KAMKUS COLLEGE OF LAW

LL.B III SEM

ADMINISTRATIVE LAW
Code (K-3003)
Unit –I

Detailed Questions Answers

Q. 1. Define Administrate law. Explain the reason for the evolution of the
administrative law. Discuss its nature and scope.
Or
Q. 1. Define Administrative Law.
Ans. Introduction

Administrative law Branch of public law

Concerned with

Procedures Rules Regulations

Governmental Agencies

Administrative Law has been characterized as the most outstanding legal development of the
20th century." It does not mean: however that the concept of administration was not in existence
in any country before the 20th century. It is as ancient as the administration itself. Today, the
administration is ubiquitous and impinges freely and deeply on every aspect of individual's life.
Therefore, administrative law has become a major area for study and research.'

In every country, there must be a perfect administrative machinery which helps to maintain law
and order in the society and also it is an instrument which facilitates the concept of welfare state
in the country. The emergence of social welfare concept has affected the democracies very
profoundly. It has led to State activism. The functions of modern State may broadly be places
into the following categories; the State as a protector, provider, entrepreneur, economic
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controller and arbiter. A State consist of 3 organs-legislative, judiciary and executive. While
increase in State activities has meant increased' work for all the organs, the largest extension in
depth and range of functions and powers has taken place at the level of executive-cum-
administrative organ. Administration is the all-pervading feature of life today.

Meaning and Definition

Administrative law is a progressive branch and it is not possible to confine the meaning of
administrative process in some words. Many scholars and jurists define the administrative law
with their different approaches.

Important Definitions of Administrative Law

Dicey Sir Ivor Jennings Wade and Philips K C Davis

According to Dicey has defined administrative law as denoting that portion of a nation's legal
system which determines: the legal status and liabilities of all the State officials, which defines
the rights and liabilities of all private individuals in their dealing with public officials and which
specifies the procedure by which those rights and liabilities are enforced.
According to Sir Ivor Jennings defines administrative law as the law relating to the
administration. It determines the organization, powers and the duties of administrative
authorities.
According to Wade and Philips defines administrative law as a branch of public law which is
concerned with the composition, powers, duties, rights and liabilities of the various organs of
government which are engaged in administration.
According to K C Davis, administrative law is the law concerning the powers and procedures of
administrative agencies, including especially the law governing judicial review of administrative
action.

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The unenviable diversity in definitions of the term 'administrative law' is also due to the fact that
every administrative law specialist tries to lay more emphasis on anyone particular aspect of the
whole administrative process which, according to his own evaluation, deserves singular
attention.
A satisfactory and a proper formulation to define the scope, content and ambit of administrative
law appears to be as follows- "Administrative law deals with the structure, power and functions
of the organs of administration; the limits of their power, the procedure and method in execution
of their power and functions; methods to control their powers including the legal remedies
available to the person aggrieved in case of infringement of his right. Principles of administrative
law emerge and develop whenever and wherever any person becomes the victim of arbitrary
exercise of public power. Therefore, it will not be incorrect to say that no one can specialize in
administrative law.
Evolution, Reasons for the Growth of Administrative
Administrative law is a by-product of intensive form of government. In the present scenario, the
role of government has changed in almost every country of the world. Today there is a demand
by the people that government must solve their problems rather than merely define their rights. It
is felt that the right of equality in the American Constitution will be a sterile right if the black is
the first to lose his job and the last to be re- employed. In the same manner the equality clause in
the Indian constitution would become meaningless, unless the government comes forward to
actively help the weaker sections of society to bring about equality in fact. This implies the
growth of administrative law and process.
The following factors are responsible for the rapid growth and development of administrative
law-
1. State has opted for the positive policy and as a welfare state has undertaken to perform
varied functions and to perform these functions properly, there is a need of wide
administrative functionaries with some powers, which is resulted into the growth of
Administrative law.
2. It is not possible to decide and settle all the matters in dispute by the judicial system. It
was already overburdened, and it was not possible to expect speedy disposal of even

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 very important matters, e.g. lookout, strikes etc. Therefore, industrial tribunals and
labour courts over established, which possessed the techniques and expertise to handle
these complex problems.
3. It is not possible that legislature laid down each and every detailed rule and previsions.
They were found to be inadequate and therefore, it was felt necessary to delegate some
powers to the administrative authorities.
4. There is a scope for experiments in the administrative process. The rules and regulations
can be made for a certain period. They can be altered or modified within a short period
according to the changing circumstances. Thus, legislature is rigid in character while
administrative process is flexible.
5. The administrative authorities can avoid technicalities. For instance, administrative
tribunals are not bound by the rules of evidence and procedure, and they can take a
practical view of the matter to decide complex problems.
6. Administrative authorities can take preventive measures and effective steps for
enforcement of the preventive measures which are not generally available through
regular courts of law.
Nature and Scope
Administrative Law as a law is limited to concerning powers and procedures of administrative
agencies. It is limited to the powers of adjudication or rule-making power of the authorities.
Thus, it is limited to:

• Establishment, organization and powers of various administrative bodies

• Delegated legislation - the Rule-making power of the authorities

• Judicial functions of administrative agencies such as tribunals

• Remedies available such as Writs, Injunction etc.

• Procedural guarantees such as the application of principles of Natural Justice

• Government liability in tort

• Public corporations

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Conclusion

Administrative law has acquired an immense accession of power and has come to discharge
functions which are varied and multifarious in scope, nature and ambit. In the words of Robson,
the hegemony of the executive is now an accomplished fact. The increase in administrative
functions has created a vast new complex of relation between the administration and the citizen.
There is not a moment of a person's existence when he is not in contact with the administration
in one way or the other.

In such a context, a study of administrative law become of great significance. A careful and
systemic study and development of administrative law becomes a desideratum as administrative
law is an instrument of control of the exercise of administrative powers.

Q.2. Explain the Doctrine of Separation of powers as embodied in the Indian

Constitution. Describe its position in India, UK and USA.
Or
Q. 2. Discuss Doctrine of Separation of Power as propounded by Montesquie. Is
this Doctrine applicable in India?
Ans. Introduction
“The Separation of Powers” is a doctrine that has exercised the minds of many peoples. Ancient
philosophers, political theories and political scientists, framers of constitutions, judges and
academic writers have all had cause to consider the doctrine through the centuries. This mainly
signifies the division of different powers in between various organs of the state; executive,
legislature and judiciary.
Meaning of separation of powers
The doctrine of separation of powers means that none of the government, i.e., the legislative,
executive and judicial should ever exercise the powers of the other. It means that the three
departments of government are to be separated and distinct. They are to be independent of one
another, and each can exercise only one type of authority, legislative, executive or judicial.
According to Wade and Philips, this doctrine of separation of powers means that the same
person cannot compose more than one of the three departments of the government. One
department should not control and interfere with the acts of the other two departments, and one
department should not discharge the functions of the other two departments.
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Montesquieu’s Theory
The name most associated with the doctrine of the separation of powers is that of Charles Louis
de Secondat, Baron Montesquieu.
In The Spirit of the Laws (1748), Montesquieu described the various forms of distribution
of political power among a legislature, an executive, and a judiciary.
Montesquieu's approach was to present and defend a form of government which was not
excessively centralized in all its powers to a single monarch or similar ruler, form of government
known then as "aristocracy". He based this model on the Constitution of the Roman
Republic and the British constitutional system. Montesquieu took the view that the Roman
Republic had powers separated so that no one could usurp complete power. In the British
constitutional system, Montesquieu discerned a separation of powers among the monarch,
Parliament, and the courts of law.
Montesquieu's view is that concentration of legislative, executive and judicial functions either in
one single person or a body of person’s results in abuse of authority and such an organisation
becomes tyrannical. He argued that the three organs of government should be so organized that
each should be entrusted to different persons and each should perform distinct functions within
the sphere of power assigned to it.
Doctrine of Separation of powers in practice
Separation of Power in U.S.A.
In USA "separation of powers" is the foundation stone of the constitution of America. Article 1
section 1 vests all legislative powers in the congress. Article 11 section 1 vests all executive
powers in the President of the United States. Article 111 section 1 vests all the judicial powers in
the Supreme Court. The constitution of America has not given overriding power of judicial
review to the Supreme Court. Supreme Court has no power to decide political questions, so that
the court may not interfere with the exercise of power of executive organ of the government.
However, American constitutional development has shown that in the face of the complexity of
modern governments, strict structural classification of the powers is not possible. The President
has veto power through which he can interfere with the exercise of powers by the Congress. He
can interfere with the functioning of the Supreme Court through the exercise of his power to
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appoint judges. Congress also interferes with the power of President through vote on budget,
approval of appointments by the senate and ratification of treaty. Congress also interferes with
the exercise of powers by the courts by passing procedural laws, creating special courts and by
appointing judges. In its turn, the judiciary interferes with the powers of the congress and the
President through the exercise of its power of judicial review.
• The principle was categorically adopted in the making of the Constitution of the United
States of America. There, the executive power is vested in the president, the legislative
power in congress and the judicial power in the Supreme Court and the courts
subordinates thereto.
• The American Constitution provides for a system of ‘check and balances’.
• Panama Refining Company vs. Ryan (1935) 293 U.S. 388.
Separation of Power in England
• As a matter of fact at no point of time this doctrine was accepted in its strict sense in
England.
• The theory of integration of powers has been adopted in England.
• In England, the first formulation of the theory of 'separation of power is negated by the
concept of 'parliamentary executive' that the same person should not form part of more
than one of the three organs of the govt. For instance, the king, though an executive head,
is also an integral part of the legislature and all his ministers are also members of one or
other of the house of parliament. As regards the second formulation, it is clear that the
House of Commons ultimately controls the executive. The judiciary is independent but
the judges of the superior courts can be removed on an address from both Houses of
Parliament. As to the exercise by one organ of the functions of the other organs, no
separation exists in England.
Separation of Power in India
• There are no separate provisions regarding the Doctrine of Separation of Powers has been
given in our Constitution. But there are some directive principles are given in the
constitution as Article-50 of our Constitution is separating the judiciary from executive

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 as, “the state shall take steps to separate judiciary from the executive in the public
services of the state,” and except this there is no formal and dogmatic division of powers.
• In India, the executive powers are vested with the President, the legislative powers with
the Parliament and the judicial powers with the judiciary the Supreme Court, the High
Courts and Subordinate Courts.
• In India, not only functional overlapping is there but also the personal overlapping is
prevailing. The constitution has invested the constitutional courts with the power to
invalidate laws made by Parliament and State legislature transgressing constitutional
limitations. Legislature can re-enact the law with certain amendments in that law. This
new law or the amended law so made can be challenged on other grounds again but not
on the ground that it seeks to in effectuate or circumvent the decision of the court.

1. Judiciary
Under Article-142 and Article-145 of our constitution, the SC has the power to declare
void the laws passed by legislature and actions taken by the executive if they violate any
provision of the constitution or the law passed by the legislature in case of executive
actions. Even the power to amend the constitution by Parliament is subject to the scrutiny
of the Court. The Court can declare any amendment void if it changes the basic structure
of the constitution. In many cases courts have issued directions for the Parliament to
make policies.
2. Executive
The President of India who is the supreme executive authority in India exercise law
making power in the form of ordinance making power under Article-123, also the
Judicial powers under Article-103(1) and Article-217(3), he has the consulting power to
the SC of India under Article-143 and also the pardoning power in Article-72 of the
Constitution. The executive also affecting functioning of the judiciary by making
appointments to the office of Chief Justice of India and other judges.
3. Legislature
The Council of Minister is selected from the legislature and this Council is responsible

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 for the legislature. The legislature exercising judicial powers in cases of breach of its
privileges, impeachment of the President under Article-61 and removal of judges. The
legislative body has the punitive powers under Article-105(3).
• In words of Gledhill, “constitution of India has not ceremoniously wedded with Doctrine
of Separation of Powers, however, it is whenever possible followed the doctrine of
separation of powers.”
• In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, Chief Justice also
observed that in the Indian Constitution there is separation of powers in a broad sense
only.
• The Supreme Court in Ram Jawaya Kapur Vs State of Punjab, held;
"Indian Constitution has not indeed recognized the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the 'government have been
sufficiently differentiated. "
Conclusion
In conclusion, "Doctrine of separation of powers" in today's context of liberalization
privatization and globalization cannot be interpreted to mean either 'separation of powers' or
'check and balance' or 'principle of restraint' but 'community powers' exercised in the spirit of
cooperation by various organs of the State in the best interest of the people.
Q. 3. ‘The Rule of Law’ permeates the entire fabrics of Indian Constitution
and deep and forms of its basic feature. In the light of this statement
discuss the contents and importance of the Rul of Law in the study of
administrative law.
Or
Q. 3. What do you understand by ‘Rule of Law’? Discuss its importance in
India.
Or
Q. 3. What do you understand by Rule of Law? How and to what extent has
concept been incorporated in India?
Ans. Introduction

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The term "Rule of law" is derived from the French phrase la principle de legalite (the principles
of legality) which refers to the government based on the principles of law and not of men. In this
sense the concept of la principle de legalite was opposed to arbitrary powers.

Rule of the law is one of the basic principles of the common law in England. This doctrine is
accepted in the constitution of U.S.A. and also in the constitution of India. Sir Edward Koke
was the originator of this concept and Dicey developed this theory in his book "The Law and
the Constitution" published in the year 1885.
Meaning of Rule of Law
The concept of Rule of Law is not capable of any exact definition. This, however, does not mean
that there is no agreement on the basic values which it represents. The term Rule of law can be
used in two senses:
(i) formalistic sense; and
(ii) Ideological sense.
If used in formalistic sense, it refers to organized power as opposed to a rule by one man, and if
used in an ideological sense, it refers to the regulation of the relationship of the individual and
the state, and in this sense it becomes a concept of varied interest and content. Every legislative,
executive and judicial exercise of power must, therefore, depend on the ideals and values
represented by Rule of Law for its validity. Consequently, it is Rule of Law which defines law
rather than the law defining the Rule of Law.
According to Dicey, the rule of law is one of the fundamental principles of English legal
system. He attributed the following three meanings of the said doctrine:
i) Supremacy of Law: Dicey states that rule of law means the absolute supremacy or
predominance of regular law as opposed to the wide discretionary power. A man may be
punished for a breach of law, but can be punished for nothing else. In the words of
Dicey, wherever there is a discretion, there is a room for arbitrariness., As Wade says,
"The rule of law requires that the Government should be subject to the law, rather than
the law subject to the Government."

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 ii) Equality before Law: Dicey states that there must be an equality before law or equal
Subjection of all classes to the ordinary law of the land administered by the ordinary
courts of law. He criticized the French Legal System of droit administrative in which
there were separate administrative tribunals for deciding cases between the State and
citizens. According to Dicey, exemption of the civil servants from the jurisdiction of the
ordinary courts of law and providing them with the special tribunals was the negation of
equality. In the words of Lord Denning- Our English Law does not allow to shelter
behind a droit administrative."
iii) Predominance of Legal Spirit: Dicey emphasised the role of the courts of law as
guarantors of liberty and suggested that the rights would be secured more adequately if
they are enforceable in the courts of law than by mere declaration of those rights.
In England, the doctrine of the rule of law was applied in concrete cases. According to Wade, if
a man is wrongfully arrested by the Police, he can file a suit for damages against them as if the
police were private individuals. In a famous case of Entick V. Carrington, a publisher's house
and papers were ransacked by the king's messengers sent by the Secretary of State.
MODERN CONCEPT OF THE RULE OF LAW

• The doctrine of rule of law expounded by Dicey as never fully accepted in

England even in his days. He failed to distinguish arbitrary power from
discretionary power.

• As Mathew, J. stated – “If it is contrary to the rule of law that discretionary

authority should be given to Government departments or public authorities, then
there is no rule of law in any modern state.

• In the present context, Dicey's theory of rule of law cannot be accepted in its
totality. Davis gives seven principal meanings of term Rule of Law-

1. Law and order

2. Fixer rules

3. Elimination of discretion

4. Due process of law or fairness

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 5. Observance of the principles of the natural justice

6. Preference for judges and ordinary courts of law to executive authorities

and administrative tribunals

7. Judicial review of the administrative functions.

Rule of Law under Indian law

The doctrine of rule of law is embodied in the constitution of India, and is treated as the basic
structure of the constitution.

