be allowed to grow as it
violates the doctrine of separation of powers. The American Constitution is the only
constitution based fundamentally on this doctrine.

Earlier in the UK, there was no freedom of religion, and if anyone tried to worship any other
God, he was given a death sentence. People didn’t like this and wanted the freedom to
worship whichever God in whichever way. Thus, they left England and went to America
which was isolated other than Red Indians. These people settled in Virginia where the first
settlement was formed. Thus, the purpose was freedom. Thereafter, people started flowing in
from Europe leading to 13 different colonies being established. They agreed to draft a
constitution for themselves, and the only question in their mind was how to protect their lives
and liberties against the powers of the state. They came up with the doctrine of separation of
powers as the solution.

This doctrine is associated with Locke, Bodin, Austin etc. but the person who gave the
doctrine shape was the French jurist Montesquie. He got his content from the situation in
France v. England. He observed that in England originally there was a monarchy with all the
powers of the state in the hands of the monarch, who exercised his power in an absolute
manner. Therefore, in England there was a movement against this, leading to the revolution
in 1688. Thereafter, an agreement was entered by the monarch and the parliament into saying
that all the law-making and taxing power will be exercised by parliament, executive power by
the King and adjudicatory power by the Courts. This secured the life, liberty and dignity of
the people. At this time, France had all its powers concentrated in the hands of one person.
The power of the state thus must be dispersed. [England however didn’t stick to the
classification and the Parliament became supreme]

In 1748, he wrote a book called “The Spirit of the Laws” in which he wrote that there will be
an end of everything if all the powers of the state are combined into one person or body. If
you combine all the powers of the state in one body, there will be an end to every right and
liberty. This is the doctrine of separation of powers.

Right from the time man decided to live in a civil society, with a govt, there was always a
quest to control the powers of the body of the govt they created so that they do not violate
their rights to life, liberty and dignity i.e. how to protect themselves from the arbitrariness of
the state. For this, the concept of God and natural law was created. It led to the creation of
natural law rights. Thus, the concept of rule of law was also developed and in order to protect
this concept the doctrine of separation of powers was developed, alongside democracy. This
led to the formation of a welfare state.

Why is this doctrine important in a constitutional democracy?

This question was answered by 2 architects of the American Constitution – Jefferson and
Madison. Madison said there is still a threat to life, liberty and dignity even in a democracy.
Accumulation of all powers in the same hands, whether one, few or many and whether
hereditary, self-appointed or elected, may justly be pronounced as the DEFINITION OF

TYRANNY i.e. it doesn’t matter if you elected the people as it could turn into an elected
dictatorship or tyranny of the majority. Jefferson said concentration of all the powers in the
same hands is precisely the DEFINITION OF DESPOTIC GOVERNMENT. It is no alleviation that
this power would be exercised by a plurality of hands and not by a single person. “173
despots would be as oppresive as one.”

Meaning of the doctrine by Montesquie:

Structural classification of organs i.e. all the 3 organs of the state must be separate. Their
functions and functionaries should be separate, and no other organ should interfere in the
functioning of this. However, now we believe in interaction as the threat arises from
unchecked powers, not from blended powers. So Montesquie’s interpretation in the classical
theory, which is hardly applied now. It says (1) the same member shouldn’t be a member of
more than one organ of a state Eg: our system would violate this, but in America this is
followed (2) one organ should not exercise the function of another (3) one organ shouldn’t
interfere with the functioning of another organ. Thus, the Supreme Court in America did not
have the power of judicial review as it would be interfering. But now it does, and it is called
the most enigmatic development of the American Constituion. In 1803, in Margerie v.
Madison, the Supreme Court usurped the power of judicial review which the constitution
never provided. In India, the constitution doesn’t recognise the doctrine in its classical sense,
but there is a division of powers. In India, separation of powers means judiciary must be
independent. Thus, the constitution is not based on strict construction of the doctrine. No
state can run on a strictly water-tight govt anymore, due to the welfare states as it is no longer
about the separation of powers but the cooperation of power via checks and balances. One
organ must be able to check the powers of the other, in order to create friction, as power can
only be checked by power. Thus, you put one power against another power, and in this
mutual check and balance system, you protect your life liberty and dignity. Secret of human
liberty lies in the separation of powers. In France, there is no security of the liberty of people
because there was monarchy at that time and English men are enjoying liberty.

The doctrine of separation of powers is difficult to define, impossible to operationalize but

unavoidable if the democratic system is to protect the rights of life, liberty and dignity of the
people.

In a Presidential form of govt., you generally have all 3 organs but in Parliamentary form, the
Parliament and Executive are essentially combined.

Over the years, this doctrine has been interpreted in 4 different ways:

1. Structural/original sense – 3 organs of the state must be separate; their functions must
also be separate; functionaries must also be separate i.e. member of Parliament
shouldn’t be a member of the Executive; no organ should interfere in the functioning
of the others; this is against the power of judicial review.
2. Classical sense – In the classical sense, this doctrine is not available anywhere, as no
modern system can function without interaction/overlap by keeping the organs in
water tight compartments. Eg: In America, the President interferes with the
functioning of the Congress by issuing executive notifications which have the force of
law. Further, if the Congress does not pass the budget, the govt. shuts down and the
President cannot function. The Congress also interferes with the judiciary as the
judges can be impeached alongside passing procedural laws, establishing special
 courts and influencing the appointment of judges. The judiciary also interferes with
the legislature and executive by the power of judicial review. Eg: The President of
India has a veto power and can thus interfere with the legislature. In the same manner,
since the President also appoints judges, as per his own sweet will and friends, he
interferes with the judiciary also. The legislature can also impeach the President and
thus interfere with his powers. The judiciary also interferes with the legislature and
executive by the power of judicial review. Therefore, the doctrine is impossible to
operationalise in the modern systems.
In Ram Jawaya Kapur v. State of Madhya Pradesh, the Court held that in India,
there is a division of power not a separation i.e. the Constitution does not recognise
the doctrine of separation of powers as ours is a parliamentary system of govt.
3. Functional sense – (1) basically 3 organs must be divided (2) there must not be total
amalgamation of functions (3) one of the organs should not usurp the total functions
of another (4) however, interaction between different organs is possible i.e. they
should not be put into water-tight compartments (5) the essential functions of one
organ of govt. cannot be interfered with by another i.e. non-essential/secondary
functions may still be interfered with. Eg: executive can undertake passing of admin
laws/orders; one can argue that this is a legislative power, but this is an ancillary
function. Eg: executive constitutes adjudicatory tribunals but these are not final as the
judiciary has the last word, so the doctrine in the functional sense is not violated. This
sense is possible to operationalise.
4. Checks and balances – As per this, separation does not mean separation but means
that one organ checks the other’s exercise of power so that they do not exceed their
limits of power conferred by the constitution. Eg: if the executive trangresses its
power, the parliament/judiciary can check the powers and vice versa. Therefore,
power must be pitched against power as only power can check power. You may
provide powers/limits in the Constitution but unless this is checked by other powers, it
is bound to be misused.
5. Sense of mutuality and co-operation – Creative co-operation envisages that welfare of
the people is the suprema lex. We are not talking about putting powers into
compartments but about cooperation to protect rights. We do not ask whose power,
we simply ask how welfare can be served and this is called creative cooperation. It is
not about discord but concord. One is not the enemy of the other, they work together.
 It is not about estrangement but engagement, not competition, but sharing is the spirit
of this doctrine. Eg: cooperative federalism.

In India, democracy is there, but soil still remains undemocratic. Has the doctrine lost
relevance in the modern system of governance?

No, the logic behind the doctrine is still valid though the application may not be valid. If one
combine all the three powers into one hand, it would lead to absolutism on the people and
violation of rights and liberties and therefore, not separation but mutual check and balance is
necessary. At the same time cooperation should not be denied. The threat to liberty arises not
from unchecked powers but amalgamated powers. Therefore, in India, Courts have held that
even if the Constitution does not expressly recognise the doctrine, it is still a basic feature of
the Constitution.

Separation of powers means independence of the judiciary, as other powers are already
merged in India.

The doctrine emerged to protect the rule of law.

John Randorf: one may cover whole constitution with limitation, it means nothing. Because
only power can check power. Logic behind this doctrine is not separation but is mutual check
and balances. Separation of power in 21st century means inter-dependence. Separation does
not mean water tight compartmentalisation of the government, but interaction. It means not
autonomy of organs, but reciprocity, they must respond to each other. Threat to liberty lies in
blending and no in connecting the power. Not amalgamation or assimilation but interaction.

In America, residuary power belongs to the state and the people and there is a weak centre.
We wanted opposite. America has against become a strong centre country. Union
Government has become strong by exercising vast powers: we have move away from
separation to co-operation. In America, they use the doctrine of separation of power to check
the process of growth of administrative power. Therefore, they argued that first growth of
administrative process should not be there, but if it is there, give them as little power as
possible. They is known as Red Light Theory. Now, they say that given them as much power
as possible but keep that power under control [Green Light Theory].
Sources of power must be different but the power that flows from those sources can flow in
one channel, there is no violation of rule of law and separation of power. Law that checks
them is the administrative law.

DroiT Administrative
i.e. Administrative law in France. Dicey was observing this and therefore, he wrote admin
law violates rule of law. In 1789, the French Revolution took place and Napolean became the
Counsel General and at that point of time, a tussel was on between the King and the ordinary
courts as the King was running the whole show of administering justice in the King’s court
i.e. Conseil Duroi which was the advisory body of the King and helped in deciding several
important cases. Thus, ordinary courts were neglected and only decided minor disputes
between individuals. Whenever they had the opportunity, they would bring in the King’s
policies and programmes, to delay them.

Post the Revolution, when Napolean took over, he wanted to bring socio-economic change
very quickly and wanted the protection of life and liberty of people. Thus, he abolished the
Counsel Duroi and in order to give quick relief to the people against the admin accesses, he
established a new system in 1799 – he laid down a system of admin law and admin courts.
The Supreme Court was known as Conseil d’Etat, which had appellate courts under it, below
which the admin courts existed. The judges were appointed by the Govt and they were Govt
servants. Conseil d’Etat was the highest admin tribunal. In 1799, it was not a court but merely
an advisory body to the ministers i.e. if any person had any grievance about an admin action,
he would file a petition to the relevant minister; if the minister found it relevant he forwarded
it to the tribunals and they sent back advice to deal with this.

Dicey said how can this give justice to the people when there is no court at all – govt
servants, advisory, final decision is based on Ministers. Thus, upto 1799 there was barely any
chance of a fair decision and providing of relief against admin actions.

In 1872, Napolean issued an executive order, the Danko executive order, by which the
advisory body was turned into a court, but petitions could not be directly filed before the
court but the ministers. The Court would decide it after the minister forwarded it.

In 1889, another executive order was passed making the Court a full-fledged admin court
which allowed direct filing of the cases. They would apply precedent law, on a case-to-case
basis i.e. admin law, not law made by the legislature. Thus, 2 systems developed in France:
civil and admin law systems. A dispute between 2 individuals then it would go to the
ordinary courts and under the civil law i.e. law made by parliament. For disputes with the
state, it would go to the admin courts and apply admin law. This was the idea of admin law
on the continent therefore. The 2 systems ran parallel, thus there was no unified judiciary. In
India, we have special courts such as Labour Court, however, at the top they merge into the
same HCs and SC with a unified system of judiciary.

Dicey thus criticised the situation in France as violative of the rule of law, however, they
were actually able to give better service to the people as compared to ordinary courts.

Classification of Administrative Action

The type of action effects the nature and extent of judicial review.

1. Quasi-legislative action – Rule-making action or delegated legislation. Characteristics

of quasi-legislative action (1) action must be general (2) there must be predictability
i.e. we must know what to do and what not to do (3) prospectivity (4) published. The
Courts do not interfere in such actions, unless it it blatantly unfair, unreasonable and
unjust. There is no application of notice and hearing in such cases. The authority is
also not under a duty to give reasons. However, this division is not clear.
In Express Newspaper v. UoI (1958), there was a Working Journalist Act, which had
been passed by the Parliament. Under this act, a journalist wage board existed as an
admin body with the purpose of determining the rate of wages of working journalists,
which their employers MUST pay. They called in the working journalists, who
provided evidence and arguments. Then they called the owners of the newspaper,
asking them what they had to say about it to which they produce their own
arguements and documents. The Court thus decided the salary shall be Rs.
50,000/month. It is based on the procedure followed by Courts, and also matches the
charcateristics of the quasi-legislative actions. Thus, here it is difficult to decide
whether it is a quasi-judicial or quadi-legislative actions. Thus there is a quasi zone,
where a body decides to make a rule, on the basis of facts which are to be objectively
determined so the Courts left it open. Here it is a quasi-legislative action as no right is
violated. State of Punjab v. Tehel Singh – admin authorities are given power wrt
deciding the area of a gram sabha. They decided this by hearing the persons living in
nearby villages, on the basis of which they made a decision. Court held that here it is
quasi-legislative action as there is no violation of a right so there is nothing to do with
 quasi-judicial actions. There is no dispute and administrative policy applies. UoI v.
Cynamide Ltd. – the question was whether the action of the admin authority in fixing
the price of essential drugs was quasi-legislative or quasi-judicial. The Court said it is
quasi-legislative as there are several avenues of legislation. Automotive Tyre
Manufacture Association v. Designation Authority – the question before the
Supreme Court was whether the power to decide on anti dumping duty was quasi-
legislative or quasi-judicial. The Court held that this is quasi-judicial, because there is
a definite dispute and there are evidences to be taken, post which as per a criteria set
by the Anti-Dumping Law, the matter must be decided. There is an appeal also
provided for. Thus, this is a quasi-judicial action.
What is the difference between ordinary law and quasi-legislative law?
(1) nomenclature [Act v. Rules, regulations etc] (2) source of authority [Constitution
v. Act] (3) status [supreme law v. subordinate legislation/delegated legislation] (4)
challenge [to the Constitution v. to the Act].
2. Quasi-judicial action – Decision-making action in a dispute. If it is quasi-judicial, then
judicial review is very extensive. Quasi-judicial action is an admin action with certain
characteristics of a judicial decision. This was discussed by the Committee on
Minister’s Powers 1932, in the UK, which was a high-powered committee. They
discussed various aspects of such actions. the committee laid down how to find out
whether an action is a quasi-judicial action or not – first in a judicial decision: (1)
there must be a lis or dispute (2) there is a presentation of the case (3) the question of
fact is decided on the basis of evidences (4) question of law is decided by legal
submission (5) the case is disposed of by applying law to facts. In a quasi-judicial
case, (1), (2), (3) will be common, but (4) there may or may not be legal submissions
(5) they do not apply law to facts, but they apply the question of discretion wrt what
action should be taken. But this distinction of the CMP is not valid, as many admin
decisions are taken in the same manner as judicial decisions in a Court. Eg: labour
law cases, income tax cases etc. LORD ATKINS in R v. Electricity Commissioners,
laid down a test to see the distinction between the 2: (1) where there is an admin
authority (2) it must have power to decide on the rights of the people (3) it must be
under a duty to act judicially. Then its action will be quasi-judicial and Court can
issue certiorari to quash the decision. Thus, the main thrust is on whether the admin
authority is under a duty to act judiciously and how so? (1) see the express provisions
of the law under which the authority is exercising power and (2) if the law says that
 the authority must give notice and hearing, then the authority is under a duty to act
judicially. Province of Bombay v. Advani – The involved provision is S. 3 of the
Bombay Land Acquisition Ordinance of 1947. The question was whether the power
of the govt to acquire land for public benefit is quasi-judicial or administrative – the
Court said see the express provision and it says the govt may acquire any property for
public purpose if in its opinion it is necessary and expedient to do so i.e. law doesn’t
ask to give notice and hearing, and therefore this is not a quasi-judicial power but an
admin one. Radhe Shyam v. State of Andhra Pradesh – There was a Muncipalities
Act, with 2 provisions which were relevant (1) S. 53A – when a municipal corp is not
functioning properly, the govt may suspend it for 18 months maximum or till they can
(2) S. 57 – if the govt decides to suspend the govt for an indefinite period, they shall
have to give notice and hearing. The Court held, under S. 53A the power is
administrative not quasi-judicial. But the power under S. 57 is quasi-judicial as the
govt must act judicially as per the law, and the court will be allowed to interfere. In
England, Lord Hewart in R v. Legislative Committee of Church Assembly laid down
that the duty to act judicially must be required by law itself. And in India, Nakuda Ali
v. Jai Ratni, the question was whether the power of the govt to grant or revoke a
license [mining] is quasi-judicial or not. The Privy Council said look to the act, and if
the act does not mention notice and hearing then it is not a quasi-judicial function.
Then in R v. Metropolitan Police Commission, admin authority had the power to
grant or revoke the license of a taxi driver. The Court held it is an admin power as the
act does not say that notice and hearing must be given, thus the Court will not
interfere. After this came a difficulty wrt the livelihood of the taxi driver being taken
away, without giving him any hearing or notice. This led to a change – the duty to act
judicially may be implied under certain circumstances such (1) framework of the
power must be seen i.e. if there is a dispute the authority has to make an observation
of facts based on evidence, if there is a provision for appeal, then it will be presumed
(2) where the authority has the power of civil court in the summoning of the witnesses
and protection of the documents, then it will be presumed (3) when the action of the
authority has serious consequences for the person affected by it. Thus, in such cases,
notice and hearing must be given.
3. Administrative action – It is neither rule-making nor decision-making. Cooper v.
Wandsworth Municipal Corporation – Under the Municipalities Act there is a
provision that for any new construction a person must give 7 days notice to the
municipal corporation and if this is violated, the corporation has the power to
demolish such construction. Cooper was constructing a house. One evening after 5pm,
the municipal workers came and demolished the construction. He challenged this
saying that he was not given any notice or hearing. The Court discussed whether this
was quasi-judicial power. It was argued that it is administrative action as law doesn’t
require notice and hearing. But the Court held that there has been injustice to Cooper
and if the admin action has serious consequences, even then authority is bound to act
judiciously if not judicially. Fairness demands some sort of hearing should have been
given and therefore, the action was quashed. Thus, if an administrative action has
some serious consequences, some fairness demands for notice and hearing to have
been given. Therefore, the division between admin and quasi-judicial action has
become very thin. Rich v. Baldwin – There was a Police Act, under which an admin
body of a watch committee was constituted, with the power to appoint police officers
and keep a watch on the police surveillance and dismiss any officer who is not
discharging his duties properly. There was a police officer with a good record,
however in some case there is a charge against him that he tried to hamper the growth
of justice. The Court acquitted him, but the judge made some remark against him
saying that police officers are not expected to put hurdles in the administration of
justice. The Watch Committee on the basis of this remark, dismissed him. He
challenged his dismissal in a Court. The Court asked what type of function it is. Govt
argued that it is administrative as the law does not mandate notice and hearing. The
officer said he had a good record, and the dismissal on its basis carries a stigma for
him for his whole life and he was not even given a chance to explain anything. The
authority may not act judicially but judiciously and fairness called for notice and
hearing. The House of Lord said the line between the actions has become thin, but in
any case, as per fairness he should have got an opportunity for a hearing i.e. even in
admin actions some fairness is implied. In India, in the case of AK Kripak v. UoI,
forest services in J&K were made central services as govt wanted to reorganise the
services there. In J&K the position of conservator of forest is vacant and therefore the
senior officer was appointed. The Govt then decided, by promotion they shall fill the
various positions of assistant conservator of forest. Accordingly, a selection
committee is set up and thus they are to invite applications. In that committee,
Nakureesh was also a member, alongside being an applicant alongside his juniors. 5-6
juniors applied for the same permanent post as him, and selection would be through
 record and therefore a meeting of the committee was called. Nakureesh discussed
with the committee, the applications of all the others but he didn’t sit to discuss his
own file. He was again called in and they again discussed this. Nakureesh was
appointed and this was approved by the Central Govt. This was challenged by another
candidate AK Kripak on the ground that there is a violation of the principle of natural
justice which says that no person should be made judge in his own cause i.e. rule
against bias. Therefore, this decision was contended as invalid. Nakureesh was the
senior-most with a good record, so what was the issue, was contended from the other
side. But it is not only necessary that justice should be done, it is necessary that justice
must be seen to be done. It will not appear to a common man that justice has been
done in this case. Selecting a candidate is an admin function as no right is being
decided, so they are not bound to give notice and hearing. Court agreed that it may be
an admin function but even if so it has a serious consequence for others and thus some
principles of fairness are implied.
4. Ministerial action [not concerned about it]

Characteristics of a quasi-judicial action

1. There must be a lis between the parties, the dispute need not be between 2 parties but
can be only one party against the admin action. Eg: Bank Nationalisation case.
2. The decision must be based on objective criteria laid down by law.
3. The authority is under a duty to act judicially, when it is expressly given in the law
itself and even if law is silent but the admin decision has a serious consequence for
the other party, this duty can be implied.
4. Admin action is not bound by precedent.
5. Quasi-judicial actions cannot be delegated.
6. Court can review quasi-judicial power and may exercise first scrutiny i.e. they can go
into the details of the admin decision including questions of law, fact and policy. But
in admin decisions, court can only exercise secondary scrutiny i.e. see that A. 14 is
not violated.
7. Strict rules of evidence are not applicable to quasi-judicial decisions.