Every organ of the administration is regulated by the rule of law. The Indian Constitution
embodies the modern concept of the rule of law. The concept of the rule of law exists in this
country by virtue of the following features:

1. Supremacy of the Constitution

2. Constitutional requirement of equality

3. Constitutional guarantee and judicial enforcement of rights

4. Rule of law as a legal Concept

5. Rule of law as a feature of basic structure

6. Elimination of arbitrariness and not of discretion

7. Compliance with the requirement of law

8. Fairness in action

9. Public interest in security of social welfare

10. National policy of reservation for Backward Classes and constitutional viability of
creamy-layer

11. Pervasiveness of the concept of rule of law

Importance of Rule of Law

1. It reverses the tyranny or anarchy.

2. It puts legal barriers to governmental arbitrariness.

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3. It provides safe guards for the protection of individuals.

4. It echoes the Magna Carta’s saying, “No free man shall be taken or imprisoned or diseased or
outlawed or exiled nor will we go or send for him, except by the lawful judgment of his peers or
by the law of the land.

5. Rules of law are rooted in conventions and customs of the country.

6. It gives freedom to the judiciary to control the executive who exceeds their jurisdiction.

7. Public welfare should be the dominant consideration.

Criticisms
Dicey explained the concept Rule of Law in 1885. Many changes have taken place since then.
So, it is in different shapes due to the following conditions:

1. Certain privileges are granted to the officials in UK through enacting the Public Authorities
Protection Act.

2. With the development of Welfare State concept, the role of state had expanded. It gave power
of adjudication to the administrative agencies, who sometimes decide cases.

3. In emergency, Fundamental rights are suspended by the executive.

Conclusion
Thus, it appears that the doctrine of rule of law is embodied in the constitution of India, and is
treated as the basic structure of the constitution.

Short Answers Questions Answers

Q.1. Discuss the relation between Constitutional Law and Administrative Law.

Ans. Introduction
Earlier, there was no difference between administrative law and constitutional law. Therefore,
Keith observed- "It is logically impossible to distinguish administrative from constitutional law
and all attempts to do so are artificial". However, according to Holland, the constitutional law
describes them in motion. Therefore, according to this view, the structure of the legislature and

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the executive comes within the purview of the constitutional law but their functions come within
the purview of administrative law.
Relation between Constitutional Law and Administrative Law
According to Sir Ivor Jennings, administrative law deals with the organization, functions, powers
and duties of administrative authorities while constitutional law deals with the general principles
relating to the powers and organization of the various organs of the State and their mutual
relationship and relationship of these organs with the individuals.
It can be said that constitutional law is concerned with the rights, and administrative law lays
emphasis on public needs. However, the dividing line between constitutional law and the
administrative law is matter of convenience because every student of administrative law has to
study some constitutional law.

In the countries which have written constitution like India, the difference between constitutional
law and Administrative law is not a problem. In such countries the source of constitutional law is
the constitution while the source of administrative law may be statutes, statutory instruments,
precedents and customs; though, at times, disciplines of constitutional law and administrative
law may overlap.
In India, in the watershed one can include the whole control mechanism provided in the
constitution for the control of administrative authorities, i.e. Articles 32, 136, 226, 227, 300 and
311. It may also include the study of those administrative agencies which are provided for by the
constitution itself, i.e. Interstate Council, Article 263, Finance Commission, Article 280;
Interstate Water Dispute Authority, Article 262; Public Service Commissions, Article 315 and
Election Commission, Article 324. It may be further include the study of constitutional
limitations on delegation of powers to the administrative authorities and also those provisions of
the constitution which place fetters on administrative action i.e. fundamental rights.
Q.2. Explain the concept of ‘Droit Administrative’.

Ans. Introduction
Droit Administration is a unique characteristic of the administrative setup of France.

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According to British Jurist Albert Venn Dicey, the Droit Administrative system is based on the
following of two ordinary principles, namely:
1. The government and its every servant possesses special rights, privileges and prerogative
as against private citizens.
2. Such rights and privileges, etc., are determined on the principles different from the
consideration that fixes the legal rights and duties of the citizens.
Legendary French military leader Napoléon Bonaparte was the founder of Droit
Administration. He for the first time established ‘Conseil d'État’ which means the Council of
State.

Principles of Droit Administration

Eminent French scholar Jean Waline propounded following three principles of Droit
Administration:
1. The power of administration to act ‘Suo Motu’ (on its own) to impose directly on
subjects its decision to be obeyed as a duty.
2. The power of the administration to take decisions and execute them ‘Suo Motu’ (on its
own) and may be exercised only within the orbit of the law that protects individual
liabilities against administrative arbitrariness.
3. The existence of a specialized administrative jurisdiction.
In connection with these Principles, Jean Waline said, “One speaks of Administrative
Jurisdiction because these decisions relate to superior control of the Conseil d'État either through
appeal or by the recourse on its cessation.”
Drawback of Droit Administration
The limitations or drawbacks of Droit Administration:

1. British Jurist A. V. Dicey once expressed his views that there is no Rule of Law in France
due to the Droit Administration. He thought that the Droit Administration is in contrary
or opposition to the Rule of Law. But it appeared he was mistaken.

2. Although it is true that an individual in France while dealing with the state on any issue
does not stand on the same footing as that on which he stands in dealing with his

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 neighbor, moreover, the Government and his officials are independent and free from the
jurisdiction of ordinary courts.

3. Despite these drawbacks, the Droit Administration has been quite successful in subjective
Rule of law, in France.

Q.3. Discuss the Sources of Administrative Laws

Ans. Sources of Administrative Laws

Judicial decisions.

Constitution of India. Ordinances, administrative directions, notifications and circulars

Constitution of India

1. Constitution of India
The Constitution itself has provided for the creation of several administrative bodies and
agencies like U.P.S.C., election commission etc.
• Article 32 extends protection against infringement of any fundamental rights by
an administrative action.
• Similarly Art. 226 confers Power on the respective High Courts to Provide
appropriate remedies in cases of violation of fundamental rights or legal rights by
any administrative or quasi – judicial action.
• Article 136 confers special jurisdiction upon the Supreme Court to grant leave to
special appeal against any judicial or quasi – judicial order or decision.
• Act. 299 have fixed contractual liability of the Government.
• Act. 311 ensure protection to the Public servants against any illegal disciplinary
actions by their Superior authorities to forms the constitution has become the
foremost source of administrative law in India.
2. Acts and Statutes
Acts and statutes passed from time to time constitute the second most important source of
Administrative law. Several administrative bodies are created under such acts and
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 statutes. Which elaborately define their Powers and functions as well as the modes of
their control?
3. Ordinances, administrative directions, notifications and circulars
Ordinances are issued by the President and Governors under Act. 123 and 213 in cases of
exigencies which have the force of Law for a particular period, such ordinances generally give
rise to additional power to administrative authorities in order to meet urgent situations. In
modern administrative set-up that administrative directions and circulars are issued by higher
echelons of Administration to lower administrative authorities in order to regulate their day to
day functioning .in this process the government controls not only the exercise of their Powers
but confers some new Powers upon them.
4. Judicial decisions
The court by adopting a dynamic approach towards remedial action resorted to liberal interpreted
of those constitutional provisions which related to such remedies Liberalization of locus standi
rule, giving rise to Public interest litigations, and the expansion of the scope of judicial review.

Very Short Questions Answers

Q. 1. Lassiez Faire State

Ans. In the early 20th century the political gospel of laissez-faire was preached. The principles

on which the theory of laissez-faire works are as follows-

Minimum control of government

ƒ Free enterprise.

ƒ Law and order not counted as subjects of state.

ƒ Power said to be concentrated in the hands of the individual.

The theory of Laissez

• faire met with the following pitfalls

• Concentration of powers.
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 • Which led to human misery.

• Widening the inadvertent gap between the poor and the rich.

The consequence of giving the powers in the hands of the individuals and the minimum

government control proved catastrophic .By this the vital power was concentrated in the hands of

the rich people and the balance of economy got terribly shaken which only paved way to a

debacle that is the increasing economic disparity where the rich became richer and the poor

became poorer.

Q. 2. Doctrine of Social Welfare

Ans. Welfare State is a concept of government in which the state plays a key role in the

protection and promotion of economic and social well-being of its citizens. It is based on the

principles of equality of opportunity and equitable distribution of wealth. Under this system, the

welfare and well-being of its citizens is the responsibility of the state. Such a government is

involved in citizen’s lives at every level. Most of the modern democratic countries are 'welfare

states’.

Q. 3. Distinction between the constitutional Law and the Administrative Law.

Ans.

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 Constitutional Law Administrative Law

1. The constitutional law is genus. 1. The Administrative law is a species of the

The constitution of India, 1950 is the constitutional law.
mother of all laws of India. The
same situation is prevailing in all
most all the democratic countries.
2. The constitutional law deals with 2. It deals with those organs as in
various organs of the State. motion/function.
3. It deals with the structure of the
State. 3. It deals with the functions of the state.
4. It is the supreme and highest law in
the country. 4. It is subordinate to the constitutional laws.
5. It gives the guidelines with regard
to the general Principles relating to 5. It deals in details with the powers and
organization and Powers of organs functions of the administrative authorities.
of the State, and their relations
between the citizens and the
State, It touches almost all
branches of law in the country.

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 KAMKUS COLLEGE OF LAW
B.A.LL.B VIII SEM
ADMINISTRATIVE LAW
Code (BL-801)
Unit –II

Detailed Questions Answers

Q.1. Classification of administrative action into administrative, quasi-judicial
and quasi-legislative functions is compulsive. Explain.
Ans. Introduction
Administrative action is a comprehensive term and defies exact definition. In modern times the
administrative process is a by-product of intensive form of government and cuts across the
traditional classification of governmental powers and combines into one all the powers, which
were traditionally exercised by three different organs of the State.
Thus, speaking generally, an administrative action can be classified into three categories:
1. Rule-making action or quasi-legislative action.
2. Rule-decision action or quasi-judicial action.
3. Rule-application action or administrative action.
4. Ministerial action
The function of the legislature is to enact law, the executive is to administer the law and the
judiciary is to interpret the law and to declare what the law is. But in the present context it is not
possible that the functions of the executive can be confined exclusively to their administrative
character.
Need for such classification
To decide the nature of the functions performed by the executive authorities, it is very essential
and inevitable to classify the functions but there is not any rigid rule or guide line to decide the
nature of the function. Such classification plays an important role to determine the nature
because every specific function has its own procedural requirements and accordingly different
consequences flow from it, e.g. if the executive authority exercises a judicial or quasi-judicial
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function, it must follow the principles of natural justice and is amenable to the writ of certiorari
or prohibition, but if it is an administrative, legislative or quasi-legislative function, this is not so.
If the action of the executive authority is legislative in character, the requirement of publication,
laying on the table etc. should be complied with, but it is not necessary in the case of a pure
administrative action. Again, if the function is administrative, delegation is permissible, but if it
is judicial, it cannot be delegated. Unreasonableness can be a ground to challenge the
administrative action but a legislative function may not be held invalid on the same ground.
Therefore, it is necessary to determine what type of function the administrative authority
performs.
Quasi – Legislative
Legislature is the law-making organ of any State. This power is not expressly vested in the
legislature but the combined effect of Article 107 to 111 and 196 to 201 of Indian Constitution is
that the law-making power can be exercised for the Union by the Parliament and for the State by
the respective State legislature. When any administrative authority exercises the law-making
power delegated to it by the legislature, it is known as the rule-making action or quasi-legislative
action of administration.
Rulemaking action of the administration part takes all the characteristics which normal
legislative action possess. In certain cases, such action may be particularized, retroactive and
based on evidence. According to Justice Chinnappa Reddy, a legislative action has four
characteristics:
(i) Generality
(ii) Prospectively
(iii) Public Interest and
(iv) Rights and obligations flowing from it.
Though the rules of naturaljustice do not apply to legislative actions yet reasonableness and fair
play in action must be observed as Article 14 of the constitution equally applies to legislative
actions. And administrative rule-making action is controlled by Parliament and the Judiciary.
Quasi – Judicial

21
Today, both the decisions which affect the individual's interest come not from the court but from
administrative agencies exercising adjudicatory powers to provide quality and quanity of justice
to the individual which is required in a welfare State.
An authority is said to be exercising Quasi-Judicial Function when:
• it is empowered under a statute to do any act
• the act will affect the civil rights of a citizen
• whether the act is done in the context of resolving a dispute between two citizens, or
whether the dispute is between a citizen and the authority itself
• the authority is required to act judicially and in accordance with rules of natural justice.
Administrative decision making may be defined as a power to perform acts administrative in
character, but requiring incidentally some characteristics of judicial action. Therefore, it is said to
be a quasi-judicial action. Following administrative functions can be an example of
quasi-judicial functions:
1. Disciplinary proceedings against students.
2. Disciplinary proceedings against an employee for misconduct.
3. Confiscation of goods under the Sea Customs Act.
4. Cancellation, suspension, revocation or refusal to renew licence or permit by licensing
authority.
5. Determination of citizenship etc.
The Donoughmore Committee on Minister's Powers (1932) analysed the characteristics of a true
judicial decision and summed up the attributes, the presence or absence of which stamped a
decision as administrative decision-making or quasi-judicial action. The Committee was of the
view that a true-judicial decision presupposes a list between two or more parties and then
involves these requisites:
1. Presentation of case
2. Ascertainment of question of fact by means of evidence given by the parties.
3. Ascertainment of question· of law on the basis of submission of legal arguments.
4. A decision which disposes of the whole matter by applying the law to the facts.

22
 5. A quasi-judicial decision involves the first two determinants mayor may not
involve the third but never involves the fourth requisite.
Administrative decision making action is not requisite to follow the elaborate judicial procedure,
it is sufficient if, in the absence f any statutory requirement, the action is rendered by following
the minimum procedure of natural justice. In order to exercise the power to decide and determine
to the prejudice of a person, the duty to act judicially is implicit in the exercise of such power.
The foundation of applying natural justice in administrative actions had been laid down in the
dissent of Justice Subba Rao in Radheyshyam Whare v. State of M.P. and this dissent became
strikingly pronounced in A.K. Wraipat v. Union of India.
In this case Supreme Court held 'that though the action of making selection for government
services is administrative. Yet the Selection Committee is under a duty to act judicially. The
dividing line between an administrative power and quasi-judicial power is quite thin and is being
gradually obliterated. The Supreme Court clearly held in the case of Chandra Bhavan Boarding
and Lodging Bangalore v. State of Mysore that it is not necessary to clarify an action of
administrative authority as' quasi-judicial or administrative because administrative authority is
bound to follow the principles of natural justice in any case.
Administrative Action
In Jawaya v. State of Punjab, speaking for the Supreme Court, Mukherjee, C.J., observed: "It
may not. Be possible to frame an exhaustive definition of what executive function means and
implies. Ordinarily, the executive power connotes the residue of governmental functions that
remain after, legislative and judicial functions are taken away.”
Though the distinction between quasi-judicial and administrative action has become blurred, yet
it does not mean that there is no distinction between the two. The difference between two may
still be relevant in determining the measures of natural justice applicable in a given situation.
Thus, administrative functions are those functions which are neither legislative nor judicial in
character. Generally, the following ingredients are present in administrative functions-
1. An administrative order is generally based on governmental policy or expediency.
2. There is no legal obligation to adopt a judicial approach to questions to be decided, and
the decisions are usually subjective rather than objective.

23
 3. An administrative order is not bound by the rules of evidence and procedure unless
required specifically.
4. An administrative authority can take decision in exercise of a statutory power or even in
the absence of statutory provision provided such decision or act does not contravene
provisions of any law.
5. Administrative functions may be delegated or sub-delegated unless there is a specific bar
in the statute.
6. An administrative action may be held invalid on the ground of unreasonableness and the
writs of certiorari and prohibition are not always available against administrative
actions. Certain examples of administrative actions –
• Issuing direction to subordinate officers not having the force of law.
• Making a reference to a tribunal for adjudication under the industrial disputes act.
• Internment, internment and deportation.
• Fact-finding actions.
• Requisition, acquisition, allotment etc.
Ministerial Action
Ministerial action is that action of the administrative agency which is taken as a matter of duty
imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial action
involves the performance of a definite duty in respect of which there is no choice. Collection of
revenue may be one such ministerial action. Ministerial actions are exercised by taking active,
often coercive measures and administrative functions by making out policy and expediency with
unfettered discretion. When an administrative agency is acting ministerially it has no power to
consult its own wishes but when it is acting administratively its standards are subjective and it
follows its own wishes.