Characteristics of administrative decisions

1. There is no lis.
2. Admin decision is generally based on admin policy and expediency.
 3. Decision is subjective rather than objective.
4. It does not decide a right, although it may affect one.
5. Admin decisions may be delegated.
6. Admin decisions may be invalidated by the court on grounds that it is unreasonable or
arbitrary.

SL Kapoor v. Jagmohan – The govt had the power to suspend a municipal corporation if
found not to be functioning properly. Law was silent on if notice or hearing was required.
Municipal Corp was suspended without notice so they challenged it. The Govt said it was an
admin function and law does not require notice as they weren’t bound to act judicially. The
Court held that the distinction between quasi-judicial and admin actions has been withered
away and we are being liberated from the specific requirements under law. Whenever any
admin action is challenged in court of law, govt. will always say courts cannot interfere and
courts will agree with the govt. We are being liberated from this practice so now courts can
interfere.

Is it admin or quasi-judicial?

1. Appointment of trustees of a temple by the govt – The act provides that trustees are
appointed by the designated authorities. The admin authority laid down certain
conditions Eg: trustees must be Jain, must have donated X amount etc. Those who
were not selected challenged this appointment. The Court asked has the admin
function been exercised in an arbitrary manner? Since there was no proof of this, the
court didn’t interfere.
2. Power of the collector to transfer agricultural land of a tribal to a non-tribal in tribal
states – Giving of permission to transfer was found to be an admin action. Not bound
to give notice.
3. Power of the govt to refer an industrial dispute to an industrial tribunal – Court held
since this is an admin action, the court would not interfere in the absence of
arbitrariness.
4. Power of internment and externment – Police can exercise power of
internment/externment against anti-social elements. It is an admin action, and
therefore the court would not interfere in the absence of arbitrariness.
5. Decision of Chancellor in University case of difference of opinion in the selection
committee and executive council – In one case, the selection was rejected by the
 Chancellor without any notice or hearing. The lady not selected said this is a quasi-
judicial function and she should have been heard. The Supreme Court held this is an
admin action so there is no need for notice, but the Chancellor must act reasonably.

Delegated Legislation/Admin Rule Making/Quasi-Legislative

Power/Subordinate Legislation
Now a trend is visible in all democratic countries that bulk of the law by which the people are
governed are given from the chambers of administrators and not the legislature. Eg: we don’t
know about the NLUJ Act, but we are aware of the rules framed by the University why
exercising its delegated powers to legislate.

Law passed by the legislature has become incoherent and cannot be understood without rules
and regulations passed by the admin authorities. In the same manner, there is a growing
tendency amongst the legislature to pass only skeletal legislations i.e. leave the rest to the
admin authorities. Eg: Essential Supplies Act regulates manufacture, distribution etc. of all
essential commodities but it has only 16 sections. All other important pricing issues are
covered by the govt. this is similar to the Export-Import legislation which has only 8 sections.
From 1973-77, Parliament passed 32 acts, in comparison under these, the govt passed 25,414
rules and regulations. Lord Hewit wrote a book called “New Despotism”. He said this trend
of giving law making powers to the admin authority can lead to authoritarianism & absolute
and the first casualty will be the rights of liberty and dignity. Eg: Hitler became how he was
because he had excessive powers of delegated legislations. Thus, this can be misused by the
executive.

Definitions of DELEGATED LEGISLATION:

i. When an instrument of a legislative nature [which has the characteristics of law
making i.e. generality, clarity, prospectivity etc.] is made by an admin authority [the
executive – elected and appointed] in exercise of powers delegated by the legislature
is called delegated legislation.
ii. When law proceeds from any authority other than the supreme authority, and it is
dependent for its continued existence/validity on this supreme authority, it is
delegated legislation.
iii. Outsourcing of law making power by the legislature to the admin is delegated
legislation.
Governance is not possible without delegated legislation.

Reasons for the growth of delegated legislations:

i. DL is a natural concomitant of intensive form of govt. During British Rule, functions
of govt were highly limited for all purposes, no welfare state, very few laws were
required, which the legislature could provide. After Independence, we are a welfare
state, which is supposed to take care of the people and has to provide for jobs, health,
education etc. Therefore, to fulfil the welfare oblgations, the Parliament is not
sufficing in terms of quantity or quality which is why we need DL.
ii. A global space has been created where authorities take actions which have
implications for states. Therefore, those authorities have to be given powers to make
rules and regulations.
iii. It was thought throughout that after liberalisation, state functions would decrease, but
its functions as a regulator, provider and facilitator actually increased manifold
leading to the growth of DL.
iv. The need for individualisation of law, because generality always falters before the
specifics. The legislature cannot ensure this as suppose it makes a law which is
general and it is applied equally to all, it is not necessary that justice will be done to
all due to difference in circumstances. Therefore, individualisation takes into
consideration individual specifics and can only be achieved by delegated legislation.
Eg: 2 students are over 30 mins late for an exam; the university law states that they
cannot take the exam as they are over 30 mins late; one was late because he overslept,
and the other was late because he lives far away and his bus broke down; justice is
different wrt the application of law.
v. Need for socialisation of law – Direct participation of people in the formulation of law
by which they are to be governed. So the best law is the law you make for yourself
and the second best is law made with your consultation. Both are possible through
DL. Eg: Under Mines Act, mining board makes rules and regulations wrt prevention
of accidents. As per the law, they must be drafter with the help of owners of mines,
after which the govt goes through the drafts, and then law can come into force.
vi. Where experimentation is needed, DL is the answer i.e. where you need a law to
govern a highly volatile/flexible situation which needs experimentation, then DL is
the answer. Eg: to decide how much load a bridge can take in rains, summer etc.
vii. Where crisis legislation is needed, Parliamentary law making falls short as it requires
a lot of time. Thus, to meet the urgency, we need DL. Eg: spread of epidemics, riots,
floods etc.
viii. Where secrecy is needed and this is not possible in Parliament [media involvement
etc.]. DL is the answer. Eg: demonitisation; 1950, Zamindari Abolition Law was
passed, giving govt control over the land and this was done with secrecy.

DL is a compulsive necessity but no welfare state can function without this power given to
the administration. However, there are some dangers inherent in delegated legislation.

In 1939, by a Statute of Proclamation, Hitler was given powers of amending the acts passed
by Parliament and even the Constitution. Similarly in England, Henry VIII became tyrannical
because of the large amounts of law making powers.

Dangers inherent in delegated legislation:

1. Wide DL to admin authorities is subversive of constitutional order. The constitutional
order is democracy, parliamentary form of govt based on separation of powers and
rule of law. When you give this power to the executive, you are violating separation
of powers. It also violated the rule of law as even Dicey said that the law that governs
the people must come from ordinary legislative organ of the state. There is a balance
that the constitution has created between the 3 main organs by giving and limiting
their powers, so when you give DL, which is not warranted by constitutions, it
disturbs the balance and makes it lopsided, which is not the constitutional order. The
constitution is based on a fundamental principle of constitutional trust of electing your
elected representatives and you have faith that they will pass laws to suit your needs
and benefit you. When your reps transfer this power given to them by the reposing of
trust in them, the fundamental principle is violated.
2. Wide DL to admin authorities is erosive of democratic ethos. The fundamental ethos
is constitutional democracy i.e. by the people, of the people, for the people. Therefore,
the different organs have different duties and powers. When you delegate the power to
legislate to a body which already has the power to execute the law, it is undemocratic.
It is therefore erosive of democratic ethos. Whenever you have a grievance against the
govt, you must always look to your elected representative. But now, due to DL, if you
have a grievance, you look beyond the person you elected showing the violation of a
 fundamental constitutional ethos. In America, there is no middle man to represent
their representatives.
3. The executive insulated from popular pressure and isolated from Parliamentary audit
may make law which is less acceptable and effective for the people. When the law is
made by the legislature, there are 2 forces operating (1) popular pressure i.e. people
are aware of the law parliament is making, and people react to it which acts as a check
(2) Parliamentary committees in which the law is discussed totally, which also acts as
a check as they cannot make a less communicative, effective and acceptable law.
Similar checks are not there when the law is made by the executive. Eg: In 2010,
Parliament proposed to enact a Prevention of Torture Act under which in S. 6 was
said no executive officer can be convicted without the permission of the govt, which
diluted the entire concept as how can you prevent torture this way; it was passed by
the Lok Sabha but not by the Rajya Sabha due to popular pressure.
4. This may become a source of corruption and maladministration. Executive ministers
may make laws with their political agenda in mind, which will lead to
maladministration. Eg: sales tax list.
5. If the DL is unlimited, it may transform democracy to dictatorship. Eg: Hitler, Henry
VIII.

It is inevitable and necessary, but keep the DL under proper control via:

1. Parliament
2. Judiciary
3. Procedure – you can make rules and regulations only after consulting the
representatives of the people affected by them.

Constitutional ethos of DL:

It does not expressly prohibit or allow DL. But there are indications that it is not averse to
DL.

1. A. 13 (3) – defines law and it includes ordinances, orders, bylaws, rules, regulations,
notifications, customs and usages; this therefore refers to DL as it is also known by
these names
2. A. 357 and 353 – they say if in any state a President Rule or Emergency has been
declared, then the Parliament acquires all the powers of the state legislatures which
 may be exercised by the parliament or delegated to the President who can further
delegate it to admin officers
3. Ordinance making power is with the President is a legislative power showing
instances in the Constitution which display it is not averse to DL.
4. Courts have also held that delegation of subsidiary law making powers to admin
authority is Constitutional.

Classification of DL:
1. Title based classification – The law passed by the legislation is titled as acts and
statutes, but the laws made by admin authorities is known by various names such as
order, notification, regulations etc. Thus, this can be a method of distinguishing
between the two.
2. Nature based classification – (1) normal delegated legislation – the legislature has laid
down the policy and guidelines of the law, and thereafter the admin authorities make
rules and regulations within that framework, then it is considered to be normal DL
and this is Constitutional; (2) exceptional delegated legislation – it is also called
Henry VIII clause as under the 1539 Statute of Proclamation, the Parliament of
England gave a lot of powers to Henry VIII who could make any changes to the acts
and statutes of Parliaments; this is unconstitutional in nature; (1) where the power is
delegated to amend, modify or repeal even the parent act (2) in this the powers are
delegated without any policy or guideline given by the legislature it is exceptional (3)
if the parent acts prevent immunity from judicial review (4) where the discretion that
has been given is wide and arbitrary; Dwarka Prasad v. State of UP – the power was
given to the coal officers by the statute that in exercise of discretion, they could refuse
grant or revoke any license to the people without any guidelines and this delegation
was thought to be unconstitutional, and was violating a FR.
3. Discretion based classification – (1) normal delegation with limited discretion – when
the legislature passes an act, with policy and guidelines to frame rules and regulations,
and then delegates such power, it is normal DL; (2) conditional or contingent
delegation – sometimes the legislature passes a law in all senses and does not require
any discretionary power; in the UK, during the British Raj, they were only allowed to
delegate conditionally as they themselves were working under delegated powers in
India [delegators cannot delegate] and thus, there was no rules and regulations to be
made but merely dealt with the application i.e. they are given the gun and the powder,
 they must merely fire it; (1) to bring an act into operation Eg: Zamindari Abolition
Act – the govt was delegated the power to fix a date, issue a notification and then
make the act operational (2) to determine the conditions for bringing an act into
operation and in Emperor v. Binori Lal, there were law and order issues in many
states so the Indian Parliament provided the Act to control law and order and it was
complete and they delegated the power of making the act applicable in the jurisdiction
of the admin authorities (3) to extend the life of a statute and in Inder Singh v. State
of Rajasthan, Rajasthan’s law for protection of tenants was complete and the life of
the law was 2 years and the state govt was given the power to increase the life by one
more year if they so required (4) to suspend the operation of law i.e. after passing a
law and making it applicable, if it is no longer necessary, it can be suspended. The
Parliament passes the statutory bonus act with a schedule including the industries
effected by this, and there is a power to exempt some industries, in case they cannot
make such a payment.
4. Authority based classification – (1) supreme legislation – made by the legislation (2)
subordinate legislation or subdelegation – if an authority has a power to delegate its
powers of legislation, and does so, the entity getting this power has been subdelegated
i.e. made by any authority other than the legislature Eg: Essential Commodities Act
the Central Govt is responsible to make sure a reasonable price of basics are
maintained and also ensure their quality; under S. 3 the Central Govt may delegate
these powers to the state govts, and the state govts can further delegate it to any other
admin authority; if the legisation doesn’t allow it then only it cant be delegated. AK
Roy v. State of Punjab – Prevention of Food Adulteration Act was passed, under
which the food admin body was created and it was laid down that any prosecution
under this act, shall be in the name of such authority; power was given to the govt to
make rules and regulations for application of the act; the rules and regulations said
that it can be further delegated to a food officer, but the Court held this is not possible
as you cannot delegate a delegated power unless specifically authorised. Quasi
judicial power also cannot be subdelegated unless authorise. Thus, an admin
authority, cannot further delegate unless specifically given. Subdelegation can be
done in 2 ways (1) law provides for subdelegation (2) the law provides for making of
rules and regulations under which they can subdelegate. But admin powers can be
delegated.
Constitutionality of Delegated Legislations

England:

1. Dr. Thomas Bonham v. College of Physicians, 1610

Granting of license + fining those who indulge in malpractice. Dr. practiced without
license, not malpractice. Fined. Challenged that the college did not have any statutory
basis to do so as they claimed, held even if they did - Coke said that "in many cases,
the common law will control Acts of Parliament" - this idea later became
unfashionable under parliamentary sovereignty.

2. Statute of Proclamation, 1539 – henry VIII

Human Rights Act, 1998
EU Commission on Human Rights
Regulatory Reforms Act, 2006

3. 1932: Committee on Ministers Power - find out the problems with delegation.

USA:

• Every law by which the people are governed should come from the Congress;
• Doctrine of Separation of powers which is the foundation of the American
Constitution;
• Delegatus potus non delegare: The congress is the delegate of the people; people
have given powers to the Congress to govern them. Therefore, delegates cannot
further delegate.
• Fundamental Principles of Constitution of America is government under law
passed by the Congress.
1. Prof. Cushman's syllogism:
Major premise: Legislative power cannot be constitutionally delegated by Congress.
Minor premise: It is essential that certain powers be delegated to administrative
officers and regulatory commissions.
Conclusions: Therefore the powers thus delegated are not legislative powers. They are
instead administrative or quasi-legislative powers.

2. Field v. Clark, 1892:

 Facts: Tariff Act of 1890 delegated power to the President over tariffs; gave Harrison
the discretion issue a 50% tariff on Latin American countries when trade was
unequally and unreasonably introducing goods in US (i.e. dumping goods into US
market)/ Delegation of Commerce Clause power
Issue: Is this an unconstitutional violation of non-delegation doctrine?
Holding: "That congress cannot delegate legislative power to the president is a
principle universally recognized as vital to the integrity and maintenance of the
system of government ordained by the constitution” while holding that the tariff-
setting authority delegated in the McKinley Act "was not the making of law," but
rather empowered the executive branch to serve as a "mere agent" of Congress.

3. Panama Refining Co v. Ryan 1935: Hot Oil Case

Sec. 9 of the National Industrial Recovery Act (NIRA) allowed Prez to prohibit
interstate and foreign trade in petroleum goods produced in excess of state quotas

The Court quashed the delegation and held that no policy and guidelines have been
laid down by the Congress, it is a delegation of essential law making functions.

Lead to the Court-Packing Scheme by Roosevelt

4. Schechter v. United States (1935): Sick Chicken case

National Industrial Recovery Act empowered President to implement industrial codes
to regulate weekly employment hours, wages, and minimum ages of employees in
poultry industry. Allowed.

5. National Broadcasting Co. v. United States (1943)

The Federal Communications Commission had the power to issue regulations
pertaining to associations between broadcasting networks and their affiliated stations,
otherwise known as "chain networks."
Issue: Power to the FCC was unconstitutionally vague, because it did not provide
definite guidelines.
The Court found that the guidelines were the service of "public interest, convenience,
or necessity," and that those guidelines were constitutionally sufficient.

6. Yakus v. U.S., 1944

 System of wartime price controls was challenged - Emergency Price Control - power
to the government to fix prices of essential commodities - allowed wide delegation
because they are taking into consideration the pragmatic considerations but not
theoretical objections.
Constitutional problems would arise only if the legislation were so lacking in
standards that "it would be impossible in a proper proceeding to ascertain whether the
will of Congress has been obeyed".
7. Lichter v. U.S., 1947
Court upheld a delegation to administrative officers to recover "excessive profits'. The
statute War Contracts Renegotiation Act was challenged that the phrase 'excessive
profits' was too vague. Court disagreed, saying that the phrase provided sufficient
standard especially keeping in view the reason why the law was passed and that it was
a wartime situation.

8. Mistretta v. U.S., 1988

Was the Sentencing Reform Act of 1984, abolishing indeterminate criminal
sentencing, establishing the United States Sentencing Commission within the judicial
branch, and empowering seven voting members to promulgate binding sentencing
guidelines for federal judges, a constitutional delegation of criminal sentencing
powers to an independent Sentencing Commission?
Held: Constitutional delegation of powers under SRA 1984
Justice Blackmun delivered the majority opinion. As society increases in complexity,
Congress must delegate its job "under broad general directives". The broad delegation
"is sufficiently specific and detailed to meet constitutional requirements."

9. Whitman v. American Trucking Associations, 2001

Did the Clean Air Act 2000 unconstitutionally delegate legislative power to the
Administrator of the Environmental Protection Agency to set standards of air quality?
The court held that when conferring decision making authority upon agencies,
Congress must lay down an intelligible principle to which the person or body
authorized to act is directed to conform.

India
Pre Constitution Era:
 10. R v. Burah
The Act under consideration was the Act XXII of 1869 Act of the Council of the
Governor-General. It removed Garo hills from the civil and criminal jurisdiction of
Bengal and placed its administration under an officer appointed by the Lt. Governor.
Section 9 of the Act, authorized the Lt. Governor, to extend the provisions of the Act,
to Khasi and Jantia Hills, with incidental changes. Burah was tried for murder by the
Commissioner of Khasi and Jaintia Hills and was subsequently sentenced.

Calcutta HC, relying on the doctrine of ‘delegates non potest delegare,’ held that the
Indian Legislature, itself being a delegate of the Imperial Parliament, could not further
sub-delegate its power under Section 9.

On appeal, Privy Council reversed the judgment of the Calcutta HC. It held that the
Council of the Governor-General was a supreme legislature with plenary powers and
entitled to transfer certain powers to the Provincial Executive. Laws passed by the
subordinate executive authority on the basis of such transfer of power were held to be
valid.

It is, however, characteristic that delegated legislation was carefully termed

conditional legislation by the Privy Council.

11. The King-Emperor v Benoari Lal Sarma 1945

Guv.-Gen passed Special Courts Act to try certain offences by special courts which
could be set up in a State if the Provinces need. Held: conditional legislation.

Federal Courts set up which followed the GoI Act, ’35:

12. Jatinder Nath Gupta v. Province of Bihar, 1949

The provincial government was authorized to extend the applicability of The Bihar
Maintenances of Public Order Act, 1948 for one year, under Section 1(3) of the Act.
The extension could be made with such modifications as it may deem fit.
The Federal Court held that the delegation of power of extension with modification is
ultra vires the Bihar Provincial Legislature as it is an essential legislative function.
A dissenting opinion was delivered by J. Faizal Ali, wherein, he held that the
delegation of power of extension was constitutional as it only amounted to
continuation of the Act.
 This judgment marks a shift from the position adopted by the Privy Council in R v.
Burah. This decision is of great importance, as it implies the acceptance of a rigid
theory of separation of powers by the Federal Court.

Supreme Court set up:

13. In re Delhi Laws Act, 1912

President wanted to know the constitutionality of three Acts:

i. One at a time, when the privy council was the highest court of appeal,
§7 of Delhi Law Act, 1912: Delhi, once part of Punjab, now governed
by LG/Provincial Govt. which had the power to extend any law to
Delhi that was in force in British India.

ii. second when the federal court was of the highest court of appeal, and
§2 of Ajmer and Mewar Extension Laws Act, 1949: Central
Government can extend to the area of Ajmer any law which is in force
in any other province with such restriction and modification as it may
deem fit.

iii. third law when the SC was of the highest court of appeal.
§2 of Part C States Laws Act, 1950: Central Government may extend
to Part C states any law which is in force in Part A states in the Indian
territory with such restrictions and modifications as the government
may deem fit.

Section 7 of the Delhi Laws Act, 1912 & Section 2 of the Ajmer-Merwara (Extension of
Laws) Act, 1947 were held to be valid.

Section 2 of the Part C States (Laws) Act, 1950 was also held valid except that part of the
section which delegated the power of repeal and amend any existing law of the Part C states.

The power of the Indian Legislature in delegating the law making power is not unlimited. The
power of repeal and modifying the existing law cannot be delegated for being a legislative
power.
Court held: Though, each of the seven participating judges delivered separate opinions, on
two points there was unity of outlook amongst all.

Firstly, that delegation of legislative power by the legislature to the administrative

organs was necessary & legitimate and;

Secondly, that there was a need to impose an outer limit on delegation by the
legislature:

 Laying down the policy of the law

 Enacting that policy into a binding rule of conduct. If the legislature has done this,
then they can delegate ancillary law making powers to the authorities.
 Provide sufficient guideline for administration to make rules and regulations. This is
the implied limitation on the power of the legislature to delegate.

The disagreement between the judges was on the question of permissible limits of
delegation. The judges repeatedly emphasized that in India, the theory of separation of
powers does not operate in the area of legislative-executive relationship ONLY division of
powers does.

None of the organs of the State can divest itself of the essential functions which
belong to it under the Constitution. This is based on the DOCTRINE OF CONSTITUTIONAL
TRUST.

Post Constitutional era

14. Jalan Trading Co. v. Milk Majdur Sabha, 1967

Payments of Bonus Act, 1965 gave power to Govt. to make rules not inconsistent with
the Act & these rules shall be final.
Held: unconstitutional.
Minority view by Hidaytullah: sufficient restriction on the unlimited exercise given.

15. Gold Control Act, 1968 - govt can make rules relating to sale, manufacture,
distribution of gold as it deems fit.
Held: Unconstitutional as no policy laid down.
Criticized: Policy is clear by the title of the Act + the Statement of Objects & Reasons
i.e. to stop the smuggling of gold and its availability at reasonable rates.
16. Gamon India Ltd. v. Union of India, 1974
Provision similar to Jalan's case except no finality clause.
Held: Constitutional.

17. Gwalior Rayon Silk Mill v. Central Sales Tax Authority, 1974
S8 (2)(b) of the Central Sales Tax Act authorised levy of sales tax on sale of goods by
the Central Govt. in the course of inter-state trade and commerce at the rate of 10
percent or at the rate applicable to the sale or purchase of goods inside the appropriate
state, whichever is higher was challenged.
The impugned section was upheld by all the judges, though they differed on the extent
of permissible delegation.

Khanna J (majority 3) - The power has also been not unlimited. They cannot fix any
arbitrary rate but adopt a rate of any appropriate state - sufficient policy has been laid
down in the Act itself. [THE POLICY AND THE GUIDELINES TEST]
They rejected the argument that since the legislature could repeal the act it had
retained enough control over subordinate legislation and therefore it was not
necessary to lay down legislative policy or guidelines for the delegate. The REPEAL

TEST is possible only in the presidential form of government.

Mathew J, in his dissenting judgment, upheld the argument, which he again pursued
in a majority opinion in N K Papiah v. Excise Commissioner. He laid down the
repeal test.

18. N K Papiah v. Excise Commissioner, 1974

Karnataka excise Act, 1966 - govt. can fix the excise rate.
Matthew J, the senior of the 2 judges, applied the repeal test and held it valid.

19. Registrar of Co-operative Societies v. V.K. Kunjabamu, 1980

SC reiterated that, "the power to legislate carries within it the power to delegate" but
"excessive delegation may amount to abdication", and 'delegation unlimited may
invite despotism uninhibited”.
 Therefore, the principle is that "the Legislature cannot delegate its legislative
function. Legislature must be laying down policy and principle and delegate it to fill
in detail and carry out policy".
Court again restored THE POLICY AND THE GUIDELINES TEST. Same principles were
laid down by the Supreme Court in Gwalior Rayon Mills Mfg. Ltd. v. Asstt.
Commissioner of Sales Tax and Others A.I.R. 1974 S.C. 1660 and Avinder Singh v.
State of Punjab A.I.R. 1979,S.C.321.

20. Bhatnagar and Co. v. Union of India

Import and Export control Act - creation of an authority + whole system is governed
by the rules and regulation by the central government.
Held: Since policy clear so it is constitutional.

21. D. S. Garwal v. State of Punjab, 1959

Under All India Services Act, 1951, the Central Government was empowered to make
rules for the regulation of recruitments, and conditions of service for person appointed
to All-India Services. Action was taken against a member under the All Indian
Service (Discipline and Appeal) Rules, 1955 framed under S. 3 of the All India
Services Act, 1951.
Under it no express policy or standard was laid down,

However, Parliament took care to see that these rules were laid down on the Table of
Parliament for 14 days before they were to come into.force and they were subject to
modification, whether by way of repeal or amendment on a motion made by
Parliament during session in which they were so laid.

This makes it perfectly clear that Parliament has in no way abdicated its authority, but
is keeping strict vigilance and control over its delegate. Therefore, regarding S. 3
along with S. 3 (3) of the Act it cannot be said in the special circumstances of this
case that there was excessive delegation to the Central Government by S. 3 (1)

22. Avinder Singh v. State of Punjab, 1979

Power given to Municipal Corpn. to impose any tax under the Punjab Municipal Act
for the purpose of this Act.
 Held: "for the purpose of this Act" was sufficient policy.
Under the Act, every municipality prepares a budget showing expenditure and
required income so that expenditure will operate as a limitation on the collection and
imposition of tax. Though the taxing function is an essential legislative function, the
court has allowed wide delegation for necessity.
DELEGATION OF TAXING POWER

There are three powers which are considered to be inherent in the State:

• Power to tax

• Power to eminent domain [taking private property for public use]

• Police power [regulating private conduct for public welfare].

Magna Carta [commune concilium] – Parliament – Bill of Rights 1689 – Act of Settlement,
1688 – specific express authorization not implied construction.

23. Attorney General v. United Dairy Company

Even if the dairy companies agree for the minister to regulate the sale of milk - in
exercise of this power, he cannot levy tax on milk for no express authorization is
provided in the Act of the parliament.

India
24. Orient Weaving Mills v. UoI, 1963
State Act levied multi point sales tax. Power was given to the government to make it a
single point tax on certain goods selected by the government.
Court held that such delegation is valid as specific authorization is given.

25. Avinder Singh (again)

• Power to determine rate of tax can be delegated. The courts are trying to be liberal if
the power to impose tax is delegated to a body which is representative and responsible.
 Control Mechanism of Delegated Legislation

i. Statutes:
a. India: None
b. England: Statutory Implementation Act
c. America: Federal Register Law & Administration Procedure Act

ii. Types of Controls:

a. Parliamentary
b. Procedural (Am.)
c. Judicial (CL)

Parliamentary Control
- inherent in a delegated legislation
- living continuity of the legislation
- Constitutional imperative

GENERAL CONTROL (weak)

a. Memorandum accompanied with the Bill - If any bill comes before the
parliament where there is a provision for delegation of law making power, it
must be accompanied by the memorandum laying down everything.
b. Debating.

SPECIAL CONTROL
 Laying down
 Committees on Subordinate Legislation
1. Whether DL constitutional - P&G laid.
2. Subject matter of DL dealt with the law
3. Imposition of tax through rules
4. Rules bar or nullify jurisdiction of the Court or its decisions
5. Retrospective effect
6. Published
Consequences:
1. Bailey v. Williamson - Park Regulation Act - rules made provision for criminal
prosecution without further directions.

Depending on whether condition precedent or maybe directory:

2. Jan Md v State of GJ - Market Act 1939 - rules to be laid down before parliament in the
next session - couldn't happen due to emergency - held mere directory.
3. D K Krishnan v. Secretary, Regional Transport Authority - Rules under MV Act
should've been put before parliament - directory since no consequences given.

4. State of RJ v. Karma - Essentials Supplies Act - provision that as soon as rules are made
must be laid on the table of the house - directory and won't affect validity.

Procedural control

a. Drafting of the rules & regulations - standard is very poor as it is drafted at the
lower level.

In New South Wales, the provision is such that R&R are vetted by the Attorney-
General before they become law so that they can evaluate whether they violate any
provision of the Constitution.

b. Antenatal publicity – before you frame rules and regulations publish the rules and
regulations in the draft form, invite suggestions and in the light of these suggestions,
frame the rules & regulations.

England - Rule Publication Act & Statutory Instruments Act, 1946

America - Federal Register Act & Administrative Procedure Act (30 days)
India - §23 of the General Clauses Act

1. Raza Buland Sugar Mills v. Ram Manick 1965

Draft rules under the U.P. Municipalities Act, 1916 - Hindi Newspaper - Published in
Urdu.
Q: whether the whole of §131(3) was mandatory, or the part of it requiring publication
in the manner laid down in §94(3) i.e., in a Hindi newspaper was merely directory; and
whether the publication in the Government Gazette of the notification imposing the tax
 was not conclusive proof, as provided in s.135(3), of the prescribed procedure having
been observed.
Held: Urdu Daily had more subscribers, more coverage – substantial compliance was
looked at.

2. Govind Lal v. Agriculture Produce Market Committee 1975

Gujarat Agricultural Produce Markets Act, 1961 – Draft Rules not published at all.
Invalid.

3. Bangalore Woollen Mills v. Municipal Corporation Bangalore 1962

Instead of Gazette, rules published in Newspaper. Held: Substantial compliance.

4. State of Orissa v. Sridhar Kumar 1985

Odia Newspaper - Published in English Newspaper - Invalid because local people can
only understand vernacular language.

c. Consultations of interested persons or the persons who will be affected by the

particular provision
What can be the various methods for consultation?
i. oral
ii. writing
iii. both
iv. ask to send suggestions
v. or come for a meeting
vi. interviews
vii. questionnaire
viii. proforma
ix. representations in writing

If consultation is required, it is provided in the Parent Act itself. In India it had taken many-
many shapes:

i. Consultation with a named statutory body

 Under the Banking Act, the central government can make rules and regulations
but they’re required to consult the RBI which is a named statutory body here.

ii. Consultation with a statutory administrative board.

Under the Mines Act, the Central govt. has been given to make rules and
regulations but not without consulting the Mining Board.

iii. Consultation with a statutory body in charge of a subject

Under the Tea Board Act or Coffee Board Act, there is a board which is
constituted which is the in-charge of the whole subject of tea & coffee –
plantation, production, manufacturing, distribution, pricing, exports, etc.

iv. Consultations with the Affected Persons

Under the Land Acquisition Act, all the displaced persons are given a public
hearing – thereafter, the govt. may acquire.
Similarly, fixation of minimum wage by the central govt. has to be done in
consultation with the Labour Union.

v. Preparation of draft rules by the affected persons.

Under the Mines Safety Act, the first draft of the rules must come from the onus
of the people who are operating the mines as they have first-hand experience and
they know about the accidents. The inspector goes through it. Then ultimately the
govt. looks into it and draft rules are so prepared. They become highly effective.

vi. Preparation of rules by recognized associations

Before you make rules and regulations – you must consult the recognized
associations in the area. Under the Forward Contract Act, there is a provision that
the associations of Forward Dealing Traders must be consulted before the rules
are made final.

Q: Whether such provisions are mandatory or recommendatory?

The Courts have held that if there is a provision as such then the consultation must be real
and not superficial or fake. A directory requirement in a statute is one which is interpreted
as not being compulsory. Failure to comply with a directory requirement would not invalidate
the decision, though in some circumstances substantial compliance will be required.

5. Tulsipur Sugar Mills v. Tulsipur Sugar Cooperative Notified Area Committee 1980
Act had been passed under which the power had been given to the govt. to allot
specific areas to a particular sugar mills that receive all the sugar canes from that area.
If there is no prejudice caused, the court said merely for the sake of arguments, the
R& R will not be considered invalid

6. Ex Parte Sharpe:
Consultation provision was there in the Act and the Rules were also published but the
date for sending suggestions was given as “all those people who are interested in
sending in suggestions must send them within 4 days”. In the former, the court held it
is not reasonable.

7. R v. Richmond Council, 2001

Traffic Regulation Rules: Consult Pedestrians + residents. They consulted only
pedestrian associations so there was substantial compliance especially in contextual
pragmatism.

8. Agriculture, Horticulture and Forestry Industry Training Board v. Aylesbury

Mushroom, 1972
Consultation with agriculture, horticulture & forest industry wrt R&R framed by the
Minister was held mandatory under the Industrial Training Act. National Farmers'
Union was consulted but not Mushroom Growers Association. Held, invalid.

9. Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration

Service, 1978
No consultations with the Labour Union before framing R&R under the employment
protection act, 1975 due to a strike (Administrative difficulty). Held: invalid.

10. R v. Secretary of State for Social Service, 1986

 Social Service Act - Minister sent invite to consult with Housing Bodies - Bodies
asked for extension - not granted - not consulted - prejudice caused - housing benefit
scheme invalid.

11. R v. Cambridge Health Authority, ex parte B (a Minor), 1995

Cambridge Health Authority decided not to fund potentially life-saving treatment for
a young girl. The girl's father sought judicial review of this decision. The Court of
Appeal found that the Health Authority had acted lawfully in its refusal. One of the
considerations the authority was entitled to take into account was its budget.
However, the merits were not to be taken into account – only procedural proprietary –
did not consult public health authorities.

12. State of Tamil Nadu v. K. Sabanayagam, 1998

Under Payment of Bonus Act, Govt. can exempt any category of industry from the
Schedules mandating bonus irrespective of financial position. Court held - mandatory
to consult before exemption.

13. Godawat Pan Masala Products Ltd. v. UOI, 2004

Sale of Gutka prohibited due to the rules framed under the Tobacco Act. Invalid -
Govt. did not consult manufacturers.

d. Post-natal Publicity

Publication is a must – ignorance of law not an excuse unless they’re unpublished.

1. Harla v. Rajasthan
Under Opium Act, permissible carrying limit reduced from 100 gm to 50 gm – never
notified. Person who was arrested – released.

2. Narendra Kumar v. UoI

Rules framed under essential commodities Act, 1955 were not published hence not
binding.
3. State of Maharashtra v. Mayer Hans George
 Rules were published on 8th Nov. George is out of the country returns on 24th Nov
and carrying gold which is now in excess to the revised rules and he is arrested.
Ignorance of law cannot be an excuse.

4. State of Kerala v. P. J. Joseph 1958

Govt. changed the rules and made a rule that if a person who is holder of a liquor
license if willing to pay 20% commission, may be granted extra license for liquor -
Never published. However, one person knew this rule. He applied for this extra
license. Court did not allow.

Judicial Control

USA

1. Marbury v. Madison 1803

Chief Justice John Marshall – first asserted the right/supremacy of the Supreme Court to
determine the meaning of the U.S. Constitution. Marshall struck down a portion of the
Judiciary Act of 1789, establishing the PRECEDENT that if Congress passes a law that
violates the Constitution, that the Court can and will declare it unconstitutional.
Result of the political struggle between John Adams (Federalists) & Thomas Jefferson
(Republicans). Just before leaving office, Adams appointed new judges, including several
justices of the peace. Commissions for these justices had been signed by Adams, but not
delivered by the time he left office. The Jefferson administration then refused to honor the
appointments for the commissions that hadn't actually been delivered prior to the end of
Adams' term. Marbury claimed §13 of the Judiciary Act authorized the Supreme Court to
grant mandamus in such a case.

Judiciary Act of 1789 gives the Supreme Court the power to issue a mandamus as a
matter of original jurisdiction. However, this Act is in conflict with Article III, §2 of the
US Constitution, which enumerates the court's original jurisdiction and Congress cannot
enlarge it. If there is a conflict between a constitutional provision and a congressional
statute, the Court has the authority and duty to declare the statute unconstitutional and to
refuse to enforce it. The Constitution is paramount and it is the province and duty of the
judicial department to say what the law is.

2. Scott v. Sanford (Dred Scott Case) (1857)

 SC struck down the Missouri Compromise Act of 1820 and declared that slaves were
property who had no right to sue.
Supreme Court decided that US Congress did not have the power to prohibit slavery in
federal territories and slaves, as private property, could not be taken away without due
process - basically slaves would remain slaves in non-slave states and slaves could not
sue because they were not citizens

Britain

Two grounds of judicial review:

i. Substantive ultra vires - where rules and regulations framed by administrative

authority are beyond the powers of the parliament; where exercise of rule making
power is in direct conflict with the parent act; after 1998, administrative rule
making can be challenged if it violates the Human Rights Act, 1998 or other EU
regulations; it can also be challenged on ground of unreasonableness or
arbitrariness.

ii. procedural ultra vires - while making rules and regulation, executive not followed
procedure laid down in Act by Parliament; when violation of statutory instrument
Act, 1940 where procedure is laid down; where administrative rule making is in
violation of principle of natural justice; where rule is to be framed on factual
matrix and opportunity to be heard is not given, rules and regulations are not
valid.