Q.3. “No one should be condemned unheard”. Discuss the principle with the
help of decided cases.
Ans. Introduction

24
Audi alteram partem means ‘hear the other side’, or ‘no man should be condemned unheared’
or ‘both the sides must be heard before passing any order.’
The principle of Audi Alteram Partem is the basic concept of the principle of natural justice.
This doctrine states the no one shall be condemned unheard. This ensures a fair hearing and fair
justice to both the parties. Under this doctrine, both the parties have the right to speak. No
decision can be declared without hearing both the parties. The aim of this principle is to give an
opportunity to both the parties to defend themselves.
Meaning of Audi Alteram Partem
The second fundamental principle of natural justice is audi alteram partem, i.e., no man should
be condemned unheard, or both the sides must be heard before passing any order. De Smith says,
‘ no proposition can be more clearly established than that a man cannot incur the loss of liberty
or property for an offence by a judicial proceeding until he has had a fair opportunity of
answering the case against him’. A party is not to suffer in person or in purse without an
opportunity of being heard’. This is the first principle of civilized jurisprudence and is accepted
by laws of men and god. In short, before an order is passed against any person, reasonable
opportunity of being heard must be given to him.
Elements
Notice Hearing

Notice
Before any action is taken, the affected party must be given a notice to show cause against the
proposed action and seek his explanation. It is a sine qua non of the right of fair hearing. Any
order passed without giving notice is against the principles of natural justice and is void ab initio.
Before taking any action, it is the right of the person to know the facts. Without knowing the
facts of the case, no one can defend himself.
The right to notice means the right of being known. The right to know the facts of the suit or case
happens at the start of any hearing. Therefore, notice is a must to start a hearing. A notice must
contain the time, place and date of hearing, jurisdiction under with the case is filed, the charges,
and proposed action against the person. All these things should be included in a notice to make it
25
proper and adequate. Whenever a statute makes it clear that a notice must be issued to the party
and if no compliance or failure to give notice occurs, this makes the act void. If it only contains
the charges but not the ground or time or date, then the notice must be held invalid and vague.
Non-issue of the notice or any defective service of the notice do not affect the jurisdiction of the
authority but violates the principle of natural justice.
In bagg case A.I.R. 1960 S.C. 1632, James Bagg, a Chief Burgess of Plymouth had been
disfranchised for unbecoming conduct in as much as it was alleged that he had told the Mayor, ‘
you are a cozening knave. I will make thy neck crack’ and by ‘turning the hinder part of his body
in an inhuman and uncivil manner’ towards the mayor, said, ‘come and kiss’ he was reinstated
by mandamus as no notice or hearing was given to him before passing the impugned order.
In a case of Punjab National Bank v All India Bank Employees Federation A.I.R. 1971 S.C.
389, the notice contained certain charges but the penalty was imposed on the charges other than
those mentioned in the notice. Thus, the charges on which the penalty was imposed were not
contained in the notice served on the person concerned. The notice was not proper and, therefore,
imposition of penalty was invalid. It is to be noted if the person concerned is aware of the case
against him and not prejudiced in preparing his defense effectively the requirement of notice will
not be insisted upon as a mere technical formalities and proceeding will not be vitiated merely on
the technical ground.
That the person concerned was not served notice before taking the action as in case of Keshav
Mills Co. Ltd. V. Union of India A.I.R. 1973 Punj. 263 33, The notice is required to be clear
and unambiguous. If it is ambiguous or vague, it will not be treated as reasonable and proper
notice. If the notice does not specify the action proposed to be taken, it is taken as vague and,
therefore, no proper as in case of Abdul Latif v. Commr.
The notice will also be vague if it does not specify the property proposed to be acquired as in
case of Tulsa Singh v. State of Haryana. As regards the detention under any law providing for
preventive, Clause (5) of Article 22 provides that in such condition the making the order for such
detention must, as soon as may be, communicate to the detenue the grounds on which the order
has been made and must give him the earliest opportunity of making a representation against the

26
order. The grounds communicated to the detenue must not be vague or insufficient or irrelevant,
vague or in adequate, the detenue is entitled to be released.
Hearing
The second ingredient of audi alteram partam (hear the other side) rule is the rule of hearing. If
the order is passed by the authority without providing the reasonable opportunity of being heard
to the person affected by it adversely will be invalid and must be set aside as in the cases of
Harbans Lal v. Commissioner, National Central Co-operative Bank v. Ajay Kumar and Fateh
Singh v. State of Rajasthan.
The reasonable opportunity of hearing which is also well known as 'fair hearing' is an important
ingredient of the audi alteram partem rule. This condition may be complied by the authority by
providing written or oral hearing which is the discretion of the authority, unless the statue under
which the action being taken by the authority provides otherwise.
Thus like U.S.A. and England, the Courts in India do not consider the right to oral or personal
hearing as part of the principle of Audi Alteram Partem unless the statue under which the action
is taken by the authority provides for the oral or personal hearing unless it is not indicated at
without oral or personal hearing the person cannot adequately present.
Personal or oral hearing is important when the context requires it was required in the case of
A.K. Gopalan v. State of Madras. It is the duty of the authority who will ensure that the affected
party may be given an opportunity of oral or personal hearing if the context requires otherwise.
However, the above rule of fair hearing requires that the affected party should be given an
opportunity to meet the case against him effectively and this may also be achieved by providing
opportunity to the affected person by making 'written representation' instead of oral or personal
hearing as was provided in the case of Union of India v. J.P. Mitter.
Evidence
Evidence is an important part which is to be brought properly before the Court in the presence of
both the parties and a judicial or quasijudicial authority must have to act on the evidence
produced as in the case of R v. Bodmin and not merely on any information which the authority
may receive otherwise as in the case of Collector of Central Excise v. Sanwarmal.

27
Ordinarily, no evidence personal or oral should be received at the back of other party and if any
such evidence is recorded, it is duty of the authority that such evidence must be made available
to the other party as in the case of Stafford v. Minister of Health and in another case of Hira
Nath v. Principal.
The principle is not confined to formal evidence but extends to any material including
information regarding previous conviction, upon which the Tribunal may act, without giving
opportunity to the affected party to rebut it. In case of Keshav Mill Co. v. Union of India the
Supreme Court was not ready to lay down an inflexible rule that it was not necessary to show the
report of enquiry committee to the affected person. The court made it clear that whether the
report of the enquiry committee should be furnished or not depends in every individual case on
merits of the case.
Cross Examination
The adjudicating authority in a fair hearing is not required only to disclose the person concerned
the evidence or material to be taken against him, but he should be provided an opportunity to
rebut the evidence or material. The important question before the authority is that the witness
should be cross-examined or not.
In another case of Kanungo & Co. v. Collector of Customs the business premises of a person
were searched and certain watches were confiscated by the authority under Sea Customs Act.
The said person was not allowed to cross-examine the persons who gave information to the
authority. There was no violation of the natural justice and the Court held that the principles of
natural justice do not require the authority to allow the person concerned the right to cross
examine the witnesses in the matters of seizure of goods under the Sea Customs Act. If the
person concerned is allowed the right to cross-examine, it is not necessary to follow the
procedure laid down in the Indian Evidence Act.
Legal Representation
An important question is whether right to be heard includes right to legal representation? Fairly
speaking, the representation through a lawyer in the administrative adjudication is not considered
as an indispensable part of the fair hearing. But, in certain situations if the right to legal
representation is denied, then it amounts to violation of natural justice.

28
Thus where the case involves question of law as in case of J.J. Mody v. State of Bombay and in
another case of Krishna Chandra v. Union of India, the denial of legal representation will
amount of violation of natural justice because in such conditions the party may not be able to
understand the question of law effectively and, therefore, he should be given an opportunity of
being heard fairly.
Exceptions to Audi Alteram Partem
The word exception in the context of natural justice is really a misnomer, but in the below
mentioned exclusionary cases, the rule of audi alteram partem is held inapplicable not by way of
an exception to “fair play in action”, but because nothing unfair can be inferred by not affording
an opportunity to present or meet a case. But such situations where nothing unfair can be inferred
by not affording a fair hearing must be few and exceptional in every civilized society.
Statutory Exclusion
Natural justice is implied by the Courts when the parent statute under which an action is being
taken by the Administration is silent as to its application. Omission to mention the right of
hearing in the statutory provision does not ipso facto exclude a hearing to the affected Maneka
Gandhi vs. Union of India, Karnataka Public Service Commission vs. B.M. Vijay Shankar,
Ram Krishna Verma vs. State of U.P.
A statute can exclude natural justice either expressly or by necessary implication. But such a
statute may be challenged under Art.14 so it should be justifiable. In Charan Lal Sahu vs UOI
(Bhopal Gas Disaster case) is a classical example of the application of this exception. In this
case the constitutional validity of the Bhopal Gas Disaster (Processing of Claims) Act, 1985,
which had authorized the Central Government to represent all the victims in matters of
compensation award, had been challenged on the ground that because the Central Government
owned 22 percent share in the Union Carbide Company and as such it was a joint tort feasor and
thus there was a conflict between the interests of the government and the victims. The court
negative the contention and observed that even if the argument was correct the doctrine of
necessity would be applicable to the situation because if the government did not represent the
whole class of gas victims no other sovereign body could so represent and thus the principles of
natural justice were no attracted.

29
Legislative Function
A ground on which hearing may be excluded is that the action of the Administrative in question
is legislative and not administrative in character. Usually, an order of general nature, and not
applying to one or a few specified persons, is regarded as legislative in nature. Legislative action,
plenary or subordinate, is not subject to the rules of natural justice because these rules lay down a
policy without reference to a particular individual. On the same logic, principles of natural
justice can also be excluded by a provision of the Constitution also. The Indian Constitution
excludes the principles of natural justice in Art. 22, 31(A), (B), (C) and 311(2) as a matter of
policy. Nevertheless, if the legislative exclusion is arbitrary, unreasonable and unfair, courts
may quash such a provision under Art.14 and 21 of the Constitution.
In Charan Lal Sahu vs. UOI, the constitutional validity of the Bhopal Gas Disaster (Processing
of Claims) Act, 1985 was involved. This legislation provide for details of how to determine
claims and pay them. The affected parties approached the SC and contended that no hearing was
provided to them and it was violative of Audi Alteram Partem. The SC held, “For legislation by
Parliament no principle of natural justice is attracted, provided such legislation is within the
competence of the Legislature. Emergency In India, it has been generally acknowledged that in
cases of extreme urgency, where interest of the public would be jeopardizes by the delay or
publicity involved in a hearing, a hearing before condemnation would not be required by natural
justice or in exceptional cases of emergency where prompt action, preventive or remedial, is
needed, the requirement of notice and hearing may be obviated. Therefore, if the right to be
heard will paralyze the process, law will exclude it. In Mohinder Singh Gill vs. CEC, whether
notice and right to be heard must been given or not was been laid down before the SC. In
Firozhpur Constituency Parliamentary Election counting was been going on where in some
segments counting were going on and in some it was over. One candidate was having a very
good lead but before the declaration the very purpose of surveillance and there is every
possibility of the ends of justice being defeated instead of being served.
Impracticable
Natural justice can be followed and applied when it is practicable to do so but in a situation when
it is impracticable to apply the principle of natural justice then it can be excluded.

30
In Bihar School Examination Board vs. Subhash Chandra, the Board conducted final tenth
standard examination. At a particular centre, where there were more than thousand students, it
was alleged to have mass copying. Even in evaluation, it was prima-facie found that there was
mass copying as most of the answers were same and they received same marks. For this reason,
the Board cancelled the exam without giving any opportunity of hearing and ordered for fresh
examination, whereby all students were directed to appear for the same. Many of the students
approached the Patna HC challenging it on the ground that before cancellation of exam, no
opportunity of hearing was been given to the students. The HC struck down the decision of the
Board in violation of Audi Alteram Partem. The Board unsatisfied with the decision of the Court
approached the SC. The SC rejected the HC judgment and held that in this situation, conducting
hearing is impossible as thousand notices have to be issued and everyone must be given an
opportunity of hearing, cross-examination, rebuttal, presenting evidences etc. which is not
practicable at all. So, the SC held that on the ground of impracticability, hearing can be excluded.
Academic Evaluation
Where nature of authority is purely administrative no right of hearing can be claimed. In
Jawaharlal Nehru University v. B.S. Narwal, B.S Narwal, a student of JNU was removed from
the rolls for unsatisfactory academic performances without being given any pre decisional
hearing. The Supreme Court held that the very nature of academic adjudication appears to
negative any right of an opportunity to be heard. Therefore, if the competent academic
authorities examine and asses the work of a student over a period of time and declare his work
unsatisfactory, the rules of natural justice may be excluded.
Inter –Disciplinary Action
In Inter- Disciplinary action like suspension etc. there is no requirement to follow the principle of
natural justice. In S.A Khan vs. State of Haryana, Mr. Khan an IPS Officer holding the post of
Deputy Inspector General of Haryana; Haryana Govt., was suspended by the Haryana
Government due to various complaints against him. Thus, he approached the Supreme Court on
the ground of violation of PNJ as he was not given an opportunity to be heard. The SC held that
the suspension being interim-disciplinary action, there is no requirement to afford hearing. It can
be ordered without affording an opportunity of hearing.

31
Conclusion
The principle of natural justice has evolved through civilization. It has not evolved from the
constitution but from mankind itself. Every person has the right to speak and be heard when
allegations are being put towards him or her. The Latin maxim, ‘Audi Alteram Partem’ is the
principle of natural justice where every person gets a chance of being heard. The meaning of the
maxim itself says no person shall be condemned unheard. Hence, no case or judgment can be
decided without listening to the point of another party. There are many cases where this principle
of natural justice is excluded, and no option is given to the party to speak. Natural justice means
that justice should be given to both the parties in a just, fair and reasonable manner. Before the
court, both the parties are equal and have an equal opportunity to represent them.

Short Answers Questions Answers

Q.1. Explain the Principle of Natural Justice.

Ans. Principle of Natural Justice

The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which means
principles of natural law, justice, equity, and good conscience. These principles did not originate
from any divine power, but are the outcome of the necessity of judicial thinking, as well as the
necessity to evolve the norms of fair play.
These are the principles which every disciplinary authority should follow while taking any
decision, which may adversely affect the rights of individuals. It is to be seen that rules of natural
justice are not codified anywhere; they are procedural in nature and their aim is to ensure
delivery of justice to the parties.
Adherence to rules of natural justice, as recognised by all civilised States, is of supreme
importance, when a quasi-judicial body embarks on determining disputes between the parties or
any administrative or disciplinary action is in question. Rules of natural justice serve as hedge
against any blatant discrimination against rights of individuals. These rules are intended to
prevent such authority from doing injustice. They seem to be recognised by Article 21 of the
Constitution of India in a way which says, “No person shall be deprived of his life or personal

32
liberty except according to the procedure established by law”. This is that procedure which is
held by the courts to be the rules of natural justice.
With the evolution of society, as well as legal jurisprudence, the concept of natural justice has
also undergone change. Rules of natural justice are not rules embodied in any statute. These rules
were part of the law and procedure during the British Raj also, and are being observed in India
since time immemorial. These rules have become a part and parcel of the law, as well as
procedure. These may be implied from the nature of the duty to be performed under a statute.
What particular rule of natural justice should be applied depends on the facts and circumstances
of each case. With the passage of time, the old distinction between a judicial act and an
administrative act has withered away. Orders of the disciplinary authority, which involve civil
consequence, must be consistent with the rules of natural justice, otherwise the orders are likely
to be set aside by the courts.
Over the years, two rules have evolved as representing the rules of natural justice in judicial,
quasi-judicial and administrative processes. The first rule is ‘nemo debet esse judex in propria
causa’, which means that no man shall be judge in his own cause. The second principle is ‘audi
alteram partem’, which means that no one should be condemned unheard.
It is of importance to note that proceedings before the civil court are governed by the Code of
Civil Procedure; criminal proceedings are governed by the Criminal Procedure Code, but in
respect of departmental enquiries, no detailed guidelines have been codified. So, in the absence
of any codified law, proceedings under departmental enquiries are mainly governed by the
principles of natural justice. However, principles of natural justice are subservient to statutory
provisions. They are not the rule of law that can override the codified laws of the land. In the
case of A.K. Kraipak Vs. Union of India (AIR 1970 SC 150), the Supreme Court said that the
aim of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made, in other words, they
do not supplant law, but supplement it.
The nature of the rules of natural justice is flexible. They tend to change with the exigencies of
time, and circumstances of each case. Due to their flexible nature, they may seem to be vague or

33
uncertain, but they have been very well adopted by the Indian legal system. Their aim is to
prevent arbitrariness, as well as miscarriage of justice.
Of course, they are not enforceable as fundamental rights, but nevertheless, they ensure a strong
safeguard against any arbitrary action that may adversely affect the rights of individuals. These
have been laid down by the courts as being the minimum protection to rights of individuals
against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority,
while making an order affecting those rights. These rules are intended to prevent such authority
from doing injustice. In the past, there were only two rules forming the rules of natural justice;
with the course of time, many more subsidiary rules came up to be added to them.
These principles are now well settled and can be summarised as under:
• That every person whose civil rights are affected, must have a reasonable notice
of the case he has to meet
• That he must have reasonable opportunity of being heard in his defence
• That the hearing must be by an impartial tribunal
• That the authority must act in good faith and not arbitrarily
• The order should be a speaking order
Q.1.What do you mean by “Doctrine of Bias”? Discuss this doctrine with the
help of decided cases.