1. Institute of Patent Agents v. Lockwood, 1894

Parliament passed an Act under which government can make rules and regulations but
rules and regulations have to be deemed as enacted by the Parliament and contained in
Act itself. Challenged. Court laid down Hershall Doctrine/Lockwood Doctrine and held
that Parliament is supreme. If Parliament says so, court cannot have jurisdiction.

2. Minister of wealth v. Yaffee 1931

Parliament passed a similar law. Question was that whether court’s jurisdiction was
barred. Lockwood doctrine was overruled by this case. Yaffee doctrine: Court said no
 matter rules and regulations shall be deemed as enacted by Parliament, Court’s
jurisdiction cannot be ousted if there is substantive ultra vires.

3. Anisminic Ltd v Foreign Compensation Commission [1969]

Suez Crisis property nationalization claim. Error of law made by a public body voids the
decision and a statutory exclusion clause does not preclude judicial review.
(SKIPPED SATURDAY)

India
Principles:
• Presumption of constitutionality
• Favourable interpretations
• No idealism or dogmatism but on contextual pragmatism
• Court take into consideration the generality and they are not guided by freak
exceptions
• They can even read up or read down the law to make it constitutional
• The judicial review of delegated legislation cannot be barred.
• In the rules and regulations, if the Act is put in 9th schedule, the rules and regulations
can still be challenged
• If the parent Act is deemed unconstitutional, then rules and regulations ipso facto
become unconstitutional
• Court cannot review policy matters unless there is violation of fundamental rights

Grounds of judicial review of delegated legislation:

Enabling Act is ultra vires the constitution: Doctrine of Excessiveness

1. Chinta man Rao v. State of MP, 1951

Law prohibiting bidi manufacture during agricultural season violated FR.

2. K Parsdurang v. AP, 1985

Essential Commodities compulsorily to be sold.
Enabling Act should not violate the implied limitations of the constitution: implied limitation
which is given In Re Delhi Laws Act. This is second part of the doctrine of excessiveness.

 If the enabling act does not lay down any policy or guideline and delegates law
making power to the administrative authority then it shall be deemed that the act
violates the implied limits the constitution:

3. Mohini Jain v. State of Karnataka, 1992

DID NOT UNDERSTAND HOW IT IS RELEVANT. Followed in Hamdard
Dawakhana Case also.

4. St. Jose Training Institute v. National Council Of Teacher Education 2003

Under NCTE Act, no person can open an education institute unless he gets permission
from the government.
There was no set policy to accept/reject these applications.
Held: policy becomes clear if we see all the released notifications.
the policy is concerned we have to see 5 and 6 things:
1. The subject matter of law;
2. Scheme and purpose of the law
3. Provisions of the statute
4. Facts and circumstances of the case
5. Nexus between rules and policy

Rules are ultra vires to the Constitution

1. Dwarka Prasad v. State of UP, 1954

UP Coal Act - power to Controller to make rules - he made a rule saying he can
exempt any person from the requirement of license in exercise of his discretion.

2. Kerala Samsthana Chethu Thozhilali Union v. State of Kerala

Abkari Act, 1902 - power to gov. to make R&R regarding intoxicating substances -
Govt. made rule to nationalise all the trade in intoxicating substances.
All the licenses granted to private traders/operators cancelled.
 To curb unemployment - govt. made a compensation rule - to give 30,000 each + new
licensees must employ at least one entrenched employee in order of seniority.
Held: rules are invalid. 19(1) (g) + Policy is only to regulate trade in intoxicating
substances. Power to rehabilitate the retrenched worker is not the policy.

Rules and regulations are ultra vires the enabling Act

1. Kerala Samsthana Chethu Thozhilali Union v. State of Kerala

2. Ajoy kumar Banerjee v. UoI, 1984

General Insurance Business Nationalization Act, 1972 delegated power to the
administrative authority to reorganize general insurance. The rules and regulation so
framed laid down the pattern of salary of the employees.
Court held that rules and regulations are in excess of the policy of the law

3. Kunj Behari Lal Butail v. State of H. P. (2000)

Ceiling Of Land Holding Act fixed the ceiling for land holding and gave power to
State to make R&R for enforcement.
One rule framed exempted tea estates from ceiling.
The policy of the law is that the government has to enforce the ceiling law. The above
rule is for providing for exceptions – held as invalid.

Rules and regulations are in direct conflict with the enabling Act:

4. A K Roy v. State of Punjab, 1986

Food Adulteration Act created Food Health Authority to make rules and regulations to
enforce this Act. Act says that every prosecution under this Act shall be taken in the
name of the Food Health Authority. The Authority made a rule that food inspectors
can initiate prosecutions in his own names. Invalid.

5. DTC v. BBL Hazela, 1972

DTC Act laid down that a person with certain pay bracket shall be dismissed by or
disciplinary actions against him can be be taken only by the General Manager.
 General Manager made a rule that this can be done by assistant general manager.
Direct conflict with the Act. Rules invalid.

6. Corporation Bank v. Abharam Sale Bullion Merchants 2009

Act provided that if any excess tax has been deposited by any person, it must be
refunded. Rules and regulations framed under the Act laid down that the if the excess
tax has been deposited, it shall be readjusted against the other obligations. Rules and
regulations are in direct conflict.

Rules and regulations are in excess of the power but not in the direct
conflict

7. Dwarka Nath v. Municipal Corp Delhi, 1971

Government passed Prevention of Food Adulteration Act - provided that government
can make rules and regulations to protect people against misleading quantity and
quality of food stuffs which are marketed in packages.
Rules made therein laid down that every manufacturer shall write on the label the
name and address of the corporation in Hindi and English both.
A company was prosecuted because they had not written the address in detail in both
the languages, though the address was there.
Court came to the conclusion that rules are in excess of the power. Thus the rules are
ultra vires the enabling Act. [DIDN’T GET IT]

Rules are are ultra vires the procedures laid down in the enabling Act
[Procedural Ultra Vires]

8. Banwari Lal v. State of Bihar, 1961 – Mines Board Case (Again)

9. State of Orissa v. Sridhar Kumar 1985 – Odia v. English Paper (Again)

10. District Collector Chittaur v. Ground Nut Traders Association 1989

 Under the Essential Supply Act power was given to the state to make rules only after
consulting the central govt. Rules were framed without consultation. Court held it to
be a case of procedural ultra vires.

Rules and regulations are inconsistent with the general law of the land

Certain rules have been made which have the effect of repealing any existing law:

11. Kerala Samasthana Case, 2006:

The government made rules under the Abkari Act which had the effect of overruling
the Industrial Dispute Act [Entrenched Employees] as they made rules related to the
compensation and rehabilitation

If there is merely contradiction and the rules state that the law will prevail over the rules then
there is no problem.

12. A.V. Nachane v. UoI, 1981

The rules and regulations framed by the government shall have the effect irrespective
of anything contained in any other law for the time being in force. The rules were
regarding the pension. It was argued that rules are invalid because they had the effect
of repealing the existing law.
Held: it is simply an attempt to bypass the contradiction which is there in the ordinary
law. It is valid.
The rules shall have effect irrespective of the fact that there is a contradiction between
the law and the rules

Mala Fide

13. Bailey v. Conole (1931)

Australian Act passed by Legislature to allocate routes to the govt. buses and private
owners of the buses.
Rules framed in such a manner that highly profitable ones were allocated to govt.
alone. Challenged for extraneous motives & held invalid.

14. Gopilal Agarwal v. State Of Orissa, 1972:

 Drug & Cosmetics Act gives power to the Drug Controller to make rules &
regulations regarding the quality and quantity of the cosmetics and the drugs as well
as fixation of fair price so that the purpose behind is that drugs and cosmetics are
available to the people with good quality, proper quantity, and at reasonable price.
Drug controller makes these rules in exercise of his power for the manufacture of eau
de cologne (perfume) with maximum 1% poison as people were using it to get high –
because this rule is made for this extraneous consideration but the power is to certify
purity.

15. State of Rajasthan v. Union of India, 1977

9 govt. were dismissed as soon as congress came into power at the Centre. It was held
that people elect centre and state governments with different considerations. Mala fide
because:

o manifest error in the exercise of power. Doing something for which one is not
authorised
o non-application of mind
o when one has considered irrelevant factor or not consider relevant factors.

16. Karnataka State Transport Authority v. Karnataka, 1986

The power given to the authority to make rules and regulations regarding the issue of
licenses and all other things related to transport.
Rule that regional transport officer shall grant license on preference basis to all those
persons who are recommended by the tourism ministry held mala fide. Completely
took away the discretion of the administrative authority.

Violation of Natural Justice

When required by the parent Act during making rules

17. State of Tamil Nadu v. K Krishnamurthy, 2006

Mines And Mineral Regulations And Development Act, 1957 Act lays down that
before the government terminates the license of any person, he must be given three
month’s notice and proper hearing.
 Admin. auth. made a rule allowing termination without N&H. Invalid.

When Parent Act is silent

but if the body has made rules which have the effect of divesting a person of a vested
right, then principles of natural justice demands that he must be given notice and hearing:

18. Gutka Pan Masala v. UoI, 2004 – total ban on gutka products without N&H. Invalid
because people are being devoid of their business.

Other Grounds:

o That the parent act violates the division of powers

o Extra territorial operation

o Ex-post facto legislation:

o Violation of the commerce clause by the State Governments

o Article 311

o One has sub-delegated his power to make rules and regulations without the authority
of law

o Rules and regulations have been given retrospective operation without authority from
the Parent Act.

Arbitrariness

19. Royappa Case

Art. 14 extended to state actions.
 20. Two Singing Cases: One Non-residential, the other residential. 50 yards.

21. Marido Chemicals v. Union of India, 2004

Debt Recovery Tribunal Act was passed - it was laid down that bank can file cases
against defaulters but they shall have to deposit first with the tribunal 75% of the
claim that they are claiming. Held: arbitrary

Vague & Uncertain Rules & Regulations

22. Flying Gliders in the Park which may cause annoyance in England

The court always takes into consideration contextual pragmatism:

23. Maharashtra State Board of Education v. Paritosh, 1954

The Maharashtra Education board makes a rule that no revaluation or inspection of
the answer sheet shall be allowed to any persons. This was challenged before the
court on the ground that this takes away the right of a person to a reasonable decision.
Held: the rule is valid keeping in view the impracticability of revaluation and showing
the answer sheets to students.

Violate the common law rights of a person

24. Sophy Kelly v. State of Maharashtra, 1976

Maharahstra Education Board made a rule that no head of the institution can detain
the examination form of any student and they shall have to submit it to the board.
Sophie Kelly is the headmistress of a convent public school – she says that it violates
her common law rights i.e. a right which a person gets from a long tradition and
custom. In public schools, there is a long standing tradition that a headmaster or
mistress has the right to detain the form of a student who hasn’t shown a certain level
or progress. The Court held that the rule framed by the Education board is invalid.
Unreasonableness

 If we divide the human civilization into three phases: dark age, renaissance or the age
of reason and the present age (age of realism), then we find that when the age of
reason began (17th century onwards) people started talking that rule making action of
administration is unreasonable.
 Munroe v. Watson, 1887: law passed by the municipal corporation prohibiting
people from singing on streets without license from the municipal corporation.
Held: restriction is unreasonable. If the singing does not disturb anybody, then why
restriction has to be placed. They applied the reasonableness test.

 Kruse v. Johnson, 1898: in this case, the municipal corporation made a rule that no
person is allowed on the street, but cannot sing within 50 yards of residential building.
Held: rule is reasonable because they had to balance the private peace and tranquillity
and the right of the persons to sing.

 In Britain, the requirement of reasonableness may arise from:

o the act of the parliament: may say that administrative authority shall give
reasons for their reasons.
o It may also arise from the requirement of the common law which require that
whenever an administrative decision is taken that deprives a person from his
right of legitimate expectation, then reasons must be given.
o It also arises from rule of law and natural justice.
o It also arises from Human rights Act, 1998 and other EU obligations.
o It also arises from Tribunals and Enquires Act, 1958: when a tribunal decides
any matter the decision must be supported by the reasons.

 In America, the requirement of reasons arises from

o Due process clause
o Administrative procedure Act

 In India, this requirement arises from

o The act of the legislature either expressly or impliedly
o Article 14: arbitrariness is the antithesis of reasonableness
 o Article 19: only reasonable restriction can be imposed of FRs
o Due process of clause of Article 21
o Principles of natural justice and rule of law
o Power of judicial review

 Reasonableness means three things:

o The decision should not be arbitrary: it should not be based on whims and
sentiments. There must be substantial reasons to support it.
o Unreasonableness is something which is unjust: which is unfair
o Which is impartial: no inequality

Two tests to determine reasonableness:

Wednesbury’s test: laid down by House of Lords in the case of Associated Provincial
Picture Houses Ltd. v Wednesbury Corporation [1948]: in England, the cinema houses
were closed on Sundays. There was a demand that they should remain open. So therefore,
Wednesbury Municipal Corporation had the rule making power and they made a rule that
cinema houses shall remain open on Sunday also but no child below the age of 15 shall be
admitted. Challenged on the ground of unreasonableness and arbitrariness. A test was laid
down:

If the administrative authority has no properly conducted itself in law, they have acted
beyond the authority of law, then it is unreasonable;
If the authority while taking a decision has not considered all relevant factors;
That they have taken into consideration irrelevant factors;
The decision shows bad faith and motivated by extraneous consideration;
That the action is so outrageous in define of logic and standards of morality that no
man of ordinary intelligence and prudence can reach such a decision on given
facts and circumstances.

Test of proportionality: Wednesbury test is more based on subjectivity and thus less
trustworthy. Here, the court will see:

1. The purpose of the law; whether that purpose is legitimate; whether the purpose is
constitution and intra vires.
 2. What means have been achieved by the administrative authority to achieve such
object.
3. Whether the same result could have been achieved by some less burdensome
means.
4. What is the nexus between the means and the ends.

In Kruse v. Johnson, Lord Russel said unreasonableness is

(i) partial and unequal in operation

(ii) capricious i.e. based on whims without application of mind
(iii) when it is oppressive
(iv) when it is malafide
(v) when there is no nexus between the means and ends and
(vi) when it gratuitously interferes with the rights of the person to the extent that no
reasonable person could take it.

Munroe v. Watson, 1887: law passed by the municipal corporation prohibiting people from
singing on streets without license from the municipal corporation. Held: restriction is
unreasonable. If the singing does not disturb anybody, then why restriction has to be placed.
They applied the reasonableness test.

I. PRINCIPLES OF NATURAL JUSTICE

- Different names - universal justice, procedural fairness, justice of nations, common
sense justice, juristic humanism, fair play in action
- Am - Due Process/ Continental - Proportionality/ Common Law - soul of admin law
1. PURPOSE:
- history of liberty is the history of procedural fairness
- limit powers to make it fair
- to protect life, liberty, dignity
2. DEVELOPMENT:
- The eternal quest found the concept of due process, SoP, RoL, NJ.
- Roman: 2 courts - jus gentium and jus civile
- Stoic Philosophers - 300-200 BC - Natural justice = Higher law. right reason draw
universal fundamental principles. Freedom, equality, uniformity, etc.
- Medieval: identified by god - Thomas Aquinas
- Modern: Age of Reason - questioning - not based on nature or god but instinct of men
- inherent based on reason and not faith - geometry
3. DEFINITION:
- Ethico-legal
- developed by courts
- principles of law and morality
- Common Law: Equity
Statutory Law: NJ
- England first time: the Three B cases.
o Dr. Thomas Bonham v. College of Physicians, 1610:
o Bagg’s case – disenfranchised w/o notice and hearing
o Dr. Bentley’s case - cancelled PhD w/o hearing.
4. CHARACTERISTICS OF THE PRINCIPLES OF NATURAL JUSTICE:
- cultural & civilized society
- judge made and judge lead concept
- Vague, Complex, Ambiguous – Ridge v. Baldwin – thing not nicely cut & dried still
exists.
- spirituality: religion, natural justice: law – people oriented, social justice.
- flexible and not rigid unlike provisions of law
o contextual and pragmatic
o bull in china OR bee in a bonnet
o Union of India v. P K Roy – Application of PNJ depends on:
 the kind of admin action
 policy & scheme of the law
 facts & circumstances of the case
 Quasi Judicial– full force.
 Quasi Legislative OR admin: not so much
 Fundamental Rights – full force.
- different from the principles of the justice of the nature i.e. the law of the nature –
survival of the fittest
- aim at individualisation as generality of law conflicts with the specifics of life.
- Not to destroy the law but to fill it – if conflict, law prevails.
 o to mitigate the harshness of the law – equity which is comparable to NJ
developed.
o Customs may not always give justice so equity courts developed F,R,J.
o Equity v. Law = Law.
 Cooper v. Wandsworth – 7 days notice construction.
 Olga Tellis case – street vendors on delhi crowded zones’ pavements.
- Can PNJ be excluded from law?
o Art. 311 – no govt. service can be terminated without notice and hearing.
 two exceptions:
 impracticable
 national interest and security of the state

WHEN DOES PNJ APPLY?

- First time: Quasi-Judicial England

o Local Government Board V. Arlidge, 1915 – unfit building demolished on
report of municipal corpn inspector which a minister approved – people said
we were not heard – court said no it’s an admin action. Doesn’t matter.
o Franklin v. Minister of Town and Country Planning, 1948 – minister
insulted – doesn’t matter. Admin action not attracted PNJ.
o R v. Metropolitan Police Commissioner, Ex Parte Parker, 1953 – driver’s
license cancellation without N&H - admin action. No PNJ.
o Nakkuda Ali v. Jayaratne – cancelled mining license – no n&h req – admin.

- Turning point: Quasi judicial or administrative actions applied.

o Ridge v. Baldwin – 1964 when House of Lords – if a person suffers civil
consequence because of an admin action which is QJ/AA.

- India: 1969
o Kraipak: applicable when:
 suffers civil consequences
 an infraction of his personal or property rights
 pecuniary damages, material deprivations
 rights have been violated e.g. mandatory in criminal cases
  violation of one’s civil liberty
 suffered non-pecuniary damages - aesthetic sense like taking away of
passport
 carries stigma
 if legitimate expectation [legally protected expectations] are violated –
govt. fails to follow some policy they said they would.
 R v. Secretary of State, Home Affairs, ex parte Khan: British
national who adopted a child from Pakistan refused entry visa
which was the declared policy of the govt.
 SC Welfare Association v. State of Karnataka, 1991 –
notification under the Karnataka Slum Area Improvement Act,
1973
 Rashid v. Home Secretary, 2005 – policy to grant asylum
under certain conditions. His was refused – but policy was
never public. Court held not material, only that it created LE in
him.
o DOCTRINE OF ESTOPPEL: where state has made any representation to
you either by conduct or by promise, then State shall be bound by it if it has
changed the situation to your disadvantage. In Estoppel, the person can claim
benefit when the other party has changed its position to his disadvantage. But
in legitimate expectation, even if the change does not cause disadvantage, still
it can be challenged.
 R v. Durham County Council, ex parte Curtis, 2000 – old age home.
 Bone Transplant Facility

CAN A DIFFICULTY IN APPLYING THE PNJ BE A GROUND OF VIOLATION OF PNJ?

Bhagwant singh v. Commissioner of Police, 1985: impracticable & impossible v. mere

difficulty.