Ans. Doctrine of Bias

Bias means an operative prejudice, whether conscious or unconscious, in relation to a party or
issue. Such operative prejudice may be the result of a preconceived opinion or a predisposition or
a predetermination to decide a case in a particular manner, so much so that it does not leave the
mind open.
Therefore, the rule against bias strikes against those factors which may improperly influence a
judge in arriving at a decision in any particular case.
The requirement of this principle is that the judge must be impartial and must decide the case
objectively on the basis of the evidence on record. In other words, a predisposition to decide for
or against one party without regard to the merit of the case is “bias”. Therefore the maxim is that
a person cannot be made a judge in his own case.
34
Crawford Bayley & co v/s Union of India AIR 2006 SCC 25, the supreme court held that
restarted that the doctrine of rules against bias comes into play if it is shown that the officer
concerned has a personal connection or personal interest or as personally acted in the matter
concerned and / or has already taken a decision one way or the other which he may be interested
in supporting.
The principle “nemo judex in causa sua” will not apply where the authority has no personal is
with the person concerned. Therefore , where cases of malpractice and pilferage by consumers of
electricity were decided by the electricity board itself, the supreme court held that it is not a
violation of the rule against bias such cases are similar to income tax and sales tax cases.
Hyderabad vanaspathi ltd v Andhra Pradesh AIR 1998 SCC 470.
Types of Bias

Pecuniary Bias
Departmental Bias
·Personal Bias ·
Subject Matter Bias
·

1. Personal Bias
Personal bias arises from a certain relationship equation between the deciding authority and the
parties which incline him unfavorably or otherwise on the side of one of the parties before him.
Such equation may develop out of varied forms of personal or professional hostility or
friendship. However, no exhaustive list is possible. Baidyanath Mahapatra v State of Orissa,
AIR 1989 SCC 664, the supreme court quashed the order of the tribunal confirming premature
retirement on the ground that the chairman of the tribunal was also a member of the review
committee which had recommended premature retirement.
Real Likelihood of Bias\ Reasonable Suspicion of Bias
However, in order to challenge an administrative action successfully on the ground of personal
bias it is essential to prove that there is a “reasonable suspicion of bias” or a “real likelihood of

35
bias”. The “reasonable suspicion test looks mainly to outward appearance, and the “real
likelihood” test focuses on the courts own evaluation of possibilities.
Ramanand Prasad Singh v Union of India, AIR 1996 SCC 64,the supreme court held that
participation in the selection committee as a member where his brother was a candidate but was
not selected his inconsequential bias on which the whole select list cannot be quashed.
2. Pecuniary Bias
In judicial approach unanimous and decisive on the point that any financial interest, howsoever
small it may be, would vitiate administrative action. The disqualification wil not be avoided by
non-participation of the biased member in the proceedings if he was present when the decision
was reached.
Jeejeebhoy v Collector AIR 1965 SC 1096, the chief justice reconstituted the bench when it
was found that one of the members of the bench was a member of the cooperative society for
which the land had been acquired. The Madras High Court also quashed the decision of the
decision of the collector who in capacity as the chairman of the Regional Transport Authority
had granted a permit in favour of a cooperative society of which he was also a chairman.
3. Subject Matter Bias
Those cases fall within this category where the deciding officer is directly, or otherwise,
involved in the subject-matter of the case. Here again mere involvement would not vitiate the
administrative action unless there is a real likelihood of bias.
Muralidhar v kadam singh AIR1954 MP III, the court refused to quash the decision of the
Election Tribunal on the ground that the wife of the chairman was a member of the Congress
party whose candidate the petitioner defeated.
4. Departmental Bias
The problem of departmental bias is something which is in gerent in the administrative process,
and if not effectively checked, it may negate the very concept of fairness in administrative
proceedings.
This problem came up before the Supreme Court in Hari K. Gawali v Dy. Commr of Police. In
this case, an experiment order was challenged on the ground that since the police department
which initiated the proceedings and the department which heard and decided the case were the

36
same the element of departmental bias vitiated administrative action. The court rejected the
challenge on the ground that so long as the two separate officers, though they were affiliated to
the same department, there was no bias.
Conclusion
Every kind of preference is not sufficient to vitiate an administrative action. If the preference is
rational and unaccompanied by consideration of rational interest, pecuniary or otherwise it would
not vitiate the decision. Similarly, there must be a real likelihood and not a mere suspicion of
bias, before the proceedings can be quashed on the ground of bias. This apprehension must be
judged from a healthy, reasonable and average point of view and not a mere apprehension and
vague suspicion of whimsical capricious and unreasonable people. As the justice rooted in the
minds of the people and it is destroyed when the right minded people go away thinking that the
judge is biased.
Q.3. Write short note on Administrative Discretion and its Judicial Control
Ans. Discretionary Power
A need of Modern administration Law the legislatures were compelled to confer vast
discretionary powers on the administration because it is not always possible to day down
standards or norms for the exercise of administrative power. Administration is always asked to
solve a problem, whenever it arises, for the legislature is not sure how it can be solved. It is
only administration which is deemed competent to do and therefore power is left with it in rather
broad terms. The administrative authorities vested with such powers should therefore, act on
their own accord they should not be guided by the direction or instruction of their superiors in
the discharge at the power.
U.P. State Roard Transport Corpn. V. Mohd. Ismail AIR 199 SC 1099.
Discretionary power may be conferred generally or with a duty attached to the exercise of that
power, where the power and duty to exercise it go together. The authority empowered is under a
statutory liability to exercise its discretionary Power and if it refused to do so, the Court of law
may compel its exercise.
The Court may compel the authority to exercise their discretion where they have been expressing
invested with such power. This exercise of discretion by the authority on which such discretion is
37
conferred must not be lightly interfered with. There is an essential distinction on between refusal
to exercise the discretion and manner of its exercise. If the authority fails to discharge his duty by
refusing to exercise his discretion when facts calling for its exercise exist. The court will compel
him to do so. If the authority concerned exercises his discretion honestly and in the spirit of the
statute, no mandamus will be issued directing him to exercise his discretion in a particular
way. A statutory authority can be compelled to exercise its statutory discretionary duty has been
assured by the Supreme Court in Cases.
(1) Ratlam Municipality V. Vardhichand AIR 1980 SC 1622
(2) U.P. State Road Road Transport Cap. V. Mohd. Ismail AIR 1991 SC 1099.
“Administrative Discretion and Fundamental Rights”
The Constitution has guaranteed certain fundamental rights to the people. These rights lay down
a limitation on the legislative and executive power of the Government and they provide some
wilds dimensions on judicial Control over administrative discretion. The fundamental rights thus
provide a basis to the judiciary in India to control administrative discretion to a large extent.
There have been a number of cases in which a law, conferring discretionary powers has been
held violative of a fundamental right . the following discussion will illustrate the cases of judicial
restraints on the exercise of discretion in India.
Under Art 14 of Indian Constitution
Art. 14 guarantees to every person equality before law or equal protection of laws. It condemns
discrimination, it forbids class legislation, but permits classification funded on intelligible
differentia, having a rational relationship with the object sought to be archived by the Act in
question.
In a number of cases, the statute has been challenged on the ground that it conferred on an
administrative authority wide discretionary powers of selecting persons or objective
discriminately and therefore, it violated Art 14, the Court in determining the question of validity
of such statute will examine whether the statute has laid down any principle or policy for the
guidance of the exercise of discretion by the Government in the matter of selection or
classification. The court will strike down the statute if it does not provide any guidance for the
exercise of the discretion in the matter of selection or classification. The court will not tolerate

38
the delegation of uncontrolled power in the hands of the executive to such an extent as to enable
it to discriminate.
Under Article 19 of Indian Constitution
Art. 19 guarantees certain freedoms to the citizen of India, but they are not absolute, reasonable
restrictions can be imposed on these freedoms under the authority of law. They cannot be
contended merely on executive action. The reasonableness of the restriction is open to judicial
review. These freedoms can also be officiating by administrative discretion. There was no
provision to review his decision or to afford an opportunity, to the aggrieved party to make a
representation against the prohibitory order nor is the executive under an obligation for taking
action.
Q.4. Define Injection? How many kinds of injection are there?
Ans. Injection
What if you move into a new house, and your new neighbors play loud music in the middle of
the night, every single day? What happens if a baseball stadium is built next to your house, and
lights shine in on you every night preventing you from sleeping? These are situations where you
may ask the offending party to stop doing something that is bothersome and a nuisance to you.
However, there are times when simply asking does not resolve the problem. In such a case, you
may seek to go to court to ask the judge to intervene in the situation and force the offensive party
from continuing to behave in the problematic manner. In order to do so, you would file an
injunction.
An injunction is a legal remedy which is imposed by a court. In simple terms, an injunction
means that one of the parties to a certain action must either do something or refrain from doing
something. Once the court makes its decision, the parties must abide by the ruling. If the party
fails to adhere to the injunction, there can be stiff monetary penalties and even imprisonment in
certain instances.

Requirements
In most jurisdictions, an injunction will not be granted unless the party seeking the injunction can
prove that they will cause irreparable injury if the court does not grant the injunction.
Irreparable injury means that the harm inflicted on one party is so bad that no monetary or other
39
type of payment is a good enough reward for putting up with the circumstances. In addition, the
party must show there is no other remedy available. Furthermore, the party must demonstrate
that if the court balances the parties' interests, the balance will tilt in favor of the party seeking
the injunction.
Types
There are different kinds of injunctions: a preliminary injunction, a temporary restraining order
and a permanent injunction. A preliminary injunction is one which is given to a party prior to a
trial. Since a full trial has not yet occurred, the courts are usually reluctant to issue this type of
injunction unless it is absolutely necessary and great damage may occur without the preliminary
injunction.
Another type of injunction is known as the temporary restraining order. This type of
injunction is very limited in time and scope. The purpose of the temporary restraining order is to
give the court time to review the matter in order to determine whether to grant a preliminary
injunction. On the other hand, a permanent injunction is one granted after the trial regarding
the matter. A permanent injunction can be issued after a preliminary injunction or temporary
restraining order.

Very Short Questions Answers

Q.1. What do you mean by Reasoned Decisions?

Ans. A reasoned decision means a decision which must contain reasons in support of it. A
reasoned decision acts as a check upon the arbitrary use of administrative power. A decision
supported by reason is much less likely to rest on caprice or careless consideration. The need
publicly to articulate the reasoning process upon which a decision is based, requires the
administrative authority to work out all the factors which are present in a, case. Lord Denning
rightly says "the giving of reasons is one of the fundamentals of good administration.”
Q.2.What is Administrative Instruction?

Ans. Administrative instructions or administrative directions are issued by a higher authority

to a lower authority directing as to how certain discretionary powers are to be exercised by the
executive. Issuing such administrative instructions is relatively a modern function of
40
administrative bodies. The mechanisms by which administrative authorities issue instructions are
through letters, circulars, orders, memoranda, pamphlets, public notices, press notices and even
notification in the government gazettes. Such instructions can be specific or general and
mandatory or directory. If they are directory then they are not binding.
Q.3. What is administrative discretion?

Ans. According to Lord Halsbury Administrative discretion 'includes the case in which the
ascertainment of fact is legitimately left to the administration determination'. Legislature is often
compelled to confer vast discretionary powers because it is not always possible to lay down
standards or norms for the exercise of administrative power. Discretion is a science or
understanding to discern between falsity and the truth, between right and wrong and not to do
according to will and private affection. An administrative discretion means choosing from
amongst the various available alternatives but with reference to the rules of reason and justice
and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but
legal and regular.

41
 KAMKUS COLLEGE OF LAW
B.A.LL.B VIII SEM
ADMINISTRATIVE LAW
Code (BL-801)
Unit –III

Detailed Questions Answers

Q.1. What do you mean by delegated legislation? What are the functions which
can be delegated and which cannot be delegated?
Ans. Delegate Legislation
Delegated legislation is a kind of subordinate legislation. Generally, the ‘delegated legislation’
means the law made by the executive under the powers delegated to it by the Supreme legislative
authority. It comes in the form of orders, bye-laws etc. The Committee on Minister’s power said
that the term delegated legislation has two meanings-
1. Firstly, it means the exercise of power that is delegated to the executive to make rules.
2. Secondly, it means the output the output or the rules or regulations etc. made under
the power so given.
Delegated legislation means the exercise of legislative power by an agency that is subordinate to
the legislature. This subordinate body acquires the power from the act of the legislature. Power is
transferred from the principal lawmaker to the lower body, which may be the executive, cabinet,
council of minister, or a specific administrative agency, by the mechanism of delegation.
Generally, delegation refers to the act of entrusting another authority or empowering another to
act as an agent or representative. By the same token, delegation of legislative powers means the
transfer of law-making authority by the legislature to the executive, or to an administrative
agency. In line with the power granted to them by the legislature administrative, agencies can
issue rules, regulations and directives, which have a legally binding effect.
Definition

42
The term delegated legislation is difficult to define. However, even if defined, it is equally
difficult to determine with certainty the scope of such delegated legislation.
Mukherjee, J. rightly observes, "Delegated Legislation is an expression which covers a
multitude of confusion. It is an excuse for the legislators, a shield for the administrators and a
provocation to the constitutional jurists.
As stated in Halsbury's Law of England "When an instrument of a legislative nature is made an
authority in exercise of power delegated or conferred by the legislature it is called "Subordinate
legislation."
Generally, 'delegated legislation' means the law made by the executive under the powers
delegated to it by the legislature. A simple definition of the term, 'delegated legislation' may be
given as follows:
"When the function of legislation is entrusted to organs other than the legislature itself, the
legislation made by such organs is called delegated legislation".
Functions which can be delegated (PERMISSIBLE DELEGATION)
1. Commencement of an Act depends upon the notification published by the State Government
in the official Gazette. Several statutes contain an 'appointed day' clause, which empowers
the Government to appoint a day for the enforcement of the Act. The Act comes into force
when the notification is published in the official Gazette. Such a provision is valid for, as
Sir Cecil Carr remarks "the legislature provides the gun and prescribes the target, but leaves
to executive the task of pressing the trigger".
2. The function of supplying details may be delegated to the executive for giving effect to the
policies formulated by the legislature. These functions are ancillary to the exercise of
legislative function.
3. Inclusion is permissible delegation. Sometimes legislature passes an Act and makes it
applicable, in the first instance, to some areas or classes of persons, but empowers the
Government to extend the application of such statute to different territories, persons or
commodities etc., e.g., the Transfer of Property Act, 1882 was made applicable to whole of
India except certain areas, but the Government was authorised to apply the provisions of the
Act to those areas also.

43
 4. Exclusion of any territory or commodities etc by the Government is permissible. Some
statues empower the Government to exempt from their operation certain persons, territories
etc.
5. Some statutes authorise the Government to suspend or relax the provisions contained in
such statue.
6. Some statutes confer the power on the executive to adopt and apply statutes existing in
other states without modification to a new area provided the legislative policy is laid down
in the statute by the competent legislature.
7. Sometimes modification in the existing statute is allowed by the provisions of statute itself
but before its application. This is a legislative act but sometimes it is necessary to deal with
local conditions.
8. In some cases the legislature delegates to the executive the power to take punitive actions.
9. A delegation of power to frame rules, bye-laws, regulations etc. is not unconstitutional,
provided that the rules, bye-laws and regulations are required to be laid before the
legislature before they come into force and provided further the legislature has power to
amend modify or repeal them.
10. Sometimes, legislature delegates the power to the Government to modify the provisions of
the existing statues for the purpose of removing difficulties. This is because of the fact that
at the date of the enactment of a statute, it is not possible to foresee all the difficulties which
may arise in implementing it. Such removal of difficulties provision is also necessary when
the legislature extends a law to a new area or to an area where the socio-economic
conditions are different.
Generally, two types of 'removal of difficulties' clauses are found in a statute, - a narrow one,
which empowers the executive to exercise the power of removal of difficulties consistent with
the provisions of the Parent Act.
Another type of 'removal of difficulties' clause is very wide and authorises the executive in the
name of removal of difficulties to modify even the parent Act or any other Act. Usually, such a
provision is for a limited period and nicknamed as "Hel1ry VIII Clause" to indicate the executive
autocracy.