ACTUAL PRINCIPLES OF NATURAL JUSTICE:

1. Nemo judex in cuasa sua

2. The rule of reason/ Right of Speaking Order (America)

3. Rule against Bias

 French biasis – not straight but oblique
 Psychological basis – difficult to take decision not in own’s favour
 Caesar's wife must be above suspicion
 Dr. Boniham’s v. College of Physicians of Cambridge University – QJ
 Dictionary Meaning: one sided inclinations/swing.
 prejudice
 favour
 hostility
 pre-disposition
 disfavour
 Not all biases are avoidable – sub conscious.
 It is important that there be a threshold to disqualify:
 Apparent bias or real danger bias – automatic disqualification.
- e.g. financial or proprietary interest in the subject matter – bus.
- e.g. himself party to the dispute – manager in factory.
 Real Likelihood of Bias - no automatic disqualification
- Inward-looking
- Judge does not go beyond evidence to see if there is a possibility.
 Reasonable Apprehension Test –
- not look to the possibilities
- but to the probabilities of bias
- outward looking
- Ordinary Man would come to the conclusion of biasness of judge
 Appearance Of Bias – European Courts of Human Rights
- Real Possibility of Bias
- Whether a fair minded and informed person having considered the
facts and circumstances will conclude that there is a real possibility
of bias

INDIA: allegation of bias on the basis of religion, ethnicity, national origin, gender, age, class,
political affiliations, membership of the societies is not considered a sufficient bias.
DIFFERENT KIND OF BIASES:

A. Personal Bias - between the adjudicator and the person who is adjudicated which are
personal in nature and which create a real possibility of bias.
 A K Kripak v. UOI, 1969 - clash between his personal interest and interests of
the competitors.
 S P Kapoor v. UOI, 1981 – HoD writing confidential reports for dept.
promotions in which he was also a candidate.
 Mineral Development Corporation v. State of Bihar, 1960 – permanent lease
license of the mine owner cancelled after a fresh notice was issued – minister
was an the opposition candidate in elections where mine owner had defeated –
Animosity.
 State of UP v. Mohd. Nooh, 1958 – police constable ill – MIA 1 month – SP
hoDe – became the witness also – cannot be.
 D C Agarwal v. State Bank of India, 2006 – RBI person filed criminal cases
against colleague – declared not fit for promotion by the committee that had
those people – real possibility of bias.

DOCTRINE OF WAIVER - take an objection against personal bias at the earliest opportunity.

DOCTRINE OF NECESSITY – only one person can take a decision, and you say that this person
is bias, then who will take the decision.

 e.g. Speaker to decide impeachment of a judge.

 Prez to decide age of the judge
 Contempt Petition by Judge
 RTI applicability by SC

A K Yadav v. Haryana, 1985 - interview by UPSC - relatives of members selected - SC said

doctrine of necessity - no one else can take interviews.

Kingsley v. UK, 2002, EU Human rights court – Gaming Board under the Act – Chariman’s
final authority to grant license – public event spoke against a person who was finally not
granted -

 Court: Doctrine of Necessity.

  Appeal to EUHC - either the court must itself decide whether the license is to be given
to be given or not or the court must appoint a board to decide it.

B. Pecuniary Bias (an apparent bias)

 Dr. Boniham’s case
 Dimes v. Grand Junction Canal Co – Lord Chancellor Cottenham discovered to have
had shares in a canal company presided over a case it brought in equity against a
landowner. Dismissed.
 Jeejee Bhoy v. Asst. Collector Thana – AG told that Justice Gajendragadkar had
shares in the co-op society in question. Recused.

Question: If officers start recusing themselves, then who is going to hear the cases.

US: recusal policy (1993)

 unless the interest of the deciding person is substantial, he need not recluse
himself from the case
 even if the involvement is substantial, even then the Judge must bring it to the
notice – only if the parties have no objection, he can hear the case
 if there is an investment in the name of the nearest relative, in that case it has
to been seen whether that person is independent unit or not

e.g. Dick Cheney raised an objection against hunting Justice Samuel Alito refused to recluse
– question of culture. In that culture, you can keep public life separate from private.

C. Subject-Matter Bias - Overall interest in the matter

 R. v. Deal Justices ex parte Curling, (1881) - a Magistrate - member of the Royal
Society for the prevention of cruelty to an animal did not prove a real likelihood of
bias.
 Murlidhar v. Kadam Singh, 1954: BJP MLA challenged Congress MLA - wife of the
chairman of the elections’ tribunal an active member of the congress party. Held:
evidence not sufficient to prove that the mind of the judge was so clogged that he was
not able to think of anything else.
D. Policy Bias
 USA: not a bias - its officers are required to faithfully believe in the policy and execute it.
 England: mind of judge should not be closed owing to that policy.
o Franklin v. Minister of Town and Country Planning, 1948
 India: Not a bias.
o BALCO case – before deciding on the policy of privatization – workers not heard
o Unless the fundamental rights, malafide or bad faith proved.

E. Departmental Bias/Official Bias/Institutional Bias

 Departmental fraternity if the prosecutor and the judge are part of same deptt.
 e.g. Nationalisation of roads case – employee v. not an employee.
o G Nageshwar Rao v. Andhra Pradesh State Transport Corporation, 1959:
Private bus owners heard by the Secretary of Ministry of State Transport.
o G Nageshwar Rao v. Andhra Pradesh State Transport Corporation II, 1959:
Private bus owners heard by the Minister at the Ministry of State Transport.
o Kondla Rao v. AP Transport Corporation – same.
o Hari v. Commissioner of Police, 1965 – externing a person from the jurisdiction
of a police station - Deputy SP heard & SP approved – Court held that if the
hearing and deciding officers are different but they are from the same
departmental, the departmental bias shall not be attracted.
o Krishna Bus service v. State of Haryana, 1985 - Government buses and private
buses are competing on roads - general manager of the Haryana transport
corporation the power of DySP – can cancel license, impound buses, etc. Bias.
o Institute of CA v. A P Rao, 1986 - Final authority that approved the report of the
departmental inquiry committee had two members which were common [members
of the inquiry committee and the ex-officio members of the final authority].Bias.
o Hindustan Petro Chemicals v. Yashwant, 1991: corporation allowed to lay down
pipes – in case of damage, a member of the corpn made the hearing officer to
decide compensation – bias.
 US: institution of hearing officers - list of federal govt. approved judges.
 England: institution of hearing inspectors.
F. OBSTINACY BIAS: when one is not open to reason
State Of West Bengal v. Shivananda Pathak – worker’s promotion due. Then his salary.

4. AUDI ALTERM PARTEM/ PRINCIPLE OF FAIR HEARING

India: None.
America: Administrative Procedure Act, 1946.
England: Tribunals and Enquires Act, 1977.

Cooper v. Wandsworth
Bagg’s case, 1615.
Dr. Bentley’s case, 1723
Olga Tellis case

Mandated by:
 Constitution: e.g. 21, 311
 Law: Mining Act
 Where law is silent but person suffers.

Application of PNJ depends on:

 the kind of admin action

 consequence of the action
 facts & circumstances of the case

COMPONENTS OF FAIR HEARING:

A. Notice –
o Actual
o Constructive - such that man of ordinary intelligence and prudence would
make inquiry and know the fact but he is deliberately denying inquiry.

 Contents of a Notice – sufficient info.

 Adequacy of a notice –
i. depends on facts and circumstances
 ii. is a justiciable issue.
iii. must not be vague and must give an exact situation.
 Difficulty in giving notice is not a good defence e.g. Bhagwant Singh – notice before
FIR.
 Cannot be claimed as a matter of course or formality - prejudice to be proved. e.g.
Keshav Mills v. UoI, 1973 – Govt. took control of the mills after an inquiry
committee report w/o notice under Industrial development and regulations Act.
 Notice may be individual or collective e.g. Shiv Sagar Tiwari v. UoI, 1997 - out of
turn govt. allotments of govt. property made based on a general notice published in
Newspaper - when the number is indeterminate, collective notice can be given.
 If the notice is not given, the proceedings become irregular and not illegal.
 How to be served? Personal notice, post, conspicuous space.
 statutory notice cannot be waived but otherwise in following situations:
o person makes a suo moto rep.
o person has a knowledge of all the facts e.g. Keshav mills case
o person has not suffered any prejudice e.g. a person is on probation, after
probation, services may be terminated and for that notice and hearing are not
necessary.
o person voluntarily participates in the proceedings
B. Right to know the adverse evidence
 either law tells how otherwise
 give copy
 give summary of docs
 inspection of files
 photographs/ notes of evidence
- Takshawari Cotton Mills V. Commissioner Income Tax, 1955 - negative
confidential reports of government servants cannot be used against them unless they
have been given a copy of such report and opportunity to rebut.
- Bank Of Patiala V. S K Sharma, 1968 - bank officers service regulations: these
provide that whenever there is a disciplinary enquiry, three days in advance he must
be given the copy of all the evidences against him. He was only called to take notes.
Violation.

C. Right to Present the Case: Written or Oral mode

 Union of India v. J P Mittal, 1971: Judge’s DOB incorrect – written rep. made to the
President after he declined oral hearing. Decided by the Prez. No violation held by SC.

When unfairness would be caused:

 When the other party has been orally heard;

 would create a serious prejudice or hardship to the other party;
 matter is technical & legal and the person is poor and illiterate as he would be not
be able to express himself in writing effectively
 stakes are very high:
 person is going to lose job or property. E.g. Olga Tellis case/Ridge v Baldwin

England & US: unless the statute requires, oral hearing is not a part of natural justice.

Professor Wade says word is “hearing”, that a person should be heard, so hearing means
hearing through ears and not hearing through eyes. Reading cannot be hearing.

AK Gopalan Case: Fazl Ali (Minority): Oral hearing necessarily part of NJ.

 Majority: Nope.
 NMT Co-operative society v state of rajasthan, 1963 – 8 witnesses refused to come for
hearing – Society asked for coercion from Govt – SC refused - Duty of the person to
bring the witnesses on his own.
 A K Roy v. UoI, 1982 - preventive detention – same.
 Murtaza hussian Ansari v. state of UP, 1984 - UP service tribunal - DSP wants 8
witnesses to be examined - tribunal asked for 900₹ - TA/DA/allowances - SC held
violation of NJ as he could not afford.

D. RIGHT TO REBUT EVIDENCES

Whether the PNJ includes right to cross examination?

Criminal Justice System: Inherent part of the criminal justice system. Witnesses are not
supposed to be independent and honest thus cross examination is warranted.

PNJ & administrative proceedings: No unless some unfairness is being created.

  State Of Jammu And Kashmir V. Gulam Mohammed, 1967 - witnesses deposed on
an affidavit – copies given to Gulam Mohammed to explain and contradict such
depositions. No violation of PNJ - as SC held administrative process cannot be
judicialized so unless some prejudice is shown, cross examination is not part of PNJ.
 UP Ware Housing Corporation V. Vijay, 1980 – when deposition not on affidavit but
oral & person not present – element of unfairness – violation.

When such prejudice can be said to be caused

 Person suffers a serious civil consequence e.g. loss of livelihood.

o Town Area Committee v. Jagdish Prasad, 1978: a person’s services had been
dismissed on oral deposition.
 orally deposed and their depositions have been taken into consideration
o S C Girotra v. United Commercial Bank, 1996: Bank’s Fact finding committee
against an officer to come to the conclusion that whether a disciplinary committee
is necessary or not. It was and the first report was considered by it. Violation.
 Where technical questions of law and facts are involved and the person has humble
qualifications
 Where the denial of cross examination will result in failure of justice
o State of Kerala v. K C Shaduli, 1977: Sales Tax Officer imposed a best judgment
assessment on the assesse on the ground that the tax return which has filed are
wrong – said dealer faked book entries as some were found in wholesaler’s not
his. Not given a chance to rebut before assessment was made. Violation.

However, one’s plea of cross examination will not be allowed:

 On the ground of impracticability.

 If there is no personal stigma involved and no prejudice is caused
 In preventive detention cases because names of the informants cannot be disclosed.
 Where it will not result in fairness
o Hira Nath Mishra v. Rajendra Medical College, Patiala, 1973: Holi Medical
College. SC said that when the copy of the evidences had been given to you, you
were given the opportunity to rebut and it is situation where disclosing the identity
would have resulted in unfairness.
 Where cross examination would completely result in the failure of administrative process.
E.g. Under Gunda Act, where bad character person are tried in a summary manner and
 then evidences are collected against them from the informers. However, people are
reluctant to depose against them. Therefore, if cross examination is allowed, the entire
process shall fail.

E. RIGHT TO BE REPRESENTED BY A LAWYER

No but part of due process under Article 21 and USA.

US: Assistance of lawyer is never denied. If assistance of a lawyer is not allowed, one is
always allowed the assistance of a friend as a common law right. However, such friend
cannot be lawyer.

India: Many statutes prohibit representation through lawyer.

 Family Court Act

 FEMA
 Essential Supplies’ Act
 preventive representation Act

Assistance can be provided with the permission of the authority.

 Industrial Dispute Act,

 CCA Rules relating to inquiry of government servants

Where representation of a lawyer is allowed as a matter of course

 Income Tax Act

 Criminal cases mandated by Art. 21
o Nandini Satapathi v P L Dani, 1978 - right to a lawyer is not confined to a trial
but are entitled to it at the investigation and remand proceedings. Legal Aid.
 If one party has been allowed the benefit of a lawyer, then this cannot be denied to the
other party.

F. NO EVIDENCE SHOULD BE TAKEN AT THE BACK OF THE OTHER PARTY

Errington v. Minister of Health, 1935 – Minister approved the report of an inspector to

demolish some buildings – the inspector had spoken to the owners and the residents once and
then only to the residents second time – report based on second time. Violation.
Held: Should not be interpreted literally. It simply means that administration can take
evidence against you in any manner they like but that evidence must be brought to your
notice and you must be given an opportunity to be heard.

Hira Nath Mishra case – med college guys entering girls’ hostel forcibly.

Ceylon University v. Fernando, 1960 – inquiry against student - eacher gave evidence
against the students in his absence. However, the student was informed about the evidence
and was given an opportunity to rebut – both parties need not be present together.

AMERICA: U/s 5(c) of the Administrative procedure Act, off the record consultation is
prohibited unless opportunity is given to the other party to participate. Even if the
administrative officer is taking an official notice of any act, even that must be brought to the
notice of the other party and the other party shall be given the opportunity to rebut.

G. ONE WHO DECIDES MUST HEAR

 Rule against divided responsibility
 rule against institutional decision
 rule against anonymous decisions

All the executive actions are taken in the name of the President and the governor and thus it is
impossible for them to hear all the matter. They have to take help from their sub ordinates.
This rule of one who decides must hear was developed in Morgan v. US.

 Morgan v. US - Sy of Agri - hire godown and decide rent - subordinate officer gave
hearing, recommendations - file went to Sy who approved. Challenge did sustained – who
heard did not decide. But actually Court also said that se if he has applied independent
mind and not mechanically approved.

Concept gave rise to tribunal system.

 Local Government Board v. Arlidge (UK) – HOL: administrative proceedings are such
where the deciding officer has to take help from the subordinate person.
 G Nageshwar Rao v. AP State Road Transport Corporation, 1949 - secretary invited
objection, the secretary gave the hearing and ultimately decision was taken by the CM.
 G Nageshwar Rao, 1953 , IInd Case: Minister gave the hearing, secretary made the report,
CM approved the report. Here the court held that if the CM has taken a conscious
 decision while going through the whole file, reading all the documents and evidence, then
the requirements are met.

H. RIGHT TO A SPEAKING ORDER OR REASONED DECISION/ RIGHT TO REASONS

1. Reason make the action objective rather than subjective;
2. If the reasons are given, then the accused person feels that he is not a victim of any
revenge but the decision is justified by the law;
3. They are necessary for developing public confidence in the administrative process,
4. They are necessary where there are provisions for appeal or judicial review.
5. Reasons make the actions democratic.
6. They show the application of mind to the case
7. Reasons create a good precedent.
8. Absence of the reason makes the decision arbitrary and thus violates Article 14 of the
Constitution.

Royappa case: if decision not given, the decision is arbitrary.

Sunit Batra case: when one is putting a person in solitary confinement, he shall have to
provide reasons.

Reasons become necessary when:

 QJ Action e.g. termination of probation of an employee.

 Where any appeal or revision is provided.
 Where serious prejudice is being caused: there is a loss of livelihood, career,
reputation, stigma etc.
 Where are decisions are aberrant - not normal. They are out of the line.
o for a serious negligence, small amount of compensation has been given or for
a small negligence, high compensation has been given etc.
 Where public policy requires it

 USA: Due Process & the Administrative Process Act.

 England: The tribunals and enquiry’s act - [English law: it should always be in the file,
but they communicate the reason only on demand].
 India: Reasons on file and reasons community always.
 EU: The Human Rights Convention says when there is a violation of human rights,
intelligible reasons must always be given.
 Adequacy of the Reasons: must be able to justify.
 Perfectly intelligible and must show application of mind.
o Under the Preventive Detention Act, 8 situations are there where a person can be
preventively detained. In one case, the government issued a preventive detention
order and gave those particular eight grounds serially. Court held that these are
rubber stamp reasons as one has not applied his mind as to out of eight, which
would be applicable in the present case.

WHETHER THE VIOLATION OF PNJ MAKES THE DECISION VOID OR VOIDABLE?

Ridge v Baldwin: where principles of natural justice are attracted and were violated:

 the violation will make the decision void and cannot be cured by any subsequent
hearing in the hearing process.
 if the PNJ are attracted at the initial hearing and they are not given, the decision is
void and it cannot be cured if the hearing is given at the appellate level.

Professor Wade says that decision may be void and voidable would depend on the facts and
circumstances of each case.

 an error of notice and hearing not given - Yes.

 when it is a matter is an error of jurisdiction - No.

India: voidable NOT Void.

 Maneka Gandhi v Union of India - N&H not given before impounding passport - post
decisional hearing given.

England: voidable.

 R v. Governor of St. Gregory’s RC aided High School, ex parte Roberts, 1995 -

disciplinary action against a student, not given a proper hearing - Principal gave N&H
- cured.

CAN PNJ BE WAIVED?

 R v. Parole Board, 2005, House of Lords - parole board asked person to appear
before it - person refused - waived? yes. Cannot be assumed by default - has to be specific
refusal.
 Criminal cases: can NOT be waived.

SHOULD THE REPORT OF THE ENQUIRY BE SHOWN?

Article 311, there were two enquires to be conducted when an action is taken against a
government officer [during the draft constitution]:

i. During the course of decision wherein a hearing officer is hearing the case to report;
ii. Once the report is made - supplied to the government employee and he would have the
right to make a representation to the ultimate authority.

Later on, it was thought that it delays the matters and the constitution was amended and the
second hearing was dropped.

As administrative proceedings cannot be equated with judicial proceedings, the Courts said
that the report should not be shown unless the affected person shows any prejudice cause to
him by not showing the report.

 Suresh Koshi v. University of Kerala, 1969: DisCO against student – report before
VC – approved punishment. This was challenged as the report of the enquiry was not
shown. The court held that merely because the report has not been shown, it does not
violate the principles of natural justice unless prejudice is shown.
 Keshav Mills v. Union of India, 1973: Not PNJ to show reports. Here, no prejudice is
caused as there was only one reason for the difficulties, i.e. financial crisis.
 Managing Director, ECIL Hyderabad v. B Karunakar: Report of the enquiry officer
need not be shown as a matter of routine to the government officer before final
decision is taken. Cannot be automatic invalidation of the state action unless prejudice
can be shown.

I. RIGHT TO A CONVENIENT FORUM

Within reasonable time and at a reasonable distance. If it is inconvenient then it is a violation

of principle of fair hearing.
  USELESS FORMALITY THEORY

If the circumstances are such where no useful purpose will be served by providing the PNJ
and situation is such where even if providing notice and hearing will not make any difference
in the situation.