44
In Sinai v. Union of India it is submitted that by using a 'removal of difficulties' clause, the
Government may slightly tinker with the Act to round off angularities and smoothen the joints or
remove minor obscurities to make it workable, but it can not change the feature of the Act.
Function which cannot be delegated (IMPERMISSIBLE DELEGATION)
1. Essential legislative functions cannot be delegated by the legislature to the executive. In
other words, legislative policy must be laid down by the legislature itself and by entrusting
this power to the executive; the legislature cannot create a parallel legislature.
2. Power to repeal a law is essentially a legislative function, and therefore, delegation of power
to the executive to repeal a law is excessive delegation and is ultra vires.
3. Power to modify the Act in its important aspects is an essential legislative function and
therefore delegation of such power is permissible to a limited extent.
4. The legislature cannot delegate the, power of exemption to the executive without laying
down the norms and policy for the guidance of the latter.
5. The legislature has plenary power of law making and in India, Parliament can pass any law
prospectively subject to the provisions of the constitution. Giving an Act retrospective
effect is essentially a legislative function and it can be delegated.
6. Legislature cannot delegate the power by which the executive can adopt the laws which
may be passed in future as this is an essential legislative function.
7. The legislature cannot empower the executive by which the jurisdiction of courts may be
ousted. This is a pure legislative function.
8. The making of a particular act into an offence and prescribing punishment for it is an
essential legislative function and cannot be delegated.
Q.2. Explain with the help of decided cases the judicial control over delegated
legislation.
Ans. Judicial Control over delegated over delegated legislation
It is for a court to hold a fair, generous and liberal construction of all impugned statute whether
the legislature exceeded such limits. It is the duty of the court to strike down without any
hesitation any blanket power conferred on the executive by the legislature. In the control
45
mechanism, judicial control has emerged as the most outstanding controlling measure. It is
exercised by applying two tests:
• Substantive Ultra Vires
• Procedural Ultra vires.
Ultra vires means beyond powers. When a subordinate legislation goes beyond the scope of
authority conferred on the delegate to enact, it is known as substantive ultra vires. An act which
is done in excess of power is ultra vires.
When a subordinate legislation is enacted without complying with the procedural requirements
prescribed by the Parent Act or by the general law, it is known as procedural ultra vires.
Judicial control over delegated legislation is exercised by applying the doctrine of ultra vires in a
number of circumstances.
Where parent Act is Ultra Vires the Constitution
The constitution prescribes the limits within which the legislature can act. If the parent Act or
statute is ultra vires the constitution and is bad for that reason, delegated legislation is also
necessarily bad and therefore can be challenged. When the Parent Act is challenged on the
ground of unconstitutionality, the nature and character of the statute is required to be ascertained.
For that purpose, courts have evolved the doctrine of 'Pith and Substance' or true nature and
character of the statute.
The parent Act is declared ultra vires the constitution if it violates the following limitations
Express Constitutional Limits: The legislative powers of the union and the state are expressly
distributed in Article 246 of constitution of India. If legislature encroaches upon the exclusive
sphere of the other as demarcated in the 3 lists, such legislation will be ultra vires.
In such situation, the rule of pith and substance has to, be applied to determine the competence of
the legislature. Each general word should be held to extend to all ancillary or subsidiary matters
which can fairly and reasonable be comprehended in it.
Implied Constitutional Limits: These limits are those which where enunciated in Delhi Laws Act
case viz, laying down policy and enacting the policy into a binding rule of conduct. Legislation
cannot delegate essential legislative functions to any other agency and if it is so delegated the
Parent Act will be ultra vires the constitution.

46
Constitutional Rights
No legislature has competence to pass a law violative of the provisions of commerce clause, right
to property under Article 300-A or right to life and personal liberty under Article 21. There is
another ground on which the validity of Parent Act may be challenged, although the statute is
well within the legislative compliance, yet violates the provisions of part III of the constitution
by imposing what may be called an unreasonable restriction on the enjoyment of fundamental
rights.
Where delegated legislation is inconsistent with parent ACT
The validity of delegated legislation can be challenged on the ground that it is ultra vires the
Parent Act. Delegated legislation can be held valid only if it conforms exactly to the power
granted. Rules made by the subordinate authority are always open to challenge on the ground
that it is unauthorised. The validity of delegated legislation is a matter if vires, that is, whether or
not the power has been exceeded or otherwise wrongfully exercised or is inconsistent with the
Parent Act or Statute.
Delegated Legislation in excess of the power conferred by the Parent Act: If the subordinate
authority keeps within the powers delegated, the delegated legislation is upheld valid but if does
not, the court will certainly quash it,
In Chandra Bali v. R certain rules framed under the Northern Indian Ferries Act authorised the
making of rules for the purpose of maintaining order ensuring safety of passengers and property.
However, the delegates made rules forbidding the establishment of private ferries within the
distance of two miles from the boundaries of another ferry. The court held the rules ultra vires as
they were outside the scope of delegated power.
In Major Radha Krishan v. Union of India and others the Supreme Court has held that an
administrative action taken in exercise of powers under a rule cannot override the provisions of a
statute under which the rule was made. In this case an administrative action which was barred
under the provision of the statute was taken under a rule made there under getting over the
statutory provision. The court held the action to be null and void.
The question whether a particular piece of delegated legislation is in excess of the limits
conferred on the delegates has to be determined with reference to the specific provisions

47
contained in the relevant statute conferring the power to make the rule, regulations etc and the
object and purpose of the Act can be gathered from the various provisions of the enactment.
Delegated Legislation in Conflict with the Parent Act: The validity of delegated legislation can
be challenged on the ground that it is in conflict with any of the provisions of Parent Statute.
In White v. Morley, Channel L.J. observed, "A bye-law is not bad because it deals with
something that is not dealt with by the general law. But it must not alter the general law by
making that lawful which the general law makes unlawful; or that unlawful which the general
law makes lawful.
Similarly, Krishna Iyer J. says, "A law has to be adjudged for its constitutionality by the
generality of cases it covers, not by the freaks and exceptions, it martyrs".
In Supreme Court Employees' Welfare Association v. Union of India, the Supreme Court has
held that, "the validity of the subordinate legislation can be challenged on such grounds as any
other legislative acts can be challenged."
After referring to a number of cases, the court concluded, "Where the validity of subordinate
legislation is in question, the court has to consider the nature, objects and the scheme of the
instrument as a whole and on the basis of that examination, it has to consider what exactly was
the area over which and the purpose for which, power has been delegated by the governing law.
Delegated Legislation in Conflict with the Prescribed Procedure of the Parent Statute: If Parent
statute prescribes procedure which must be followed by the administrative body while exercising
law-making power under it, if the procedure is not followed, the delegated legislation may be
declared bad. In considering the question of validity of delegated legislation on the ground of
procedure, the court looks to the intent rather than the form of law.
Malafide Bad Faith: In England, it is well settled that an Act passed by the competent legislature
cannot be questioned in the court on the ground that same was passed malafidely. Whenever the
legislature confers any legislative power on any administrative authority, the said power must be
exercised in good faith and on the proof of bad faith, the court can hold the exercise of power
ultra vires.

48
In India, the courts may consider the malafide exercise of power by the statutory authority. It
may be submitted that not only a delegated legislation but a statute passed by competent
legislature and even a Constitutional Amendment can be challenged as being malafide.
Unreasonableness: In England, it is well settled rule that the bye-laws made by corporations,
boroughs and other local bodies may be declared as ultra vires. As de Smith observes, "there is
no reason or principle why a manifestly statutory instrument should not be held to be ultra vires
on that ground alone"
In a leading case on unreasonableness of byelaws is Kruse v. Johnson, deciding the case, Lord
Russel C.J., propounded the test of unreasonableness of delegated legislation as "Parliament
never intended to give authority to make such rules, they are unreasonable and ultra vires. But at
the same time it should not be forgotten that such bye laws must be 'benevolently construed' and
they ought to be supported if possible.
In India, the principle is same as accepted in England. In India, the doctrine of unreasonableness
of delegated legislation has been based on a firm ground viz, Article 14 of the constitution.
According to the interpretation of Supreme Court, Article 14 which guarantees equality before
law can now be used to invalidate any law and action which is arbitrary or unreasonable. In a
number of cases the Supreme Court has established that Article 14 contains the principle of
reasonableness. It has been held that "the concept of reasonableness and non-arbitrariness
pervades the entire constitutional scheme and is golden thread which runs through the whole of
fabric of the constitution. Accordingly, "every state action whether it be the legislature or of the
executive or of "an authority under Article 12" shall be struck down by the court, if it does not
comply with requirement of reasonableness.
Where delegated legislation is unconstitutional
Sometimes delegated legislation is consistent with the provisions of the parent statute or
delegating statute which may be constitutional and valid, yet the delegated legislation may be
held invalid on the ground that it conflicts the provisions of the Constitution itself.
In Narendra Kumar vs Union of India, the validity of the Non-Ferrous Metal Control order,
1958 issued under section 3 of the Essential Commodities Act 1955, was challenged on the
ground of its unconstitutionality. The petitioner has not challenged the validity of the parent

49
statute. The Supreme Court held that even though a parent statute might not be unconstitutional,
an order made by the delegated legislation can still be unconstitutional and can be challenged as
violative of the provisions of the constitution.

Q.3. Explain the constitutionality for the validity of Delegated

Legislation.
Ans. The term 'constitutionality of administrative rule-making or delegated legislation'
means the permissible limits of the constitution of any country within which the legislature,
which as the sole repository of law making power, can validly delegate rule-making power to
other administrative agencies. The new role of State in order to facilitate the concept of welfare
State can be fulfilled only through the use of greater power in the hands of government which is
most suited to carry out the social and economic tasks before the country. The task of enhancing
the power of the government to enable it to deal with the problems of social and economic
reconstruction has been accomplished through the technique of delegation of legislative power to
it. This delegation of legislative power raises a natural question of its constitutionality.
Constitutionality of administrative rulemaking is basically the limits that are permissible of the
Constitution of a country within which the legislature can with all rights delegate rule-making
power to other agencies of administration. The aim of extending the power of the government is
to give it the ability to handle socio-economic problems.
In England, parliament is supreme authority and therefore able to confer wide legislative powers
on the executive with expressly defined limits.
In America, the doctrine of separation of powers has been considered to be an essential principle
underlying the constitution and the powers entrusted to one department should be exercised
exclusively by the department without encroaching upon the powers of others. Therefore,
legislative power cannot be delegated.
In India -The constitutionality of delegated legislation can be seen in two perspectives:
Pre Independence -Queen v. Burah wherein the Privy Council had validated only Conditional
Legislation and therefore as per its reasoning delegated legislation is not permitted. The
administration of civil and criminal justice within the said territory was vested in such officers as

50
the Lieutenant-Governor may from time to time appoint. Sections 8 and 9 of the said Act
provided as follows: - "Section 8. The said Lieutenant-Governor may from time to time, by
notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any
law, now in force in the other territories subject to his Government, or which may hereafter be
enacted by the Council of the Governor-General, or of the said Lieutenant-Governor, for making
laws and regulations, and may on making such extension direct by whom any powers of duties
incident to the provisions so extended shall be exercised or performed, and make any order
which he shall deem requisite for carrying such provisions into operation."
"Section 9- The said Lieutenant-Governor may from time to time, by notification in the Calcutta
Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of
this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time
being forms part of British India. It was held that Indian legislators have plenary powers and it
exercised the power in its own right and not as an agent or a delegate of the British parliament.
The Privy Council laid down that “seeking of assistance of a subordinate agency in the framing
of rules and regulations which are to become a part of the law and conferring on another body
the essential legislative functions which under the constitution should be exercised by the
legislature itself. It also stated that the essential legislative function consists in the determination
or choosing of the legislative policy and formally enacting that policy into binding rule of
conduct.
Also in King v. Benoari Lal Sharma Conditional legislation was again applied by the privy
council wherein the validity of an emergency ordinance by the Governor-General of India was
challenged inter alia on the ground that it provided for setting up of special criminal courts for
particular kinds of offences, but the actual setting up of the courts was left to the Provincial
Governments which were authorised to set them up at such time and place as they considered
proper. The Judicial Committee held that "this is not delegated legislation at all. It is merely an
example of the not uncommon legislative power by which the local application of the provisions
of a statute is determined by the judgment of a local administrative body as to its necessity." The
privy council held that “Local application of the provision of a state is determined by the
judgment of a local administrative body as to its necessity.” Also the Federal Court in Jatindra

51
Nath v State of Bihar AIR 1949 FC 175held that power of extension with modification is
unconstitutional as legislative power cannot be delegated. Wherein the S. 1 (3) of Bihar
maintenance of public order Act, 1948 was challenged – as it gave power of extension of
modification to provincial Govt. but this case But created doubts on the limits of delegation.
Post Independence
The Delhi Laws Act, 1912, giving power to the Government to extend to Delhi and
Ajmer-Marwar with such restrictions and modifications as it thought fit any law in force in any
other part of India, was held intra vires- The case also discussed the validity of the law
empowering the Government to extend to part C States any law in force in a part A state and to
repeal existing laws-- It was held ultra vires under article 143 of the Constitution asking the
Court's opinion on the three questions submitted for its consideration and report. Section 2 of the
Part C States (Laws) Act, 1950, runs as follows:-"Power to extend enactments to certain Part C
States. - The Central Government may, by notification in the Official Gazette, extend to any Part
C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State,
with such restrictions and modifications as it thinks fit, any enactment which is in force in a part
A State at the date of the notification and provision may be made in any enactment so extended
for the repeal or amendment of any corresponding law (other than a Central Act) which is for the
time being applicable to that Part C State.
The three sections referred to in the three questions are all in respect of what is described as the
delegation of legislative power and the three particular Acts are selected to raise the question in
respect of the three main stages in the constitutional development of India. The first covers the
legislative powers of the Indian Legislature during the period prior to the Government of India
Act, 1915. The second is in respect of its legislative power after the Government of India Act,
1935, as amended by the Indian Independence Act of 1947. The last is in respect of the power of
the Indian Parliament under the present Constitution of 1950.
As regards constitution of the delegation of legislative powers the Indian Legislature cannot be in
the same position as the prominent British Parliament and how far delegation is permissible has
got to be ascertained in India as a matter of construction from the express provisions of the
Indian Constitution. It cannot be said that an unlimited right of delegation is inherent in the

52
legislature power itself. This is not warranted by the provisions of the Constitution and the
legitimacy of delegation depends entirely upon its being used as an ancillary measure which the
legislature considers to be necessary for the purpose of exercising its legislative powers
effectively and completely. The legislature must retain in its own hands the essential legislative
functions which consist in declaring the legislative policy and laying down the standard which is
to be enacted into a rule of law, and what can be delegated in the task of subordinate legislation
which by its very nature is ancillary to the statute which delegates the power to make it. Provided
the legislative policy is enunciated with sufficient clearness or a standard laid down the courts
cannot and should not interfere with the discretion that undoubtedly rests with the legislature
itself in determining the extent of delegation necessary in a particular case. These, in my opinion,
are the limits within which delegated legislation is constitutional provided of course the
legislature is competent to deal with and legislate on the particular subject-matter. It is in the
light of these principles that I propose to examine the constitutional validity of the three
legislative provisions in respect to which the reference has been made.
In case of Raj Narain Singh v. Chairman Patna Administration committee Air 1954 SC 569in
which S.3(1)(f) wherein the Bihar & Orissa Act, empowered the local administration to extend to
Patna the provisions of any sections of the act ( Bengal Municipality Act, 1884) subject to such
modification, as it might think fit. The government picked up section 104 and after modifications
applied it to the town of Patna. One of the essential features of the Act was the provision that no
municipality competent to tax could be thrust upon a locality without giving its inhabitants a
chance of being heard and of being given as opportunity to object. The sections which provided
for an opportunity to object were excluded from the notification. It was held as amounting to
tamper with the policy of the Act.
In Lachmi Narain v. UOI (1976 2) SCC 95where the validity of Section 2 of Union Territories
(Laws) Act, 1950 and Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be determined.
The issue was that whether notification issued by Central Government in purported exercise of
its powers under Section 2 ultra vires of Central Government.

Short Answers Questions Answers

Q.1. Discuss the grounds of judicial review of administrative actions.
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Ans. In recent times, many administrative decisions taken by the Government are being struck
down either on avoidable grounds of illegality or procedural irregularity or some other grounds
which could have been validly averted. Judicial review is the basic feature of the Indian
Constitution and therefore, cannot be abrogated even by an amendment of the
Constitution. It is incorporated in Articles 226 and 227 of the Constitution insofar as the
High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the
Constitution embody the principle of judicial review. Article 32 is included in Part III as a
fundamental right for enforcement of any of the fundamental rights conferred under Part
III.
Grounds

Irrationality Proportionality

Jurisdictional Error Legitimate Expectation

Procedural impropriety

These grounds of judicial review were developed by Lord Diplock in Council of Civil
Service Union v. Minster of Civil Service (1985) AC 410. Though these grounds of
judicial review are not exhaustive and cannot be put in watertight compartments yet these
provide sufficient base for the courts to exercise their review jurisdiction over
administrative action in the interest of efficiency, fairness and accountability.
1.Jurisdictional Error
The term “jurisdiction” means “power to decide”. The jurisdiction of the administrative
authority depends upon facts the existence of which is necessary to the initiation of
proceedings & without which the act of the Court is a nullity. These are called
“jurisdictional facts”. This ground of judicial review is based on the principle that
administrative authorities must correctly understand the law and it limits before any
action is taken. Court may quash an administrative action on the ground of ultra vires in
following situations.

54
 • Lack of Jurisdiction
• Excess of Jurisdiction
• Abuse of Jurisdiction
2.Irrationality
A general principle which has remained unchanged is that discretionary power conferred on an
administrative authority is required to be exercised reasonably. A person in whom is vested a
discretion must exercise his discretion upon reasonable grounds. A decision of the administrative
authority shall be considered as irrational if it is so outrageous in its defiance to logic or accepted
norms of moral standard that no sensible person, on the given facts and circumstances, could
arrive at such a decision. Irrationality as a ground of judicial review was developed by the Court
in Associated Provincial Picture House v. Wednesbury, later came to be known as
“Wednesbury test” to determine ‘irrationality’ of administrative action. The local authority had
the power to grant licenses for the opening of cinemas subject to such conditions as the authority
‘thought fit’ to impose. The authority, when granting a Sunday licence, imposed a condition that
no children under the age of 15 years should be admitted.
The applicants argued that the imposition of the condition was unreasonable and ultra vires the
corporation’s powers. Stating that the Court should not substitute its view for that of the
corporation the court observed: interference would not be permissible unless it is found that the
decision was illegal or suffered from procedural improprieties or was one which no sensible
decision maker could, on the material before him and within the framework of law, have arrived
at it. The Court would consider whether relevant matters were not taken into account or whether
the action was not bona fide or whether the decision was absurd.
3. Procedural Impropriety
Failure to comply with procedures laid down by statute may invalidate a decision. Procedural
Impropriety is to encompass two areas: failure to observe rules laid down in statute; and a failure
to observe the basic common law rule of natural justice. In Bradbury v Enfield London
Borough Council , the Education Act 1944 provided that, if a local education authority intends
to establish new schools or cease to maintain existing schools, notice must be given to the
minister, following which, public notice must be given in order to allow interested parties to
55
comment. The Council breached the requirement of public notice and the plaintiffs sought an
injunction. The Council claimed that educational chaos would occur if they were required to
comply with the procedural requirements. That plea met with little sympathy in court.
In the Aylesbury Mushroom case, the court ruled that the statutory requirements of consultation
with organizations or associations which represented substantial numbers of people could not be
avoided by consultation with the largest representative body of all agricultural horticultural and
forestry industry, workers – the Nation Farmers’ Union. The Board claimed that consultation
with the Nation Farmers’ Union involved consultation with all smaller representative bodies; a
claim rejected by the court. For true consultation to take place in accordance with law there must
be communication with the representative organizations and the opportunity given of responding
thereto, without which ‘there can be no consultation’. In Aylesbury Mushroom, the Mushroom
Growers Association was not bound by the order, although the order remained effective as
against those who were consulted. It is a fundamental requirement of justice that, when a
person’s interests are affected by a judicial or administrative decision, he or she has the
opportunity both to know and to understand any allegations made, and to make representations to
the decision maker to meet the allegations. The principles of natural justice which are imposed
by the courts comprise two elements:
• Audi alteram partem (hear both sides)
• Nemo judex in causasua (there should be an absence of bias with no person being a
judge in their own cause).
The essence of justice lies in a fair hearing. The rule against bias is strict: it is not
necessary to show that actual bias existed; the merest appearance or possibility of bias
will suffice. The suspicion of bias must, however, be a reasonable one.
4. Proportionality
Proportionality means that the administrative action should not be more drastic than it ought to
be for obtaining desired result. Proportionality is sometimes explained by the expression ‘taking
a sledgehammer to crack a nut’. Thus this doctrine tries to balance means with ends.
Proportionality shares space with ‘reasonableness’ and courts while exercising power of review
sees, ‘is it a course of action that could have been reasonably followed’. Courts in India have

56
been following this doctrine for a long time but English Courts have started using this doctrine in
administrative law after the passing of the Human Rights Act, 1998. Thus if an action taken by
the authority is grossly disproportionate, the said decision is not immune from judicial scrutiny.
The sentence has to suit the offence & the offender. It should not be vindictive or unduly harsh.
5. Legitimate Expectations
A legitimate expectation will arise in the mind of the complainant wherever he or she has been
led to understand — by the words or actions of the decision maker – that certain procedures will
be followed in reaching a decision. A Legitimate Expectation amounts to an expectation of
receiving some benefit or privilege to which the individual has no right. Legitimate Expectation
means expectation having some reasonable basis. The doctrine of Legitimate Expectation has
evolved to give relief to the people when they are not able to justify their claims on the basis of
law in the strict sense of the term they had suffered civil consequences because their legitimate
expectation has been violated. Two considerations apply to legitimate expectations. The first is
where an individual or group has been led to believe that a certain procedure will apply. The
second is where an individual or group relies upon a policy or guidelines which have previously
governed an area of executive action.
In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association, the
corporation had given undertakings to the taxi drivers to the effect that their licenses would not
be revoked without prior consultation. When the corporation acted in breach of this undertaking,
the court ruled that it had a duty to comply with its commitment to consultation. A public body
may act in a manner which creates an expectation in the mind of a person or body.
In R v Secretary of State for Health ex parte U Tobacco International Inc., the company had
opened a factory in 1985 with a govt. grant, for the production of oral snuff. The government
made the grant available notwithstanding its awareness of the health risks of the product. In
1988, however, the government — having received further advice from a committee —
announced its intention to ban snuff. The company sought judicial review, relying on a legitimate
expectation based on the government’s action. The court ruled, however, that, even though the
applicant had a legitimate expectation, that expectation could not override the public interest in
banning a harmful substance.

57
Very Short Questions Answers
Q.1. What do you mean by sub-delegation of legislative powers?
Ans. Sub-delegation means that the administrative authority to whom Parliament delegates
legislative power, may, in its turn, further delegate this power on either itself or on some
other authorities. The process of sub-delegation may go on to a few stages and thus the
process of rule-making may go on several steps removed from the original grant of
power.
Q.2. What do you mean by legislative powers of Administration?
Ans. Legislative power of administrative agencies, usually known as rule-making power and
more formally delegated legislation, is the power of agencies to enact binding rules
through the power delegated to them by the legislator.
Q.3. Explain Delegatus Non Potest Delegare.
Ans. Delegatus Non Potest Delegare means one to whom power is delegated cannot himself
further delegate that power. A discretionary power must in general, shall be exercised
by the authority to whom it has been committed. It is a well known principle of law that
when a power has been confided to a person, he must exercise the power personally
unless he has been expressly empowered to delegate it to another. This principle has been
expressed in the form of a maxim delegatus non potest delegare, it is often applied to law
of agency, trust and arbitration.

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 KAMKUS COLLEGE OF LAW
B.A.LL.B VIII SEM
ADMINISTRATIVE LAW
Code (BL-801)
Unit –IV

Detailed Questions Answers

Q.1. Write a detailed note on administrative tribunal.
Ans. Introduction
The executive executes several quasi-legislative functions and quasi-judicial functions. It has
been the duty of the judiciary to preside over disputes but today, the Government’s functions
have increased thus having some functions of the judiciary being undertaken by the executive.
Some of these functions include the imposition of fine, levy of penalty and confiscation of goods
among others.
The State looks to make sure that social security and social welfare of the people are taken care
of over the sovereign functions it has. It looks after the industrial relations, takes control over
productions and begins many enterprises. Legal issues are not the only affairs that come about.
The ordinary courts cannot handle socio-economic affairs and neither can they preside over
expeditious issues. Ordinary courts are supposed to follow the rules of procedure and evidence
that are ever strict and technical. In that connection, administrative tribunals are formed to
preside over quasi-judicial issues instead of ordinary courts of law.
Meaning and Definition
Tribunal is an administrative body that practices the power to adjudicate. They are not termed as
ordinary courts. The word tribunal cannot be scientifically and precisely defined. In the
dictionary, the word ‘tribunal’ is the seat or bench that a judge or judges sit in a court of justice.
This definition is vast since it covers ordinary courts of law and when it comes to administrative
law, the meaning is bound to adjudicating authorities besides ordinary courts of law.
Constitutional Recognition
Art. 136 of the Constitution recognizes the status of tribunals which gives power to the Supreme
court to give a special leave to appeal from any judgment whatsoever, decree, determination,
59
sentence or an order authorized by any tribunal in India. Likewise, Art 227 gives power to every
High Court to be superior over every tribunal in the areas they have jurisdiction over.
When Prime Minister Mrs. Indira Gandhi was in power and by the 42 Constitutional
Amendment, 1976, Art. 323-A and 323-B have been added in the Constitution through which
the Parliament was authorized to include an administrative tribunal for the matters that arise from
the service and adjudication of the matter mentioned therein.
A tribunal is an authority that adjudicates and the power of adjudication must be received from a
statute and not from the agreement of parties. Art. 136 or 127 of the Constitution has it that a
tribunal is an adjudicating authority besides a Court given the judicial power of the State from a
Statute or rule of statute.
Art. 227 provides that the following authorities are held to be tribunal -
1. Election tribunal.
2. Industrial tribunal.
3. Revenue tribunal.
4. Rent Control Authority.
5. Income Tax Tribunal.
6. Railway Rates tribunal.
7. Panchayat Courts.
8. Payment of Wages Authority.
9. Statutory Arbitrator.
At the same time these authorities are not tribunal -
1. Domestic tribunal.
2. Conciliation Officer.
3. Military tribunal.
4. Private Arbitrator.
5. Customs Officer.
6. Advisory Board under Preventive Detention Laws.
The Growth (Reasons) of Administrative Tribunal

60
Dicey’s theory of Rule of Law states that legislative bodies are only for making laws. The
ordinary Court of law is supposed to administer these laws. It is contrary to the doctrine of
Separation of Power to establish an administrative tribunal.
However, things have evolved with the functions of government increasing and the ordinary
Courts of Law are not equipped to handle situations and complex issues in the dynamic
socio-economic world in the practical sense. The ordinary courts are already overburdened and
there are numerous reasons to that. The courts have to go through strict rules of procedures and
evidence. The provision of a system of adjudication which was informal, inexpensive and fast is
a great desire.
In the said situations, the following are the reasons why administrative
tribunals are formed -
The Inadequacy Judicial System
It has been proven that the traditional judicial system is inadequate to preside over every conflict
that is in need of a resolution. It is slow, complex, costly, lacks expertise and very formal. It has
been burdened excessively from the beginning and the fast execution of all matters should not be
expected. For instance, conflicts between employees and employers comprising of strikes and
lockouts among others is an issue that cannot be settled only through the stern interpretation of
the law. It calls for a number of factors to be considered which cannot come to a standing in a
court of law. In that case, the establishment of the industrial tribunal and labor courts were
brought about which have the methodologies and professionalism to deal with complex issues
such as these.
The Judicial System is conservative, rigid and Technical
Administrative authorities can do away with technicalities. This is because they take practical
approaches instead of theoretical approaches. The traditional judiciary is out-dated, stern and
technical. Unlike administrative tribunals that are not held by stern rules of evidence and
procedure. They make use of practical aspects to settle practical issues.
Provision for preventive measures
The ordinary courts have to wait until the conflicting parties appear before them as a result of
their inability to take preventive measures. On the other end, administrative authorities can take
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preventive measures such as licensing and rate-fixing. Many times, the preventive doings can
turn out to be very effective and of use instead of giving a punishment to someone after he has
done an offense in consideration of what the law provides.
Effective enforcement of preventive measures
Administrative Authorities can undertake result producing processes to enforce the preventive
measures that were mentioned earlier which may include suspension, revocation or cancellation
of licenses and the destruction of contaminated articles among others. The courts of law
normally do not have these solutions.
Departmental Policies and other factors are considered
Ordinary Courts of law make rulings after hearing parties and based on the evidence present in
the records. Administrative authorities do not find these procedures to be right for making
decisions where secrecy is given to them and the final ruling may be granted on departmental
policies instead of factors that are relevant. In the transformation of the socio-economic
atmosphere, policy consideration can be applied when solving some modern cases where law,
pure and simple concepts cannot be applied.
Need for expertise
Disputes are naturally technical sometimes. It is not expected of the judicial system to take them
in and preside over them. The judges have their expertise on the law but none of it in technical
knowledge of technical conflicts. Administrative tribunals on the other side of the coin, are
handled by experts who can cater and solve such issues. Examples: Issues related to atomic
energy.
Merits of the system of Administrative Adjudication
Administrative adjudication system is inexpensive, fast and flexible. On the other hand, the
judicial system is sluggish, complex and full of formalities.
Characteristics
A tribunal must have the following characteristics as set by the Supreme Court:
1. It must have originated from a statute.
2. It has some but not all elements of a court.

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3. It has been granted judicial powers by the State that allows it to undertake judicial and
quasi-judicial functions.
An administrative tribunal has the powers of a Court when it comes to procedural matters such as
to summon witnesses, administering the oath and so forth. It is not held under stern rules of
procedure and evidence. The rulings of many tribunals are judicial instead of administrative even
if they have to take records of findings of facts objectively and apply the law without regarding
executive policy. Discretion is to be made use of objectively and judicially.
Majority of the administrative tribunals are not interested entirely with the cases a government is
a part of. They also preside over cases between two private parties. The tribunals are independent
and they are not to be interfered with other administrations as they execute their judicial and
quasi-judicial functions. Against the rulings of administrative tribunals, prerogative writs of
certiorari and prohibition are present. They must sit in public. A legal practitioner may represent
a party but it is not a right. The tribunal members are able enough to be judges.
Case Law
• Durga Shankar Mehta v. Raghuraj Singh, 1954, Tribunal was defined by the Supreme
Court when it said that as used in Art. 136, the tribunal is not the same as ‘Court’ but
entails all bodies that adjudicate on condition that they are constituted by the State and
laid upon with judicial duties differentiated from administrative or executive duties.
• In Bharat Bank Ltd. v. Employees, 1950, the Supreme Court maintained that tribunals
are not courts even though they have court apparel and practice quasi-judicial functions.
Q.2. Explain the various types of writs provided under Indian Constitution.

Ans. Meaning
Writ is an instrument or order of the court by which the court (High Court or Supreme Court)
directs an individual or official or an authority to do an act or abstinence.