 Implies that if application of NJ is a mere formality - it may be avoided.

 However, this theory is wrong because a court cannot prejudge the issue.

Ridge v. Baldwin: Court rejected UFT as court should not prejudge.

Board of High School v. Chitra Srivastava: 70% attendance rule - 10% short and not
allowed to sit for exams. Notice and hearing was deemed useless in this case. In this case, the
persons were provisionally allowed to take exams. Exams cancelled for those whose
attendance was found short.

Justice Sikri: “to some mind, PNJ is burdensome. Administrative decisions are delayed
because of notice and hearing. But, this is a price which has to be paid if we desire that the
society by the rule of law”.

Aligarh Muslim University v. Mansoor Ali Khan, 2000: bye-law of AMU – unauthorized
absence will lead to termination of services. MAK absent for 5 years. No N&H required.

State of Karnataka v. Mangalore University, Non-teaching Employee Association, 2002:

Two interpretations of University Rule – one gives allowances, the other does not.
Authorities used the second and withdrew without N&H. No violation as law itself bars such
allowances.

 NO PREJUDICE RULE

Now the courts are moving towards ‘no prejudice’ rule.

Ashok Kumar v. UoI, 2009: an ineligible person selected by Selection Committee due to
oversight – terminated services – no n&h given – you knew your mistakes. what prejudice?

State of Karnataka v. Kuttappa, 2005: repeated misconduct of a daily wage worker –

services terminated w/o n&h after several punishments – no prejudice. He knew.

Dharam pal satya pal v. CCE, 2015: under the finance Act, government issued certain notice
in which some tax benefits were given to some persons. Later on, this notification was
challenged before the court of law and it was declared invalid. Government gave a recovery
notice. Challenged for violation of PNJ as they were not heard.

Cinnamond v British Airports Authority [1980], cancellation of taxi driver’s permit without
notice and hearing as he misbehaved with certain passengers – banned from entering
premises except as a bonafide passenger. Justice Denning, however, held it as useless
formality as it is a purely administrative function.

WAIVER OF PNJ:

 Exclusion in case of emergency: Maneka Gandhi v. UoI: impounding can be done in

emergency but post-decisional hearing has to be given.
 Where there is a danger to the process. Malak Singh v. State of Punjab, 1981: Malak
Singh’s name was entered into the confidential register for surveillance by Police without
notice and hearing. Held: it would defeat the purpose of the administrative action.
 Where the matter is purely administrative: no right has been violated. e.g. selection
committee has rejected you.
 On the basis of impracticability: R Radhakrishan v. Osmania university, 1974:
whole entrance test examination for MBA was cancelled for mass copying. Challenged on the
grounds that no notice and hearing was given. Held that you have not suffered any stigma and
it is impracticable to given notice and hearing to everyone.
 Where the action is interim and preventive: During inquiry, person suspended - no
notice and hearing.
 Where administrative action is a rule making action: PNJ are not attracted to
legislative area.
 Where no right of any person is violated: applied for a post, not selected, no notice
before rejection, as such person has no right to get the post, PNJ are not attracted. E.g. after
the contract is over, his services are dispensed with, no notice and hearing is required.
LIABILITY OF THE GOVERNMENT IN CONTRACTS:

In India, government can enter into contract in two capacities:

• Under a statute [statute authorizes the government to enter into certain contracts]
• In exercise of its exercise of its executive power [inherent power of the executive].

India:

 no special law government public contracts.

 Art. 294, 299, 298, 300 deal with the liability of the government in contracts and torts.

Therefore, we are partly governed by the constitutional provisions and partly we are governed
by the Indian Contract Act.

England & US:

 The public contracts are governed by private law contracts.

 There is no special law governing public contracts.

France:

 a special and developed contract law relating to public contracts.

PRE-CONSTITUTIONAL POSITION:

East India Company – trading Co. never enjoyed any exemption in the contracts entered into
with private individual.

 Bank of Bengal v. United Company - Co. took loan for war prep - never repaid - said we
are public authority - court held responsible as a pvt individual.

1833: Dual Char. of Co. - representative of the crown for the colonised territories.

 Noben chandra dev v secretary of state: Ganja license auction - highest bidder deposited
money but Co. refused to issue license - Co. has sovereign functions - sp. performance
can't be allowed. No longer bound as a pvt. individual.

Liability of the government was statutorily recognized under the

 Act of 1833,
  1858,
 1919
 1935.

From there, the constitutional provision 298 and 299.

 Article 298 gives power to the contract to enter into contract with the private
individual in exercise of its executive power.
 299 lays down the essentials of a government contract:
o must be in writing
 Union of India v. Raliya Ram, 1963 - Writing does not mean any
particular form unless provided by rules and regulations -
correspondences for purchase of cigarettes for army accepted as
contract.
o expressed in the name of the President or the governor
 Chharterbhuj v. Maheshwar, 1954 - signed by authorized person but
not expressed in Prez/Guv's name - VOID contract.
 Karamshi v. State of Bombay, 1964 - signed b/w minister & pvt party
for supply of irrigation water from canal - not expressed in guv's name
- void contract.
o executed on behalf of the president or the governor
 Davigo’s government factory v. Rajasthan, 1970 - Police IG - supply
of uniform - govt. refused - it was implied that it was on behalf of
guv/prez.
o signed by the authorized person.
 Express authorization: government provides expressly in notifications
about the authorities.
 Implied authorization: State of Bihar v. Karamchand Thapar, 1962: A
construction contract not signed by the authorized person who was
secretary PWD but by chief engineer. Court held that there is an
implied authorization and thus the contract is valid.
 Bhika Raj Jaipuria v. Union of India, 1962: tender was issued by the
Railways for the purchase of food grains for railway fair price shops.
Instead of secretary, railway board, divisional superintendent signed it.
The railway board secretary allotted wagons for the supply of food
 grains, he ordered the distribution of the food grains to the shops and
therefore the court held that it is a case of implied authorization.

299 NOT FULFILLED?

Mandatory requirements – VOID contract – govt. cannot be sued.

Karamshi v. Province of Bombay, 1964.

CAN THE GOVERNMENT RATIFY THE MISTAKES?

No – void contracts cannot be void.

France – Yes.

REMEDIES FOR A VOID CONTRACT?

 Section 70 of the Contract Act: if a person lawfully delivers certain things to other
person non-gratuitously and other person has taken the benefit of it, then the other
person must compensate.
o New Marina Coal Co. v. UoI, 1964: Rly. used coal supplied by Co. When it
came to payment, it was revealed that contract is void. Compensated.
o State of West Bengal v. B K Nanda, 1962: construction of building –
occupied by govt. that did not pay as no authorized signatures. s. 70.
 Section 230(3) of the Contract Act: where the principal is disclosed but cannot be
sued, then in such cases, agent can be personally sued.
o State of UP v. Morarilal Brothers, 1971: Horticulture – Pvt. Cold Storage
Owner. Whole season space was vacant. Govt. also suffered losses. Court held
that Section 70 benefit cannot be given to you because the government did not
receive any benefit.
 Since govt. cannot be sued – 230 asked. Held: this section pre-
supposes existence of a contract. if contract is not void, then no
remedy.
 Section 235’s remedy asked. Where the agent untruly represents himself as an agent,
and induces the other party to enter into a contract with him and the principle does not
ratify the contract, then agent can be held responsible. Held: in our opinion, this also
pre-supposes a valid contract. If the initial contract is invalid, this section would not
be applicable.
By entering into a contract, can the government disable itself from its legitimate
constitutional authority?

 Secretary PWD v. Adani Ginning Factory: government has agreed that it will supply
the electricity at a fixed rate for a long period. After some time, the rate changed.
Company filed a case against the government. Held: by entering into a contract,
government cannot disable itself from exercising its constitutional power.

If the contract is breached, where dose the remedy lie?

 Civil Courts
 Writ - R.D. Shetty v. International Airports Authority, 1979 – art. 14 violated.

BREACH OF CONTRACT

England:

 King can do no wrong. No liability for breach of the contract.

 Then the people applied to the king: petition of right. Then the king nominates some
person who shall act as defendant. He was the nominee of the king. This practice was
disliked by the House of Lords.
 Thereafter, Crown Proceedings Act, 1947 was enacted: government will be liable in
the same manner as a private individual.

America: public contracts are governed by private contract law.

 Unfair contract terms Act, 1977: applicable to government contracts.

 If in a particular government contract which restricts the liability of the government
for negligence or breach of contract, then such clause shall be considered as invalid.

LIABILITY OF THE GOVERNMENT FOR THE TORTS COMMITTED BY ITS

SERVANTS (VICARIOUS LIABILITY):

State is a legal entity and not a living entity – has to act through others. The vicarious liability
is based on three principles:

• Agency principle: let the principle be liable.

• Master and servant principle: where a person employees another person and during the
course of employment that person commits a wrong act by which harm is done, then the
master is held responsible. Who acts through others actually acts himself.
• Socialization of compensation: In a democratic society, if any person of the society has
suffered any loss or has been wronged, then everybody of such society must share his
burden.

England

 Originally, COMMON LAW PRINCIPLE OF IMMUNITY OF THE CROWN: Crown was liable
for servants’ fault.
o It was incompatible with the concept of justice.
o Dicey said that such a principle is absurd.
 moved to OFFICERS’ LIABILITY: the servant has wronged somebody, then he will
make request to the king through the petition of rights and the king shall nominate one
person as his servant and case is filed against such selected person. Therefore, the
crown was indirectly held liable.
o This legal fiction was also found absurd.
o There was a demand that this doctrine should be abolished and the rule of law
demands that government must be responsible in the same manner as the
private individual.
 Therefore, in 1947, Crown Proceedings Act was passed.
o laid down that Crown shall be liable for the torts committed by the servants in
the same manner as a private individual is made liable.

USA

 Federal Tort Claims Act, 1946: Government liability was fixed as that of a private
citizen for the torts committed by its servants.

India

 no law relating to the tort committed by the servants.

 It is a nascent democracy.
 Government has lot of responsibility for social justice and has to take multifarious
actions.
  Therefore, if the government is held responsible, then it will burden the exchequer a
lot.
 Therefore, law is not rigidified and it is left to the courts to pass a decision against the
government, if the case deems so.

The liability of the government from the torts of servants may arise from Article 294(b).
This clause says that liability of the state may arise out of contract or otherwise.
‘Otherwise’ suggests that government liability may also arise on the tort committed by its
servants. Nothing is direct but indirect inference can be drawn.

Article 300(1) refers to the extent of liability of the government. It says that the liability
of the Government will be the same as it was of the dominion and the provinces under
the Government of India Act, 1935.

1935 Act said that: the liability will be the same as it was of the secretary of state in
Parliament under the Government of India Act, 1915.

1915 Act provides that the liability of the Crown will be the same as the secretary of
state in council under the Government of India Act, 1858.

1858 Act says that the liability will be the same as that of the East India Company.

East India Company, in 1833, acquired dual character.

 Power was given to make peace and war and therefore, the territories which they gain
through war were considered to be crown’s territory for which east india co.
represented as crown.
o Bank of Bengal v United Co., 1831: bank loan not paid back – pvt. has to.
o P & O Steam Navigation Co. v. Secretary of State for India, 1861: Calcutta
Port – horse carriage – iron bars – negligent servants.
 The CJ said that after the Act of 1833, the co. has the dual character.
But the liability of the company will be the same as that of a private
individual who is engaged in trading activity.
 It is true that the co. has the dual character, and performs sovereign
functions, but it does not make it a sovereign authority.
 However, company may not be held responsible for the acts of the state which are:
 a. Acts which are not done under the color of any law but are done through the
executive authority of the crown;
b. Acts which are not enforceable under the ordinary courts.
c. The acts which are committed on foreign soil against foreign citizens.
 Sovereign functions are those which cannot be carried on by private individuals
unless specifically delegated under law [power to tax, police powers, exercising
power over foreign nationals, acts of hostilities].
 Non-sovereign functions of a state can be performed by the private individuals like
factories or the servants here.

This decision was interpreted in two different manners.

• Novin Chandra Day v. Secretary of State, 1876: Providing Ganja licenses is a

sovereign functions and therefore, specific performance cannot be granted.

• Secretary of State v. Hari Bhanji, 1882: Consignd goods from Bombay to Calcutta –
duty charged higher than necessary – not a sovereign function as it is under the colour of law.

CASES BEFORE THE SUPREME COURT:

1. State of Rajasthan v. Vidyawati, 1962: PWD Jeep kills someone – SC: whole concept
that crown can do no wrong is a feudalistic doctrine and does not apply to India. Therefore,
the government is responsible for the acts of the servants.

The difference between sovereign and non-sovereign functions is not required. Socialization
to the compensation is the rule if the government is democratic in character.

2. Kasturi Lal v. State of UP: Justice Gajendragadkar tried to bring in the sovereign and
non-sovereign by totally ignoring the doctrine of act of the state. Excess jewellery of a
bullion trader confiscated by police and stolen by the incharge. Held: Government is not
liable for sovereign functions. In this case, the sovereignty of the crown was delegated to the
police officer. Therefore, whatever the police officer is done cannot make the state liable. In
Vidyawati case, it was not a sovereign function as anybody can drive a jeep. However, no
one can arrest a person unless power is given by the State.

3. State of MP v. Chiranji Lal, 1981: a demonstration. Lathi charge – damage to pvt

property – no compensation granted as sovereign function.
In order to given benefit to the citizens, the courts have followed other routes, i.e. General
Law of Torts:

4. Nagendra Rao v. State of AP: Essential Commodities Act – explicit grain that was
‘not fit for human consumption’ - Inspector confiscated and destroyed – negligence: liable.

5. Lala vishambar lal v. Agra Nagar Palika, 1973: food inspector confiscated aata-
godown – ruined - Suit filed for compensation. sovereign function but negligent: liable.

6. Shyam Sundar v. State of Rajasthan, 1974: Fatal Accident Act to give compensation.
PWD truck carrying labourers. Negligent driving. One labourer fell out. Suffered injury.
Argued that it is a sovereign function.

7. Basava Kedi Patil V. State Of Mysore, 1977: theft in house – recovered goods stolen
from police custody – police responsible.

8. Uphar tragedy victims association case, 2011: the SC stressed that State should pass
law making clear like England [Crown Proceedings Act] that what is the extent of liability of
the government for the torts committed by its servants.

CONSTITUTIONAL TORT (INTENTIONAL TORT OR WILLFUL TORT):

Sovereign or non-sovereign, if a constitutional tort is committed, the government has to pay

the compensation. It is in those cases, where the fundamental rights of the people are violated
by negligent acts of the government servants. Classical example of judicial creativity.

• Rudal Shah v. State of Bihar, 1983: acquittal orders lost – 14 yrs of jail – negligence
of govt. - compensation under Article 32. The Court granted compensation for illegal
detention without going into the question of sovereign and non-sovereign for this being the
case of constitutional fraud.

• Khatri II v. State of Bihar: wrongful arrest and detention. India has not signed the
treaty for compensation for wrongful detention - Case for compensation. Justice Bhagwati
decided that government cannot take benefits of its own wrongful actions. They cannot put
premium on inefficiency and lawlessness. Compensation granted.

• Anil Yadav v. State of Bihar, 1981: Bhagalpur blinding case. In order to solve the law
and order problem, the police rounded up some bad character person and punctured their eyes
with sharp instruments. Government took the plea of sovereign function. Court held that this
is a case of intentional tort. Compensation to be given

• Mahabir Prasad v. State of Rajasthan, 1983: custodial death. Court allowed

compensation.

SPECIAL PRIVILEGES OF THE GOVT. AS A LITIGANT

1. DOCTRINE OF NOTICE –
Section 80 CPC- if a civil case is to be filed against a govt. a notice of 2 months is to be
given. After this period, one can file the case.
However, this rights can be expressly or impliedly waived by the government.
 Create difficulties in certain situations where relief is required immediately.
o State of Orissa v. Madan Gopal, 1952: the person had a leased property from
the government. Government sent a notice that within 15 days, surrender the
lease property and remove everything from it. Otherwise, the government shall
forcibly acquit you from the property. Therefore, the Court recommended that
amendment should be made so that in such situations, the case may be filed
without giving the notice.
o The Law Commission also recommended and therefore, the Section 80 was
amended in 1976. Now, the court has power to grant emergent relief if the
court is satisfied.
 In the notice,
o one has to mention who is giving notice
o to whom notice is being given.
o lay down the cause of actions
o relief to be claimed.
o If there are joint tortfeasors, notice has to be given to both the persons.

Generally, it is seen that the notice requirement is defeated by the Government itself.
Therefore, it serves no good purpose. That’s why, in Salem Bar Association v. Union of
India, 2005: The Supreme Court said that the Government must appoint an official who must
receive notice and file adequate and relevant reply and decide consciously that whether the
case has to be contested or not. Therefore, the notice requirement can be made beneficial for
public at large.
2. IMMUNITY FROM THE OPERATION OF THE STATUE:

England:

Parliament passes law for everybody, whether it is applicable to states.

 Before 1688, the law was that king is not bound by its own law.
 After revolution, when the parliament became supreme, the question is that whether
the law of the Parliament bounds the executive?
The rule of interpretation is that the act of the parliament does not bind the
government unless the law is made applicable to the government expressly or by
necessary implication.
 After the Crown proceedings Act, 1947, situation remains nearly same.
o Crown can take advantage of a statute though not mentioned in it, if it is a
beneficial legislation. But, no Act shall prejudice the rights of the crown
unless mentioned expressly or by necessary implications.
 Therefore, the law expressly lays down that executive shall be bound by it
o e.g. Road Traffic Act, 1960: it expressly lays that this law shall also be
applicable to the vehicles owned and operated by the state
 Sometimes, an Act of the Parliament may apply partially to the Government and fully
to the public.
o E.g. Equal work for equal pay Act, 1970 applies to the civil services but not
the defence forces.
 In the same manner, the parliament may exempt the crown completely.
o E.g. Town and Country Planning Act, 1970 does not apply to the Government.
 However, if the general statute is silent and there is certain benefit of that statute, then
the govt. may take that benefit
o E.g. Statute of Limitation applies to everyone.

INDIA:

A statute passed by the parliament shall not bind the executive unless made applicable to the
executive either specifically or by necessary implications [where public interest in involved].

Express:
 Province of Bombay v. Municipal Corporation Bombay, 1947: Municipal Corporation
Act provided that municipal corporation can lay down water pipes inside and outside the
city of Bombay. Q: Whether pipes can be laid down on the government land? Held:
Government is not bound by its own law unless made applicable to it expressly or by
necessary implications. Not express so no.
 Director Of Rationing And Distribution v. Corporation Of Calcutta, 1960: bye law of a
municipal corporation that anybody who maintains any godown or any storage facility for
storing grains, shall have to take license from the municipal corporation. Director of
rationing under the GOI owned but did not – said not express that govt. needs to so no.
 Superintendent And Legal Remembrance Of Legal Affairs V. Corporation of Calcutta,
1967: the director of rationing case was overruled. There is a bye law of the municipal
corporation that anybody who is running the business of running weekly markets, they
must take a license from the corporation. Government of west Bengal prosecuted for
violation. Public Interest Law - Justice Subba Rao laid down that government shall be
bound by its own law in the same manner as a private individual UNLESS EXEMPTED

expressly or by necessary implications.

NECESSARY IMPLICATION:

 State of Maharashtra v. Indian Medical Association, 2002: Maharashtra university

health science Act, 1998 was passed. A management shall apply through the
university to the government for permission. Court held that by implication, it does
not apply to the government.