Types of Writs

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HABEAS CORPUS
Meaning
It is one of the important writs for personal liberty which says “You have the Body”. The main
purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the
protection of the individual from being harmed by the administrative system and it is for
safeguarding the freedom of the individual against arbitrary state action which violates
fundamental rights under articles 19, 21 & 22 of the Constitution. This writ provides immediate
relief in case of unlawful detention.
When Issued?
Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any
authority of law. A criminal who is convicted has the right to seek the assistance of the court by
filing an application for “writ of Habeas Corpus” if he believes that he has been wrongfully
imprisoned and the conditions in which he has been held falls below minimum legal standards
for human treatment. The court issues an order against prison warden who is holding an
individual in custody in order to deliver that prisoner to the court so that a judge can decide
whether or not the prisoner is lawfully imprisoned and if not then whether he should be released
from custody.
Case Law-
The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’ father
as the victim P. Rajan who was a college student was arrested by the Kerala police and being

64
unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara Warrier filed
a writ of Habeas Corpus and it was proved that he died in police custody.
Then, in the case of ADM Jabalpur v. Shivakant Shukla (1976)2 SCC 521, which is also known
as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even
during the emergency (Article 359).
While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held
in Narayan v. Ishwarlal AIR 1965 SC 1818, that the court would rely on the way of the
procedures in which the locale has been executed.
This writ has been extended to non-state authorities as well which is evident from two cases. One
from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the proctor of
Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins was
released. And in the case of Somerset v. Stewart wherein an African Slave whose master had
moved to London was freed by the action of the Writ.
Quo Warranto
Meaning
Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public
offices and it is issued to restrain persons from acting in public office to which he is not entitled
to. Although the term ‘office’ here is different from ‘seat’ in legislature but still a writ of Quo
Warranto can lie with respect to the post of Chief Minister holding a office whereas a writ of quo
warranto cannot be issued against a Chief Minister, if the petitioner fails to show that the
minister is not properly appointed or that he is not qualified by law to hold the office. It cannot
be issued against an Administrator who is appointed by the government to manage Municipal
Corporation, after its dissolution. Appointment to public office can be challenged by any person
irrespective of the fact whether his fundamental or any legal right has been infringed or not.
The court issues the Quo Warnto
When the public office is in question and it is of a substantive nature. A petition against a private
corporation cannot be filed.
1. The office is created by the State or the Constitution.
2. The claim should be asserted on the office by the public servant i.e. respondent.

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 Case Law
In the case of Ashok Pandey v. Mayawati AIR 2007 SC 2259, the writ of Quo Warranto was
refused against Ms Mayawati (CM) and other ministers of her cabinet even though they were
Rajya Sabha members.
Then in the case of G.D. Karkare v. T.L. Shevde AIR 1952 Nag. 333, the High Court of Nagpur
observed that “In proceedings for a writ of quo warranto, the applicant does not seek to enforce
any right of his as such nor does he complain of any non-performance of duty towards him. What
is in question is the right of the non-applicant to hold the office and an order that is passed is an
order ousting him from that office.”
The Writ of quo warranto was denied by the court in the case of Jamalpur Arya Samaj v. Dr D.
Ram AIR 1954 Pat 297. The writ was denied on the ground that writ of quo warranto cannot lie
against an office of a private nature. And also it is necessary that office must be of substantive
character. Whereas in the case of R.V. Speyer (1916) 1 K.B. 595 the word ‘substantive’ was
interpreted to mean an ‘office independent to the title’. Also in H.S. Verma v. T.N. Singh
1971(1) SCC 616, the writ was refused as the appointment of a non-member of the state
legislature as C.M. was found valid in view of Article 164(4) which allows such appointment for
six months.
Mandamus
Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior court to a
lower court or government officer. However, this writ cannot be issued against the President and
the Governor. Its main purpose is to ensure that the powers or duties are not misused by the
administration or the executive and are fulfilled duly. Also, it safeguards the public from the
misuse of authority by the administrative bodies. The mandamus is “neither a writ of course nor
a writ of right but that it will be granted if the duty is in nature of public duty and it especially
affects the right of an individual, provided there is no more appropriate remedy”. The person
applying for mandamus must be sure that he has the legal right to compel the opponent to do or
refrain from doing something.
Conditions
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 1. There must rest a legal right of the applicant for the performance of the legal duty.
2. The nature of the duty must be public.
3. On the date of the petition, the right which is sought to be enforced must be subsisting.
4. The writ of Mandamus is not issued for anticipatory injury.
Limitations
The courts are unwilling to issue writ of mandamus against high dignitaries like the President
and the Governors. In the case of S.P. Gupta v. Union of India AIR 1982 SC 149, judges were
of the view that writ cannot be issued against the President of India for fixing the number of
judges in High Courts and filling vacancies. But in Advocates on Records Association v.
Gujarat (1993) 4 SCC 441, the Supreme Court ruled that the judges’ issue is a justiciable issue
and appropriate measures can be taken for that purpose including the issuance of mandamus. But
in C.G. Govindan v. State of Gujarat (1998)7 SCC 625, it was refused by the court to issue the
writ of mandamus against the governor to approve the fixation of salaries of the court staff by the
Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the
President means the state or the Union and therefore issuance of mandamus cannot take place.
Case Law
In Rashid Ahmad v. Municipal Board AIR 1952 Orissa 344, it was held that in relation to
Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the issue
of writ though the fact may be taken into consideration.
Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book
had applied for the writ of mandamus against the Director of Public Instruction for the inclusion
of his book in the list of books which were approved as text-books in schools. But the writ was
not allowed as the matter was completely within the discretion of D.I.P and he was not bound to
approve the book.
Certiorari
Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the
jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts
like the High Court or the Supreme Court by the affected parties.

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There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against
purely administrative or ministerial orders and that it can only be issued against judicial or
quasi-judicial orders.
When is a Writ of Certiorari?
It is issued to quasi-judicial or subordinate courts if they act in the following ways:
1. Either without any jurisdiction or in excess.
2. In violation of the principles of Natural Justice.
3. In opposition to the procedure established by law.
4. If there is an error in judgement on the face of it.
5. Writ of certiorari is issued after the passing of the order.
Case Law
In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning,
ambit and scope of the writ of Certiorari. Also, in this it was explained that Certiorari is always
available against inferior courts and not against equal or higher court, i.e., it cannot be issued by
a High Court against any High Court or benches much less to the Supreme Court and any of its
benches. Then in the case of T.C. Basappa v. T. Nagappa & Anr. 1954 AIR 240, it was held by
the constitution bench that certiorari maybe and is generally granted when a court has acted (i)
without jurisdiction or (ii) in excess of its jurisdiction. In Hari Bishnu Kamath v. Ahmad
Ishaque AIR 1955 SC 233, the Supreme Court said that “the court issuing certiorari to quash,
however, could not substitute its own decision on the merits or give directions to be complied
with by the court or tribunal. Its work was destructive, it simply wiped out the order passed
without jurisdiction, and left the matter there.” In Naresh S. Mirajkar v. State of
Maharashtra AIR 1967 SC 1, it was said that High Court’s judicial orders are open to being
corrected by certiorari and that writ is not available against the High Court.
Prohibition
It is a writ directing a lower court to stop doing something which the law prohibits it from doing.
Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from acting
contrary to the rules of Natural Justice.

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When is the writ of Prohibition ?
It is issued to a lower or a subordinate court by the superior courts in order to refrain it from
doing something which it is not supposed to do as per law. It is usually issued when the lower
courts act in excess of their jurisdiction. Also, it can be issued if the court acts outside its
jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and
should be issued before the lower court passes an order. Prohibition is a writ of preventive
nature. The principle of this is ‘Prevention is better than cure’.
Case Law
In case of East India Commercial Co. Ltd v. Collector of Customs 1962 AIR 1893, a writ of
prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the
proceeding on the ground that the proceeding is without or in excess of jurisdiction or in
contradiction with the laws of the land, statutes or otherwise. Then in the case of Bengal
Immunity Co. Ltd AIR 1955 SC 661, the Supreme Court pointed out that where an inferior
tribunal is shown to have seized jurisdiction which does not belong to it then that consideration is
irrelevant and the writ of Prohibition has to be issued as a right.

Q.3. Discuss the constitutional safeguards that have been provided to

government servant in India.
Or
Q. 3. Explain the Doctrine of Pleasure in India.
Ans. The doctrine of Pleasure is a common law rule. This doctrine has its origin in England. The
Doctrine of Pleasure is a special prerogative of the British Crown. In England, a servant of the
Crown holds office during the pleasure of the Crown and he can be dismissed from the service of
Crown at pleasure.
Doctrine of Pleasure under the Indian Constitution
Doctrine of Pleasure under the Indian Constitution is also based on the same policy
considerations as it existed under the common law in England. Though doctrine of pleasure is

69
accepted in India as it has developed in England, it has not been completely accepted in India.
This Doctrine of Pleasure is embodied in India in Article 310(1).
Article 310(1) provides that Except as expressly provided by this Constitution, every person who
is a member of a defence service or of a civil service of the Union or of an all India service or
holds any post connected with defence or any civil post under the Union, holds office during the
pleasure of the President, and every person who is a member of a civil service of a State or holds
any civil post under a State holds office during the pleasure of the Governor of the State.
This is the general rule which operates “except as expressly provided by the Constitution.” This
means that the Doctrine is subject to constitutional limitations. Therefore, when there is a
specific provision in the Constitution giving to servant tenure different from that provided in
Article 310, then that servant would be excluded from the operation of the pleasure doctrine.
The following are expressly excluded by the Constitution from the rule of Pleasure. They are:
1. Supreme Court Judges Article 124,
2. Auditor General (Article 148)High Court Judges (Article 217, 218)
3. A member of Public Service Commission (Article 317)
4. The Chief Election Commissioner.
Though doctrine of pleasure has not been completely accepted in India, it is subject to the
provisions of Article 311 which provides for procedural safeguards for civil servants.
Article 311 of the Constitution of India states that:
(1) No person who is a member of a civil service of the Union or an all-India service or a
civil service of a State or holds a civil post under the Union or a State shall be
dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except
after an inquiry in which he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges: Provided that
where, it is proposed after such inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the evidence adduced during such inquiry and
it shall not be necessary to give such person any opportunity of making representation
on the penalty proposed: Provided further that this clause shall not apply —

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 (a) where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in
rank is satisfied that for some reason, to be recorded by that authority in writing, it
is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the
interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is referred to in clause (2), the
decision thereon of the authority empowered to dismiss or remove such person or
to reduce him in rank shall be final."
Therefore, services of any civil servants cannot be terminated at pleasure unless the mandatory
provisions of Article 311 have been observed. This doctrine of pleasure is further restricted by
the general law of the land which empowers any civil servant to file suit in a court of law for
enforcing any condition of his service and for claiming arrears of pay. The power to dismiss at
pleasure any civil servant is not a personal right of the President or the Governor, as the case
may be. It is an executive power which is to be exercised at the advice of Council of Ministers.
Doctrine of Pleasure as contained in Article 310, being a constitutional provision cannot be
abrogated by any legislative or executive law; therefore Article 309 is to be read subject to
Article 310.
Restrictions
Under Indian Constitution several restrictions has been placed on Doctrine of Pleasure. They are
as follows:
1. The service contract entered between the civil servant and government may be
enforced.

2. The fundamental rights guaranteed under the constitution are restrictions on the
pleasure doctrine and therefore this doctrine cannot be resorted too freely and
unfairly, Articles 14, 15 and 16 of the Constitution imposed limitations on free

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 exercise of Pleasure Doctrine. Article 14 embodies the principle of reasonableness
the principle of reasonableness is anti-thesis of arbitrariness. In this way, Article
14 prohibits arbitrary exercise of power under pleasure doctrine. In addition to
article 14 of the constitution Article 15 also restricts arbitrary exercise of power in
matters of services. Article 15 prohibits termination of service on grounds of
religion, race, caste, sex or place of birth or any of them. Another limitation is
under Article 16(1) which obligates equal treatment and bars arbitrary
discrimination.
3. Further the doctrine of pleasure is subject to many more limitations and a number
of posts have been kept outside the scope of pleasure doctrine. Under the
constitution the tenure of the Judges of the High Courts and Supreme court, of the
comptroller and Auditor-General of India, of the Chief Election Commissioner
and the Chairman and Members of Public service commission is not at the
pleasure of the Government.
Thus, the general principle relating to civil services has been laid down under
Article 310 of the Constitution to the effect that government servants hold office
during the pleasure of the government and Article 311 imposes restrictions on the
privilege of dismissal at the pleasure in the form of safeguards.
Persons entitled to safeguard
Constitutional safeguards provided under Article 311 are not available to all the government
servants. The text of the Article refers to members of civil services of the Union or all- India
service of a State or hold a civil post under the Union or a State.
The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v. General Manager,
Hindustan Steel Limited, generally considered as to who are the persons entitled to the protection
of Article 311. The Court identified the following persons:
Persons who are members of:
(a) A civil service of the union; or
(b) An All India Service; or
(c) A civil service of a State; or

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 d. Hold a civil post under the Union or State.
Difficulties have always arisen in relation to the meaning and scope of ‘Civil Post’. Though this
expression has been interpreted in many ways there is no debate that Article 311(1) deals with
persons employed in the civil side of administration in contradistinction to defence. Supreme
Court in State of Assam v. Kanak Chandra Dutta laid down that civil post in Clause (1) means a
post not connected with the defence services and outside the regular civil services.
Further, in Parshottam Lal Dhingra v. Union of India AIR 1958 SC 36, the Supreme Court of
India has held that under Article 311 the safeguards are applicable to both permanent and
temporary servants.
Constitutional safeguard available to the civil servants
There are two constitutional safeguards provided under Article 311 of the Indian Constitution.
They are as follows:
1. Clause (1) of Article 311 addresses itself to the authority who can impose any of
the punishments of dismissal or removal.
According to this, no order of dismissal or removal can be made by an authority subordinate to
the appointing authority. But if the removing authority is of the same or co-ordinate rank or
grade as the appointing authority then, dismissal or removal by such authority is valid.
2. Clause (2) of Article 311 provides the procedural essentials to be followed before
dismissing, removing or reducing in rank.
Article 311(2) mandates the compliance of the Principles of Natural Justice. A
civil servant cannot be punished without:
(a) holding an enquiry; and
(b) informing the civil servant about the charges against him; and
(c) giving him a reasonable opportunity of being heard in respect of those charges.
The enquiry contemplated by Article 311(2) is generally known as departmental enquiry and the
Constitutional requirements for a proper enquiry within the meaning of Article 311(2) are
two-fold:
a) The civil servant must be informed of the charges against him; and
The civil servant against whom a accusation of misconduct is made must be

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 ‘Formally’ informed i.e to say those acts or omissions of the public servant which
are termed as Misconduct under the Service Rules usually referred to as Conduct
rules. But, acts or conduct not covered by such may still amount to misconduct. It
is fundamental and essence of the concepts of fair play and justice that a person
should know why he is being charged.
b) He must be afforded a reasonable opportunity of being heard in respect of those
charges.
Neither the General clauses Act nor the Constitution defines “reasonable
opportunity”. Reasonable opportunity here too refers to the rules according to
Principles of Natural Justice. Broadly, it implies an opportunity to deny the guilt
alleged in order to establish innocence, to defend by examining himself and his
witnesses.
Exceptions
The provision to Article 311 (2) provides for certain circumstances in which the procedure
envisaged in the substantive part of the clause need not be followed. These are as follows:
a) Where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his connection on criminal charge; or
b) Where the authority empowered to dismiss or remove a person or to reduce him in
rank is satisfied that for some reason to be recorded by that authority in writing, it
is not reasonably practicable to hold such inquiry; or
c) Where the president or the governor as the case may be, is satisfied that in the
interest of the security of the state it is not expedient to hold such inquiry.
Judicial Perspective
As we all know that rule emanating from the pleasure doctrine is that no servant of the Crown
can maintain an action against the Crown for any arrears of salary. The assumption underlying
this rule is that the only claim of the civil servant is on the bounty of the Crown and not for a
contractual debt. The Judicial perspective on Doctrine of Pleasure can be discussed in the
following cases:
The Supreme Court of India in State of Bihar v. Abdul Majid refused to follow this rule of the

74
Doctrine of pleasure. In this case sub-inspector of police was dismissed from service on the
ground of cowardice, was later reinstated in service. But the government contested his claim for
arrears of salary for the period of his dismissal. The Supreme Court in this case upheld his claim
arrears of salary on the ground of contract or quantum muruit i.e for the value of the service
rendered.
Similarly the Supreme Court the reiterated the above ruling in Om Prakash v. State of Uttar
Pradesh where it was held that when dismissal of a civil servant was found to be unlawful, he
was entitled to get his salary from the date of dismissal to the date when his dismissal was
declared unlawful.
Further in State of Maharashtra v. Joshi, it was held that a claim of arrears of salary was held to
be based on contract.
Further the judiciary has also acted as checks and balances on the arbitrary exercise of the power
of conferred by the doctrine on the president and the Governor. The Supreme Court in Jaswant
Singh v. State of Punjab held that in spite of finality of Article 311(3) the “finality can
certainly be tested in the court of law and interfered with if the action is found to be arbitrary or
malafide or motivated by extraneous considerations or merely a ruse to dispense with the
inquiry.
In Union of India v. Balbir Singh, the Supreme Court held that the Court can examine the
circumstances on which the satisfaction of the president or Governor. If the Court finds that the
circumstances have no bearing whatsoever on the security of State, the Court can hold that
satisfaction of the president or the Governor which is required for passing such an order has been
vitiated by wholly extraneous or irrelevant considerations.