3. POWER TO WITHHOLD INFORMATION FROM THE COURT

 Monarchy: King gets to decide.
 In a democratic knowledge society, who owns the information in the public domain?
Democracy cannot survive unless people have an access to information. It is for this
reason that right to information act was passed. People are the owner of the
information but it is possessed by the government.
Also, right to information is a fundamental right. If there is a competition between public
justice and private justice, who should win? Why government be allowed to without
information? Here, we are not concerned about information to the public but the court.

There are two arguments in its favor:

 PUBLIC INTEREST: if the disclosure of the information would violate public interest
than that information should not be disclosed by the government. If the truth will do
more harm than benefit, then that truth should not be told.
 CANDOR ARGUMENT: if every information which is with the government is allowed to
be disclosed, it prohibits free and truthful expression of opinion by the public servants
on fine. They will not be able to criticize courts and the government.

o There may be a situation where disclosure of the information will inhabit the
administrative process itself. E.g. no whistleblower shall come forward if he knows that his
name can be disclosed.

o If the full disclosure destroys the system itself. E.g. every country keeps secret services
for external and internal use. If every information is allowed to come before the court, then
the whole secret service system will collapse. Police system also works on the system of
informants. If the information of informants is not kept secret, whole system will collapse.

o If the press is compelled to disclose all the sources of information, the whole
independence of the press will be destroyed.

The difficulty here the collision of private interest and the public justice. If the document
does not come on record, than private justice suffers. If the document comes on record, public
justice suffers. Fundamental test here is a public interest test. Here the courts employs the
doctrine of proportionality. In order to create a balance in this conflicting area, certain rules
have been developed by the court:

o If the document is not produced by the government, the government cannot use that
particular document on a later stage for its own benefit.

o The court can draw adverse inference that the document is not being produdced because
it is against the interest of the person who is claiming it.
o If the document is produced, court will not allow any collateral use of that document.
E.g. State of Bihar v. Kripalu Shankar, 1987: the case was filed against the government. The
petitioner asked the court to compel the government to produce a particular file. Court asked
the government to produce that file. If was found therein that the government servants have
written adverse remarks against the judges in those file. Petitioner wanted to use this file to
file a case for contempt of court. The court held that court will not allow any collateral use of
that particular document.

o Affidavit by the government, that the disclosure of the document is injurious to the
public interest, will not be considered conclusion. The court is the final arbiter. Court will see
whether it will jeopardize the public interest or not. In England also, the minister has to file
public interest immunity certificate. When it is filed, the courts have held that this certificate
is not final. The court shall decide this.

o Policy documents are generally not disclosed. e.g. documents relating to defence service,
foreign affairs, where public harm shall be caused.

Today:

 Class Privilege is not allowed [documents relating to defence].

 Even content privilege is not allowed.
 Only public interest privilege is allowed.

India:

Sometimes Constitution prohibits the production of certain information before the court.

 Article 72(2): the advice given by the cabinet to the PM cannot be called upon in the
court of law. Only factum is privileged and not the other documents based on which
factum is proved is not required to be produced.
 Judicial review is a fundamental rights. Documents have to be produced by the
government.
 9th schedule: any law put in 9th is not outside the orbit of judicial review.

We are moving from state security to state transparency.

England:

 Official Secrets Act, 1911: this act lays down that if there is any document which
have been marked as confidential under this Act then it cannot be brought to the
public space.
 Crown Proceedings Act, 1947: the power to withhold information should not violate
rule of law which requires that the government can withhold information on the
ground that it would be injurious to public interest.

Under this scenario, reactions of the courts is as follow:

 Dunkan v. Cammel Laired and Co., 1942: The Duncan Doctrine – Blueprint of
negligently sunken submarine developed post-second world war would jeopardize the
public interest. Therefore, court did not allow for the production of the document.
o There shall be immunity for class documents.
o If it relates to foreign affairs.
o The claim of the government that it will violate public interest shall be
conclusive and the court need not interfere.
 Convey v. Rimmer, 1968: Police Officer – charged with theft – acquitted – class
privilege will not be allowed but content privilege could be allowed.
Lord Reid found it hard to apply the principle in Duncan v Cammell Laird and Co
Ltd, considering the nature of these documents are not 'injurious to public safety'
Interest of non-disclosure of documents should be balanced against the interest of
administering justice where those documents are required for a proper result to be
reached.
In this case, Dunkan case was overruled. They laid down ‘RIMMER DOCTRINE’:
o Class privilege – no/ Content privilege – yes
o Court will decide and not govt.
o Can view in chambers.
 Rowe v. Davis, 2000: it was decided by the ECtHR. Human Rights Act, 1998: can the
government be compelled to produce documents to prove claims of human rights
violations?
o It says that right of the victim to claim information from government is not
absolute – Limits by judge on two conditions: fairness of the trial and public
interest.
 o In this case, there was a secret agreement between the witness and the police
relating to certain evidence being given. There was violation of the human
rights. This information was kept secret and was not brought on record. When
it became known that there was this secret evidence, then the court held that
withholding such information violates the convention rights.
 Air Canada v. Secretary of State for Trade, 1983, house of lords: the cabinet
discussed the matter and took a decision that the London airport should be extended.
Power given to British Airport Authority to undertake this job. For this purpose, it can
arrange for the finances. Therefore, it exorbitantly increased the charges on various
airlines which were using that facility. Their landing charges were very much
increased. It was challenged for being unreasonable and arbitrary decision by 18
airlines. In order to prove their case, they wanted cabinet papers to be filed. Court
held if national security is involved, then cabinet paper cannot be compelled to be
produced before the court.

RIGHT OF THE PEOPLE TO GET THE INFORMATION:

England: RTI Act, 2000. However, there are certain exceptions:

A. Personal confidential information;

B. Information relating to any investigation;
C. Formulation of policy: policy documents cannot be disclosed because they do not given
any right to people
D. That information which inhabits free and frank discussion.
E. Documents relating to public security, public interest.

America: The theory of preferred rights i.e. free speech and expression and right to life and
personal liberty. Right to free speech includes right to information.

• US v. Reynolds, 1952: military plane crashed – widow could not compel as blueprints of
planes which the pilot was flying can jeopardise national security.
• New York times v. US, 1971: Government instituted a high powered committee to
investigate about the Vietnam war, its legitimacy and complete scenario. NY times
wanted to publish the report. State objected – SC did not allow the privilege and did not
pass an injunction. News published.
• Nixon Tapes Case (Watergate Scandal): Court held that no, fair trial demands that one
must produce those tapes.
• General Dynamic corporation v. US and Boeing Co. v US: 1bn$ contract – delay in
govt. providing tech could be proved by documents which could undermine the national
security. The case was dropped and the court allowed privilege.
• Khalid-al-masari v. US, 2006: German citizen arrested in Macedonia by CIA. Brought
him to Afghanistan and detained him. Tortured. Ultimately, they realize that he is not a
terrorist. Thereafter, released. Filed a case for compensation and wrongful arrest. He
wanted the court to compel certain documents to be produced. The court did not compel
the production keeping State’s interest in mind.

INDIA:

RTI 2005 + Fundamental right of public to get information from the government.

Certain exceptions where the information cannot be supplied:

 Sovereignty and integrity and security of state;

 The public safety and law and order;
 Investigation and detention of an offence;
 Private and personal information;
 Cabinet papers;
 Commercial secrets;
 Parliamentary papers;
 Papers relating to international relations;
 That info which violates any order of the court.

 ARTICLE 74(2): what advice the council of ministers give to the president shall be
confidential and shall not be disclosed and enquired into by court of law. So, any such advice
can be withheld. The Courts taking a very liberal view has made this class privilege in to a
content privilege and a public interest privilege.
 o Rameshwar Prasad v. Union of India: Prez rule in Bihar – Governor’s report
asked for - Only factum of advice is protected by not any other document
which relates to that factum of advice can be produced

EVIDENCE ACT: when a person can given in evidence about a matter which relates to the
affairs of the state:

• Section 103: no public officer shall be permitted to disclose information. Public officer is
ready to give evidence, but court shall not permit. Why? It is not his privilege, but the
privilege of the government. Unless they allow, public officer shall not be permitted to
disclose information. Cases:
 Derived from unpublished official record;
 If the information is such which will jeopardize public interest
 If it relates to the affairs of the state
• Section 124: no public officer shall be compelled - if he is willing to give, court can
accept. What cannot be compelled:
 If it is a confidential information given to him in official position and confidence
 If he thinks that public interest will be jeopardized.
• Section 162: If the court asks for production of a document from the government - must
be brought to the court in a sealed cover and the government may raise an objection
before this case that if the document is disclosed and it may affect India’s state interest.
Court will require secondary evidence to determine that how the disclose is jeopardizing
the state interest.

OFFICIAL SECRETS ACT, 1959: if a document is marked as confidential, then if anyone gives
any information relating to that document, he can be criminally prosecuted.

ATTITUDE OF THE JUDICIARY:

 State of Punjab v. Sodhi Sukhdev Singh, 1961: HC's inquiry against DJ - sent for
recommendations from PSC - considered by Cabinet which terminated him. Judge asked
for the production of the two documents. Govt. raised 74(2) - MoM of cabinet
confidential and so are the PSC documents. Not allowed.
 Indira Nehru Gandhi v raj Narain. 1975: He asked the court to compel the Police to
bring blue books. The Court said that if we balance the public interest against private
interest, then the public interest would not be affected if the report is not brought.
 Anil Yadav v. State of Bihar, 1981: also known as Bhagalpur blinding case: the
government instituted a CID enquiry report to uncover the information. When the case
was filed in the SC, the person wanted to ask the court to compel the government to
produce CID report. Government claimed that it will jeopardize public interest.
Disclosed.
 S P Gupta v. Union of India, 1981: the transfer and non-extension of additional judges
Delhi High Court. Some correspondence took place between the government and the
chief justice of the high court. Petitioner asked the court to compel the government to
produce the correspondence. Court: bring the document in the court so that court can
study the evidence in camera.
 R K Jain v Union of India, 1993: the government appointed the President of Central
Excise Gold Appellate Tribunal. This was challenged but objected under 74(2). After in-
camera inspecting, the court concluded that it jeopardized public interest.
o This case stands for the proposition that class privilege is not allowed even under
Article 74(2) and privilege shall be allowed only on one ground, i.e. public
interest.
o Claim of the government is not conclusive. Court is the final authority on public
interest because the court is the final protector of the liberty of the people and the
final arbiter of the disputes.
 State of Bihar v. Kripalu Shankar, 1987: Kirpalu wanted certain government files to be
produced. They were produced. In those files, there were many comments by the
government servant which constituted contempt of court. Kirpalu Shankar wanted to file
contempt petition against the person who had written the comments because now the
document is in public. The Court said that if a document has been compelled by the
court in a judicial proceedings, then it cannot be used for any collateral purposes.
This is the implied prohibition.

PRIVILEGE TO WITH HOLD DOCUMENTS IN CR. PROCEEDINGS

Matrix Churchill Case- 1990- Vietnam war was going on the govt. imposed a ban on the
companies that they cannot sell to Iraq any war material which can be used in prosecution of
the war- the violation of this law shall entail Cr. prosecution- A co. was prosecuted on the
ground that it was selling to Iraq materials which could be double used- may/may not be used
in war- Co. contention is that the act done was in the notice of the govt. and the govt.
encouraged us- to prove this the company wanted the court to compel the govt. certain docs.
Which were the correspondence b/w the co. and govt. and the minutes of the meeting- the
govt. took the privilege plea- the court said that fair trial is the Suprema Lex of PI. The court
compelled for the correspondence b/w minister and co., however w.r.t to correspondence b/w
ministers and the cabinet, the court examined the docs. in camera and held that they shouldn’t
be brought on record. Case had to be dropped.

OTHER PRIVILEGES

Rule 5B, Order 27, CPC- this provides and castes a duty on the court, that if in any civil
case if the govt. is involved, it shall be the duty of the court to assist in arriving at a
settlement. But if there are cases b/w individuals, no resp. of the govt.

Rule 8A, order 27, CPC- court cannot demand security from the state.

Oder 27, CPC- in any case, if any substantial question of law arises, it is the duty of the
court to give notice to AG.

Section 82, CPC - : where the decree has been passed against the government, it shall not be
executed immediately unless three months have been passed and the decree remains
unsatisfied.

Section 80 CPC- Notice.

 SUBJECTIVELY WORDED ADMINISTRATIVE POWERS

- Undefined powers of the administration.

- Rule free powers of the administration.
- Administrative discretionary power- these are in such high visibility area,
- abuse of discretionary power is the sole reason for corruption, maladministration and
lack of development of the country.
- Discretionary powers are the most misused power, and their misuse push a country to
a failed state.

What is this power? Dictionary meaning is the freedom to act at one’s own pleasure. So if
such power is delegated to someone to exercise his discretion, this is a case.

ADMN. POWERS ARE EITHER

 duty (only one course and no options) or

 discretion (multiple options are available)

In Admn. sense, discretion means choosing from various available alternatives, but w/o any
reference to any pre-laid down standard.

The equation of corruption is M (monopoly) + D - A = C.

Equation of corruption is monopoly over goods, services and power + discretion –

accountability, it leads to corruption.

Characteristics of discretion:

1. It is a rule free area. There are no rules and regulations. There is no rule for
controlling choices. No objective pre-laid down standards. Ascertainments of facts on
the basis of which rules have to be laid down is also left with the administrators.
2. Sometimes discretion has to be exercised post ascertainment of certain facts. E.g.
ascertaining that assembly has become unlawful, then discretion as to how disperse it
3. Choice is subjective. Subjective does not mean that choice is on one’s will. Choice
should be reasonable and cannot be on used on the basis of caprice. The choice may
be exercised on the basis of policy, public interest, expediency but cannot be
exercised on personal reasons.
 4. Exercise of discretion is objectively controllable. The courts have developed certain
workable formulae according to which exercise of discretion could be controlled
5. There is nothing like unlimited discretion. It must be exercised on reasonable, fair and
justifiable grounds. It is not unlimited power and therefore, it can be controlled.

Why discretion is unavoidable?

1. It is a compulsive necessity of an intensive form of government. The functions cannot

be undertaken by the government unless a free space is left for the administrators to
take free decisions
2. Because law cannot provide for every eventuality. The generality of law falters before
the specifics of life. If one law is applied to everybody, then in some case it would not
do justice. Therefore, if law is required to do justice every time, then there should be
some process for individualization of justice. It can be done by giving discretion to
the administration.
3. For flexibility and experimentation.
4. Reliance on expertise. There are various areas of governmental activity which are
specialized. The law cannot take care of such specialization in every situation. E.g.
Atomic energy system. For efficient working, flexibility must be given the
commission for the proper management of the activity.

DANGERS INHERENT IN THE DISCRETION:

1. Being subjective, it may lead to misuse and corruption.

2. It violates the rule of law and makes the government the rule of man and not of law.
Rule of law means that government must act according to certain principles which
must be known, laid in advance. But when discretion is given, then that principle of
law absent from that particular area and government officer reigns supreme. It makes
a rule of law society a rule of man society.
3. Wide discretionary power is destructive of the human rights of the people. if wide
discretion is given, then, whole human rights can be made a nullity.

TYPES OF DISCRETION:

1. Express discretion: commission may grant or revoke any liquor license at its
discretion. Here, it is a case of express discretion.
 2. Implied discretion: the word discretion is not used in the law, but here law says that
one may take action as you think fit and proper.
3. Inherent discretion: admin authority has been given certain functions to carry out by
the law. To carry out those functions property, some discretion is considered to be
inherent.
4. Resultant discretion: where the law gives authority to the administrative officer and
the authority is waived, then, there is always a resultant discretion into it. For e.g. if
the law says that commission may inquire into any merger of companies if it affects
the substantial part of India.

HOW DISCRETION IS CONFERRED?

1. It can be conferred expressly.

2. Where the drafters of law, they use certain words while giving power to the
administrative authority. E.g. the law may say: appropriate action, action as you deem
fit and proper, you may act if in you opinion it is proper and expedient, advisable,
convenient, if the administrative officer is satisfied. Therefore, by using these words,
administrative discretion is conferred. No public power can be exercised without
some flexibility.

England:

Parliament can give any amount of discretion to the administrative authority.

 Courts have held it a juristic blasphemy, therefore cannot be given.

 ‘Principle of reasonableness’ has been developed by the Court.
 One cannot challenge the constitutionality of the discretion, but can challenge that
the power granted is not being exercised reasonably. Reasonable exercise of power is
always implied.
o Padfield v. minister of agriculture: If any complaint has been made against
the price fixing authority, law provides that minister can refer the complaint
to the appellate authority. He may or may not refer. Minister wrote on the file
that I will not forward this complaint to the appellate authority because it will
put the minister in a difficult political situation. The court held that the
exercise of discretion is unreasonable. Awkward political situation is an
unreasonable reason.
 o R v. Metropolitan Police commissioner, ex parte Blackburn: Metropolitan
Police Act -police was not putting any watch over emerging gambling houses.
When police was asked to put a watch, it said that it is our discretion where to
put a watch and where not. The court held that when the discretion is given, it
is not absolute in the sense that nothing can be done to enforce reasonableness
and fairness. House of Lords compelled the metropolitan police commissioner
to put a watch on gambling house. When they said that there is shortage of
police personnel, the court said that here also your discretion here is also not
absolute. People should not suffer due to department’s problems.

USA:

 written constitution based on separation of powers.

 Bill of Rights introduced in 1791.
 Due process clauses in the constitution.
 Administrative Procedure Code: Section 10: review court shall hold unlawful and set
aside any administrative action if it is unreasonable, arbitrary, capricious and there is
an abuse of discretion because it has not been exercised according to the law.
 Citizen For The Protection Of Overtan Park v. Wolpe, 1970: discretion to the admin
authority regarding management of the park. Held: in America, there is nothing like
absolute discretion. All discretion is subject to judicial review and should be
exercised in a reasonable manner.

INDIA:

Write about how constitution gives powers but they’re still going to JR.

When the courts review discretion, they do not review the factum of the discretion. They
review the process of discretion.

 Unless there is a violation of the human rights of the people, restrain themselves from
interfering with the administrative discretion as a matter of policy.
 In certain situation, when in exercise of discretion, administrative authority has made
a wrong choice, if it is reasonable, fair in public interest, the court will restrain itself
from interference.
o Air India v. Coachin Inernational Airport Authority, 1998: tenders invited
for handling ground services at the airport. Lowest tender was not accepted.
 However, the authority negotiated with the Air India and decided to give
them the contract because they thought that it would be best in the public
interest. No matter, the exercise of discretion is technically wrong, but even
then the court said that it is a matter of discretion, the court will not interfere
if the question of public interest looms large.

HOW THE COURT REVIEW THE ADMINISTRATIVE DISCRETION? At two levels:

i. at the level of delegation of discretion.

ii. at the level of exercise of the discretion.

First Level of delegation of discretion: The delegation of discretion should not violate the
express limits of the constitution

 Dwarka Das case: power to the coal commissioner to grant or revoke license to any
person. Held as excessive delegation. There was no:
o policy of the law
o enacted the policy into a binding rule of conduct,

If not done, it will be considered as unreasonable delegation of discretion.

 R R Verma v. Union of India, 1980: All India Services (Conditions of Services)

Residuary Matter Rules. – If the government thinks that any rule regulating the all
India service Act causes undue hardship in a particular case, then it may relax the
rule in a manner that it considers necessary for dealing with a case in a just or
equitable manner. This was challenged on the ground that this discretion has been an
excessive delegation because no policy has been laid down, no guidelines have been
laid down. Held: NO, policy and guidelines have been laid down: Undue hardship
and just and equitable manner. These phrases are sufficient in order to control the
exercise of discretion by the government.
 Delhi Administration v V C Shukla, 1980: Special Court Act: if there is a prima
facie case of commission of an offence by a person holding high political office may
refer that case to the special court. This delegation of discretion was challenged in the
court of law on the ground that wide discretion was given. Held: policy is laid down
in the preamble only: dealing with corruption in public life, thus, it is not considered
to be the wide and excessive delegation
Second level of the discretion: at the level of exercise of the discretion:

The grounds of challenging discretion of

admin authorities for JR
1. non-exercise of discretion. If the law has given certain discretion that you may or
may not take the decision. All the public power are the power of trust and therefore,
must be exercised in public interest. He cannot say that it is his power, he may or may
not exercise it.
 Hirdaya Narayan v. Income Tax officer: section 35 of the Income tax act lays down
that income tax officer either suo moto or on an application may ratify a mistake in
the assessment. He cannot claim that it is his power and he would not exercise it.
 IAS – husband dies- small died- application to transfer to home cadre – government:
have not changed the cadre anytime so will not use our discretion – court held that
discretion is given as a trust and you should exercise it in public interest.

2. sub-delegated which is not authorized by the law. If the law has given the discretion
to one, only he can exercise it. He cannot sub-delegate it without authorization. If done, it
shall be considered as no valid.
 Sahani Mills v. ESI (1994)

Under this Act the industry as a member of ESI they have to deposit monthly contribution
towards the insurance - if an industry fails to do so, the director general of the corp. shall
have the power that it may recover the amount of contribution and also the damages.

The director general made a rule and transferred this power to deputy general manager. Such
total delegation isn’t allowed.

3. Wrongly exercised
4. Where the jurisdiction has been exercised on facts which were never existing on
record: The discretion has been exercised w/o any evidence
M.A. Rashid v. state of Kerala 1974 – quire case.
5. Exercise is discriminatory or violates the provisions of the constitution
R.D. Shetty v. International Airports Authority, 1979 – art 14 violated.

6. Where the exercise of discretion gratuitously interferes with the common law
rights of the people
Street Singing cases.

7. Where the exercise of discretion has been exceeded beyond the limits of law
 e.g. admin authority can grant loan to a person but not more than 1 lac rupees. If
in exercise of this discretion, they grant loan for over 1 lac ₹ - they violated the
limit set by law.
 e.g. Director of education, as per law, on complaint and after enquiry can discmiss
any govt. school teacher – the court said you have crossed the limit if you did it
without any reason – you can do anything if that exercise of discretion is collateral
to the main exercise of discretion.
 e.g. Municipal corporation has been given power to regulate the traffic on roads in
any manner. MC prescribed routes but they also laid down rules as to where the
buses will halt. Challenged – power to prescribing bus stands. Not accepted.

8. Irrelevant grounds for exercise not warranted by law.

Law has laid down grounds – you can exercise your discretion only on those
particular grounds.
 RML v. State of Bihar 1966 - Preventive Detention Law – passed by the govt.
This law says that you can preventively detain a person only if there is a violation
of public order. You can detain that person. Ram Manohar Lohiya says detained
not on the ground of public order but on the ground of law and order – the two are
different.
 Law and Order
 Public Order
 Security of the State
If a person has committed murder in an area – law & order; with a scheme – public order;
challenge govt – security of state. [Justice Hidaytullah]

 Hukam Chand Shyam Lal v. Union Of India 1976

The appellants' telephones were disconnected and taken temporary possession of by the
Superintendent of Police, North District and the General Manager, Telephones respectively
on various dates acting under the instructions of the Administrator, Delhi, who was
personally satisfied that illegal forward trading (satta) in agricultural commodities was being
practised on a large scale by them through their telephones. can only use for the purpose. not
collateral.

 The Barium Chemicals Ltd. v. The Company Law Board

In the following situations, an inquiry can be instituted in the affairs of the company:

 intention on part of the management to defraud creditors

 if management is guilty of fraud and misconduct
 when the management is withholding important info from shareholders.

CLB instituted the same on the ground that the future planning of the company is
inadequate/faulty. Court said irrelevant.

9. While exercising discretion – no factor will be left out of consideration

 Rampur Distilleries v. Company Law Board 1969

The CLB was given power that you can grant a license or refuse it to a manager – taking into
consideration his past and present conduct. In present case – Dalmias applied for managing
agency for Rampur Distilleries but refused due to a huge corruption case pending against
them. Vivian Bose Committee gave a very damaging report against the Dalmias. CLB took
this report into consideration.

When mixed questions of fact and law are involved means both relevant and irrelevant
factors are considered: Shibban Lal Saksena v. The State Of Uttar Pradesh 1954

Preventive detention – warranted by law. to what extent is he a danger – your own

assessment – subjectivity. The court will approve the decision if it is objective in nature and
you’ve taken into consideration certain factors which are relevant and irrelevant.
10. Where exercise of discretion is not bonafide.
 G Sadananda v. State of Kerala – preventive detention law used to detain a
wholesale trader who had problems with the relative of the minister. Not bona
fide. Released.
11. MISSED.
12. Wednesburry Principle of Reasonableness.
13. Exercise of discretion must not be under dictation: one has to use discretion
according to his own thinking.
 Discretion is given to someone because law believes in the intelligence of such
person. One cannot exercise it on dictation by another.
 Deputy Commission was given the power to decide the levy on papers. He issued
a notification that excise tax shall be levied on the directions of the collector from
time to time. Held: the exercise of discretion is invalid because it has been
exercised under discretion.
 Purtapore Company v. Cane Commissioner, Bihar, 1969: Cane commissioner
was empowered to reserve agricultural area for each sugar company. Therefore,
in exercise of that power, he decided such particular areas. Thereafter, he changed
the area of one sugar mills and 99 villages were included in another area. This
was done at the behest of the CM. challenged. Argued that this is a decision of
the CM. Held: discretion cannot be exercised at the dictation of some other
person.
 However, discretion can be exercise at the direction of the court. e.g. The
Government was not giving permission for the prosecution of a person. Case
filed. The high Court directed the government to give permission. The SC held
that Court can direct to exercise discretion, however, dictation is something else
than advice. E.g. compulsorily retired. He applied for review. Government took
the opinion of the advocate general. Held: taking advice is different than
dictation.
14. The exercise of discretion should not be fettered or cramped by self imposed
rules but hedging of the discretion is necessary:
Fettering means that one cannot impose fetters on the exercise of discretion. mind
must be open. The total space of oscillation must be available for taking a decision. If
one tries to put certain fetters on that free space, then such exercise of discretion is
improper. Discretion may be fettered by four means:
 1. By delegation
2. By adoption of a policy which is very rigid/ over rigid.
3. By contract.
4. By equitable estoppel.
The law says that discretion shouldn’t be fettered.

i. Adopting an over rigid policy for the exercise of discretion

 Gell v. Taja Noora - Admin authority to give license to the horse driven carriages
in the city in the manner as you think fit and proper. Government made a rule that
we will issue license to only that carriage which is made of a particular design.
Rigid defeats discretion.
 Keshav Bhaskaran v. State of Kerala, 1961: Open school education system- no
matter whatever is the level of schooling if one thinks one is in a position to pass
high school they can directly appear. This raised a question that kids who were
not mature were passing the high school. The director of education was given the
discretion that in suitable cases he might issue a transfer certificate to a person
who is not 16. (reasoning was that some students were gifted). The director of
education made a rule for himself and notified that he will not use his discretion if
a person is below 13. Cannot disable self.
 Jeet singh v state of Punjab, 1979: law is that an inspector can be promoted as
DSP if he has put in at least six year of service in the police. Discretion is that if
the officer thinks that the person is suitable, then the limit of six years can be
relaxed. Police department makes a policy that only two years relaxation may be
allowed. Held: you have fettered your discretion and therefore, exercise of
discretion is not valid.
 Section 73, CrPC: anticipatory bail could be provided and the grounds were not
provided. Different judges were using different grounds. All was left to the
discretion. In an appeal, the High Court took cognizance of this problem of
multiplicity of criterions. High Court laid down guidelines for granting
anticipatory bail so that uniformity could be brought in. case to the SC. It held
that high court cannot fetter the discretion of other person otherwise the purpose
of discretion would be lost.
  Finance Ministry: issued a circular to all banks that if there is any punishment to
your officers by the vigilance commissioner, then every bank has to give such
punishment to the employees. The court held that it is fettering discretion.
ii. By Contract

Secretary PWD v. Adani Ginning Factory: government has agreed that it will supply the
electricity at a fixed rate for a long period. After some time, the rate changed. Company
filed a case against the government. Held: by entering into a contract, government cannot
disable itself from exercising its constitutional power.

iii. Equitable estoppel

 equity doctrine based on fairness
 a representation to another about the existence or non-existence of certain facts
and that person has acted on that representation and has changed his position to
his disadvantage, then you will not be allowed to go back on your words
 Indo afghan agencies v. UoI: the government issued a policy statement that
those person who will make exports to middle east countries will be issued import
license equal to their amount to middle east export. Indo-Afghan agencies made
export of cosmetics to middle east. They wanted government to issue them the
import license. Government denied because it is only a matter of policy.
Therefore, the court says that the government is bound by its promise.

WIDE DISCRETION MUST ALWAYS BE HEDGED BY A POLICY.

Y Srinivasan v. J Veeriah, 1992: the government had been given power to select dealers for
fair price shops. no criterion given for selection of dealer - Chances of misuse of discretion is
very wide. Court quashed the selection & said discretion must be hedged. Dealer must have
minimum qualification which should be laid down beforehand.

Rama Sugar Industries v. AP, 1974: government imposed tax on the purchase of sugar cane
by the factories. Power given to the government that in exercise of this discretion, you can
exempt any new factory for a period of three years. Govt. policy that exemption will be given
to only those sugar factories which are in co-operative sector - the decision 3:2 and the
majority held that it is hedging.
15. non application of mind
 Jaggan nath v. state of Orissa (1966) - Under the Preventive Detention Act, 8 situations
are there where a person can be preventively detained. In one case, the government issued
a preventive detention order and gave those particular eight grounds serially. Court held
that these are rubber stamp reasons as one has not applied his mind as to out of eight,
which would be applicable in the present case.

 Abdul Razaq v. Commissioner of Police (1989) - criminal-already in jail-police has an

apprehension that his bail shall be accepted- So, the government issued a preventive
detention order so that he could be arrested immediately after bail. Order says that this
person is a danger to public order, though he is jail, there is a likelihood that he shall be
released on bail. So for larger public interest, this Order is passed. Such an Order is
invalid because they did not care to know that his bail application is already rejected.
They did not exercise their mind with care and responsibility.

16. Violation of NJ
 AK Kripak v. UOI (1970) - The govt. had the discretion to appoint someone to
the post of conservator of forest- the process of selection was violative of PNJ-
candidate was member of selection board- the court says his exercise of
discretion is invalid.

17. Exercise shouldn’t be arbitrary

 Bharat heavy electrical v. M. Chandrashekhar (2005)- fraud by the BHEL
employee – good cultural activist so what?
 Roookie’s case- one can develop the river banks and whatever expenditure
incurred can be recovered from those who have house near the river- the whole
money was to be recovered from one residence in this case- the court held that it
is arbitrary. No justification can be found in the reasoning.
 MODES OF JUDICIAL REVIEW:

JR also emerges from

 145(3) of the Const.- it says that if there is any constitutional question which arises it
shall be decided by the SC by a bench of atleast 5 judges.
 143- any question referred by president to the SC that will be decided by the court.
 FR Chapter- says that if any law is passed which imposes unreasonable restriction on
exercise of FR- it shall be void.
 Article 32, 136, 226,227, 141, 142- complete justice- by interpreting the constitution.
 No matter JR is not specifically given but it emerges from schemes and various
provisions of the const.

How can one challenge the action of the administration?

 Constitutional mode of review
o Suo Motu Action of the Court
o Curative Petitions
o Review Petitions
o FR - SC
o Not FR - HC
 Non Constitutional Mode of JR
 Binding
o Civil Court can judge the reasonability of action - not
constitutionality - can grant specific relief, injunctions, damages,
declaratory actions
o admn. tribunals - part of executive and decide the cases
o Special Courts if created.
 Non-binding
o Review, but decisions are not binding.
o Statutory commissions- the HR commissions- they sometimes give
one the damages, interim damages, otherwise, their decisions are
not binding but advisory in nature.
 Informal mode of review – non binding but give public opinion.
o mass media- this helps a lot in correcting admn. action decisions.
 o Interest groups presentations – Union and associations.
o Civil society

GROUNDS OF JR

Lord Dipplock in the case of Council Of Civil Service Union V. Minister Of Civil
Services (1985)- very scientifically regrouped the various grounds to challenge the admn.
grounds:

1. Illegality;
Covers what is covered u/d doctrine of ultra vires:
o The admn. Authority lacks jurisdiction –
A. the authority isn’t properly constituted
B. there is an error of jurisdictional fact and law.
o If the law itself is unconstitutional- because it violates the provision of FR- then it is
a case of illegality.
o The preliminary essentials have been disregarded. EG- certain actions can be taken
with prior notice and if this isn’t given then this means that whatever decision is given
isn’t good.
o The authority exceeded its jurisdiction in terms of territory, persons, subject matter
or pecuniary limitations.
o Failure to exercise jurisdiction- if power is given, it must be exercised. This means
that:
o Where the authority has sub-delegated jurisdiction w/o the authority of law.
o Acting under dictation.
o Non- application of mind- 6 grounds of preventive detention.
o Declining to use jurisdiction
o Fettering of discretion.
o Abuse of jurisdiction- A. where the power has been exercised on irrelevant
considerations; B. leaving out a relevant considerations.
o If one is using his power for improper purpose- exercise of power is colorable-
action for improper purpose.
o Malafide purpose- there is enmity and because of this there is improper action taken.
2. Irrationality;
- irrationality is w/o any reason
- unreasonableness is w/o any valid reason.

Wednesbury Principle - 1948- lays that if the admn. action is so outrageous it defies of
any logic or any moral standard that no reasonable person on those facts and
circumstances can come to that particular conclusion - Lord Dipplock said that this is still
the test.

3. Procedural impropriety;
The required procedure- there is no laid down procedure- sometimes the civil procedure
is used, sometimes authorities are asked to use their own procedure, and if nothing is
there then they must follow the procedure laid down by the PNJ. If procedure isn’t
followed and PNJ are violated, then it is a case of procedural impropriety and the same
can be challenged in the court.

4. The fourth ground is proportionality.

In India and abroad, whenever there is some admn. action which violates the FR- then
there the doctrine of proportionality to check.
This principle of proportionality was taken up in US.
Common law and European law took help of principle of proportionality.
This doctrine originated in Persia and reached to Europe (civil law countries), and by
applying this they tried to introduce fairness and reasonableness into admn. Action.
i The purpose or the end one is trying to achieve by law/admn. action must be legal and
legitimate;
ii It must not violate any pr. Of the constitution and the law;
iii The means adopted to achieve those ends must be reasonable connected to the end-
eg- one is trying to achieve transparency and fairness, absence of corruption- the
means is Aadhar card- the end is corruption free society. Both must be reasonably
connected to each other.
iv Whether the means employed to achieve the object could have been achieved by less
burdensome means.
v Whether there is a proper balance b/w the means and the ends.
 ONE SYSTEM AND ONE SERVICE
France had two separate systems and two separate services. [Admin law sys + civil law sys]

India- two systems and two services- in India we have two systems (justice delivery system
[JDS]) one is admn. JDS, and second is Judicial JDS, no matter at the top (SC) they merge.
One can appeal to the SC arising out of either of these two. Here we are concerned about the
problem created by these two and this is why admn. JDS is not delivering justice.

UK
In England, after 2007 (b/f this, there were two systems and two services) there is one system
and one service.
- 19th Century: UK – Tribunal system was going on and Dicey was against them.

- After WW II, people against Administrative Tribunals especially in the wake of

CRICHEL DOWN AFFAIR.

- In 2003 a royal commission was established (SIR MATHEW LEGGETT COMMISSION

2003) to streamline the admn. justice delivery system, and to enforce independence,
impartiality, openness, transparency and speed in the JDS.

- The commission gave a report and on that basis the parliament passed the
‘TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007’ and by this particular act, they
created in England ‘ONE SYSTEM AND ONE SERVICE’- they brought the tribunal system
along with the court system (combined) though it remained separate, but, it remained
more close to the judiciary than to the executive. The problem of executive’s
influence was solved.

The provisions of this act provides for the establishment of two-tier tribunal system in
England-
The first tier consists of 7 chambers (7 dff. Courts) and they deal with:
1. Social entitlements;
2. Immigration and asylum;
3. Public health;
4. Education and social care;
5. War pensions and armed forces compensation;
6. Tax and general regulation;
7. Land, property and housing.

Most of the disputes w/ the govt. arise under these 7 heads.

Second tier/upper tribunals- 4 chambers:

1. Administrative appeals;
2. Special appeals in case of Immigration and asylum;
3. Tax matters;
4. Land.

Appeal from the first tier will go to the second tier tribunal but two things must be
there:
1. There must be a certificate from the first tier tribunal that it is a fit case for appeal, if
not there, no appeal;
2. Special leave (means SPECIAL leave) may be granted by the second tier with the
help of general judicial system.

By this process, the admn. Process is brought near to the judicial system.
With this we have a combination of both the judges.
 The judges of tier 1 are appointed by Judicial appointment commission (they
appoint the ordinary judges of the ordinary court and the admn. courts)
 the judges of the II tier are appointed by the Lord Chief Justice of the SC.

 In the same manner and on the same qualification as the judges of the HC or the
appeal court are appointed. By promotion, a judge of the admn. court can be
appointed a judge of HC or civil court of appeal, and vice versa. Same
independence, same impartiality, same remuneration, etc.

Appointment and working of the expert member is under question in England because
they say that per se, there is no need for an expert member.
The procedure of admn. courts is same as ordinary courts.
Therefore, they have combines tribunals with the courts. They have their specialized
character and deal with specialized govt. disputes.

INDIA
The SC has quashed the appointment of 4 very imp. Tribunals
i. National Tax Tribunal 2014,
ii. Intellectual Property Appellate Tribunal Board 2015
iii. National Company Law Tribunal
iv. NCL Appellate Tribunal later on.
Because of this difference what is expected in India is to merge the two systems and make
one.
In India, 3 types of Tribunals:
A. CONSTITUTIONAL U/A 323 A AND B (articles not for strengthening admn. justice but
for punishing the HC and the SC)
Parliament can establish same tribunal to deal with the service matters of the state and
centre and the SC jurisdiction was included rest were excluded. All the cases pending
in the HC (service) were t/f to the tribunal.
323B- state legislature and parliament can create the tribunals for various reforms-
land, tax, foreign exchange and exclude the jurisdiction of the HC. So in this manner
the tribunal system in India was established to supersede the ordinary JDS.
B. STATUTORY TRIBUNAL- u/d a statute, they can be established for the purpose which
cannot be given u/d 323 A and B.
C. DOMESTIC TRIBUNALS- where generally the professional bodies in order to decide
the disputes of their members, by their agreement, they establish and admn. body w/
adjudicatory power.
Eg- BCI with the consent of all the members may establish a body to decide upon the
dispute b/w lawyers.
Generally, clubs and societies have domestic tribunals.
Instead of cooperation there is rivalry b/w the judiciary and the tribunals and
therefore, neither the cases pending b/f the courts have declined nor people are
satisfied with the admn. Justice. The solution is that we must go along the system
which England developed in 2007- one system and one service.