Short Questions Answers

Q.1. Write a short note on Public Interest Litigation in India.
Or
Q.1 What is Social Action Litigation.
Ans. Introduction
"Public interest Litigation", in simple words, means, litigation filed in a court of law, for
the protection of "Public Interest", such as pollution, Terrorism, Road safety,
constructional hazards etc. PUBLIC INTEREST LITIGATION is not defined in any
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statute or in any act. It has been interpreted by judges to consider the intent of public at
large. Although, the main and only focus of such litigation is only "Public Interest" there
are various areas where a PUBLIC INTEREST LITIGATION can be filed.
Public Interest Litigation, in Indian law, means litigation for the protection of public
interest. It is litigation introduced in a court of law, not by the aggrieved party but by the
court itself or by any other private party. It is not necessary, for the exercise of the court's
jurisdiction, that the person who is the victim of the violation of his or her right should
personally approach the court. Public Interest Litigation is the power given to the public
by courts through judicial activism.
Such cases may occur when the victim does not have the necessary resources to
commence litigation or his freedom to move court has been suppressed or encroached
upon. The court can itself take cognizance of the matter and precede suo motu or cases
can commence on the petition of any public-spirited individual.
According to Black’s Law Dictionary "Public Interest Litigation means a legal action
initiated in a court of law for the enforcement of public interest or general interest in
which the public or class of the community have pecuniary interest or some interest by
which their legal rights or liabilities are affected."
History
PIL had begun in India towards the end of 1970s and came into full bloom in the 80s.
Justice V.R. Krishna Iyer and Justice PM. Bhagwati, honourable Judges of the Supreme
Court of India. They delivered some landmark judgements which opened up new vistas in
PIL.
In December 1979, Kapila Hingorani had filed a petition regarding the condition of the
prisoners detained in the Bihar jail, whose suits were pending in the court. The special
thing about this petition was that it was not filed by any single prisoner, rather it was filed
by various prisoners of the Bihar jail. The case was filed in the Supreme Court before the
bench headed by Justice P.N.Bhagwati. This petition was filed by the name of the
prisoner, Hussainara Khatoon, hence the petition came to be known as Hussainara
Khatoon Vs State of Bihar. In this case, the Supreme Court upheld that the prisoners

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should get benefit of free legal aid and fast hearing. Because of this case 40,000
prisoners, whose suits were pending in the court, were released from the jail. There after
many cases like this have registered in the Supreme Court. It was in the case of SP Gupta
vs Union of India that the Supreme Court of India defined the term "public interest
litigation" in the Indian Context.
The concept of Public Interest Litigation (PIL) is in consonance with the principles
enshrined in Article 39A of the Constitution of India to protect and deliver prompt social
justice with the help of law. Before the 1980s, only the aggrieved party could approach
the courts for justice. After the emergency era the high court reached out to the people,
devising a means for any person of the public (or an NGO) to approach the court
seeking legal remedy in cases where the public interest is at stake. Justice P. N.
Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in
court. Filing a PIL is not as cumbersome as a usual legal case; there have been instances
when letters and telegrams addressed to the court have been taken up as PILs and heard.
How to file a PIL
A PIL may be filed like a write petition. However, in the past the SC has treated even
letters addressed to the court as PIL. In People’s Democratic union v Union of India, a
letter addressed by the petitioner organization seeking a direction against the respondents
for ensuring observance of the provisions of famous labour laws in relation to workmen
employed in the construction work of projects connected with the Asian games was
entertained as a PIL. The SC has encouraged the filing of PIL for tackling issues related
to environment, human rights etc.
The traditional rule of “Locus Standii” that a person, whose right is infringed alone can
file a petition, has been relaxed by the Supreme Court in its recent decisions. Now, the
court permits public interest litigation at the instance of public spirited citizens for the
enforcement of constitutional legal rights. Now, any public spirited citizen can
move/approach the court for the public cause by filing a petition:
1. In Supreme Court under Art.32 of the Constitution;
2. In High Court under Art.226 of the Constitution; and

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In the Court of Magistrate under Sec.133, Cr. P.C.It is an extraordinary remedy available at a
cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute
for ordinary ones or as a means to file inconsequential complaints.

Very Short Questions Answers

Q.1. What is social interest litigation?
Or
Q.1. What is Public Interest Litigation?
Ans. The litigation whereas the interest of the society is protected by the courts and can be
initiated by any NGO's or any person who doesn't pursue his personal interest rather to
upheld or protect the interest of society is called Social Interest Litigation. Public Interest
Litigation is also the same as Social Interest Litigation and in India, it is Public interest
litigation which is adopted from USA's Social Interest Litigation and is in the same sense
and meaning of protecting the interest of larger masses or public at large.
Q.2. What is a tribunal?
Ans. Tribunal is an administrative body that practices the power to adjudicate. They are not
termed as ordinary courts. The word tribunal cannot be scientifically and precisely
defined. In the dictionary, the word ‘tribunal’ is the seat or bench that a judge or judges
sit in a court of justice. This definition is vast since it covers ordinary courts of law and
when it comes to administrative law, the meaning is bound to adjudicating authorities
besides ordinary courts of law. A tribunal is an authority that adjudicates and the power
of adjudication must be received from a statute and not from the agreement of parties.
Q.3. What is the difference between public interest litigation and writs?
Ans. A writ is the court’s command to an authority or a person to either perform an action or
refrain from doing it. Public Interest Litigation (PIL) is just another writ but in the
interest of the public. A PIL relates to the general public, unlike a writ and it is generally
signed upon by a number of people. It is easier to file a PIL before the court as compared
to the writs. The rule of locus standi is relaxed in case of public interest litigation. On the
other hand, it is a complicated task to file a writ before a court, along with being
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 expensive. This is because the rule of locus standi is followed in the case of writs.
Supreme Court issues the writs under Article 32 and 139 of the Constitution in the wake
of enforcement of Fundamental Rights. And it is the Article 226 which powers the High
Courts to issue writs. The PIL, on the other hand, are filed any individual or group
pertaining to some sort of inconvenience faced by a number of people.

Q.4. Discuss the importance of article 32 of the Indian constitution.

Ans. Article 32 was called the “soul of the constitution and very heart of it” by Dr. Ambedkar.
Supreme Court has included it in basic structure doctrine. Further, it is made clear that right to
move to Supreme Court cannot be suspended except otherwise provided by the Constitution.
This implies that this right suspended during a national emergency under article 359. Article 32
makes the Supreme Court the defender and guarantor of the fundamental rights. Further, power
to issue writs comes under original jurisdiction of the Supreme Court. This means that a person
may approach SC directly for remedy rather than by way of appeal. Article 32 can be invoked
only to get a remedy related to fundamental rights. It is not there for any other constitutional or
legal right for which different laws are available.

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 KAMKUS COLLEGE OF LAW
B.A.LL.B VIII SEM
ADMINISTRATIVE LAW
Code (BL-801)
Unit –V

Detailed Questions Answers

Q.1. Define injunction. How many kinds of injunction are there?
Ans. Injunction
An injunction is a legal remedy which is imposed by a court. In simple terms, an injunction
means that one of the parties to a certain action must either do something or refrain from doing
something. Once the court makes its decision, the parties must abide by the ruling. If the party
fails to adhere to the injunction, there can be stiff monetary penalties and even imprisonment in
certain instances.
An injunction is a judicial remedy by the court in form of a prohibitory order and is a preventive
relief. An order of Injunction prohibits the commission of a wrongful act that has either being
threatened of or has already begun its course of action. A party if fails to comply with the
Injunction Order granted by the competent court shall then face contempt of court or
civil/criminal proceedings against them. The injunction is an effective legal remedy to seek
restraint against unlawful acts.
Kinds

Temporary Injunction Perpetual/Permanent Injunction

Temporary Injunction
As per Section 37 (1), Specific Relief Act, 1963, ‘Temporary injunctions are such as are to
continue until a specific time, or until the further order of the court, and they may be granted at
any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908)’.

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Provisions of such Temporary Injunctions are set out in Section 94(c) and Order 39 Rule 1 of
Civil Procedure Code, 1908:
• According to Section 94 (c), A Court may, in some events, it feels required, may
grant a Temporary Injunction and in event of disobedience by the person, hold him
for contempt in a civil prison along with an attachment of property.
• Order 39 Rule 1, of Civil Procedure Code, 1908 states the cases in which Temporary
Injunctions may be granted:
¾ When it is proved that the property which is the subject matter of a dispute is
under a threat of being wasted, damaged or alienated by any other party, or maybe
wrongfully sold in execution of a decree
¾ When it is proved that the other party threatens or intends, to remove or dispose of
off his property with a view to defrauding his creditors
When the plaintiff may be disposed from the property in dispute
In such situations, the competent court may issue an order of Temporary Injunction, to either
maintain Status Quo or give such an order that may be in favor of one party till the time the
dispute is sub juice.
Perpetual Permanent Injunction
• As per Section 37 (2), Specific Relief Act, 1963, ‘A perpetual injunction can only be
granted by the decree made at the hearing and upon the merits of the suit; the
defendant is thereby perpetually enjoined from the assertion of a right, or from the
commission of an act, which would be contrary to the rights of the plaintiff’.
It is granted upon the final hearing, after carefully assessing the arguments of both
the parties, merits, evidence and all the other aspects of the dispute.
Section 38, Specific Relief Act mentions when such a type of injunction can be
granted:
• To prevent the breach of an obligation existing in his favour, whether it be express or
implied, subject to other provisions.
• When any such obligation arises from contract, the court may grant a perpetual
injunction, subject to the rules and provisions mentioned in Chapter II.

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 • When the defendant invades or threatens to invade the plaintiff’s right to, or
enjoyment of, property, the court may grant a perpetual injunction in the following
cases, namely
• where there is no standard for calculating the actual damage caused, or likely to
be caused, by the invasion
• where the invasion is such that monetary compensation will not be adequate
• Where the injunction is necessary to prevent a multiplicity of judicial
proceedings.
• where the defendant is a trustee of the property for the plaintiff.
In conclusion, the Injunctions are not a matter of right but a complete discretion of the court. The
court thus acts judicially as per facts of each case before granting an injunction.
Q.2. Who is ombudsman? What are its powers and functions?
Ans. Ombudsman
The meaning of Ombudsman is-an official appointed to investigate individuals’ complaints
against maladministration, especially that of public authority. The precise meaning of the term
Ombudsman is grievance officer. An Ombudsman is a public officer whose function is to
investigate the grievances, raised by citizens regarding maladministration of the authority. In
other words if there are gross lapses in the functioning of the public administration the citizens
have power to lodge complaint against the concerned authority. He is an officer of parliament.
The concept of Ombudsman at first originated in Sweden, a Scandinavian state, in 1809 more
than two centuries ago. From the beginning of the twentieth century the system began to draw
attention of several other European states.
Powers and Functions
1. An important function of Ombudsman is to protect the rights and freedoms of
citizens and needless to say that primarily for this purpose the post of ombudsman
was instituted.
2. In the Scandinavian countries the ombudsman has another function. The
ombudsman shall have the power to supervise the general civil administration. On
this point the duty of ombudsman is closely connected with the public

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 administration. Because the protection of freedom, execution of policies and other
fall within the jurisdiction of public administration and whether these are properly
performed or not that requires to be examined-and ombudsman does this job.
3. In many states Ombudsman or institution like this supervises the general
administration. It is also called general surveillance of the functioning of the
government. This is a very important function. Particularly in the Scandinavian
states the Ombudsman or person of this type performs this function. In these
countries the Ombudsman has been found to undertake tour for inspection.
4. In some countries the Ombudsman enjoys enormous power. For examples in
Sweden the Ombudsman has been empowered to investigate the cases of
corruption (in any form) not only against the government officers but also against
the judges of the highest court. But the supervising power of Ombudsman over
the judges does not erode the independence of the judiciary. The judges are
prosecuted or fined for corruption, negligence of duties, or delay in delivering
judgement.
5. In UK the Parliamentary Commissioner (British type of Ombudsman) also acts as
a Health Commissioner. In 1974 the British parliament enacted a law to enhance
the jurisdiction of Parliamentary Commissioner to the level of local government.
The local councillors can lodge complaints against the local body and can seek
redress of grievances.
6. An important function of Ombudsman is the exercise of discretionary powers.
The discretionary powers are really vast and how to use these powers depend
upon the person concerned. Discretionary powers include corruption, negligence,
inefficiency, misbehaviour etc.
Hence we find that the Ombudsman is a very important institution for the protection of
democratic rights and freedoms and to free the general administration from corruption and
inefficiency. In the Scandinavian countries the Ombudsman plays very crucial role. But the study
of British constitutional system reveals that the parliamentary commission does not play very

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important role. There is of course a reason. The British people are highly conscious of their
rights and freedoms and the common law is always in favour of British citizens.
Q.3. What is central vigilance commission? Explain in brief its appointment,
jurisdiction and functions.
Ans. Central Vigilance Commission
Corruption is one of the major worries that the citizens of a country, always, have in
them.Corruption has now become inevitable especially in the democracies where the power is in
too many hands. A country’s government should always be vigilant about their usage of money
because they are directly accountable to the citizens of that particular country. Vigilance means
to ensure clean and prompt administrative action towards achieving efficiency and effectiveness
of the employees in particular and the organization in general, as lack of Vigilance leans to
waste, losses and economic decline. The Indian Government created the Central Vigilance
Commission in 1964 in order to curb the corruptive practices in the administration.
Central Vigilance Commission (CVC) is an apex Indian governmental body created in 1964 to
address governmental corruption. In 2003, the Parliament enacted a law conferring statutory
status on the CVC. It has the status of an autonomous body, free of control from any executive
authority, charged with monitoring all vigilance activity under the Central Government of India,
advising various authorities in central Government organizations in planning, executing,
reviewing and reforming their vigilance work.
It was set up by the Government of India Resolution on 11 February 1964, on the
recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam
Committee, to advise and guide Central Government agencies in the field of vigilance. Nittoor
Srinivasa Rau, was selected as the first Chief Vigilance Commissioner of India.
The Annual Report of the CVC not only gives the details of the work done by it but also brings
out the system failures which leads to corruption in various Departments/Organisations, system
improvements, various preventive measures and cases in which the Commission's advises were
ignored etc.
Appointment

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The President of India appoints the Central Vigilance Commissioner and the Vigilance
Commissioners on the recommendation of the Prime Minister, Home Minister and the leader of
the opposition in the Lok Sabha. It clearly indicates that the appointments to CVC are indirectly
under the government’s control.
The Commission shall consist of-
• A Central Vigilance Commissioner - Chairperson;
• Not more than two Vigilance Commissioners - Members;
The commission aimed at preventing the corrupt practices by the officials by bringing out
reports on the failure of system which eventually lead to corruption.
Jurisdiction
The Vigilance Commission has advisory jurisdiction and powers in respect of matters to which
the executive power of the Centre extends. It can undertake any inquiry into any transaction in
which a public servant is suspected or alleged to have acted for an improper or corrupt purpose;
or cause such an inquiry or investigation to be made into any complaint of corruption, gross
negligence, misconduct, recklessness, lack of integrity or other kinds of mal-practices or
misdemeanours on the part of a public servant.The following categories of employees come
within the commission’s purview:
a) Gazetted Central Government officials;
b) Board level appointees in the public sector undertakings of the Central Government;
c) Officers of the rank of Scale-III and above in the public sector banks;
d) Officers of the rank of Assistant Manager and above in the Insurance Sector (covered
by LIC and GIC); and
e) Officers in autonomous bodies/local authorities or societies comparable in status to
that of the Gazetted Central Government officials.
It can have its jurisdiction over the employees of public sector undertakings, statutory
corporations, and port trusts etc. But these departments have to pass a formal resolution
accepting the commission’s jurisdiction.
Functions
The commission’s main concern is matters regarding corruption, misconduct, lack of integrity or
85
other kinds of malpractices or misdemeanours from the side of the Government servants. The
commission has only advisory jurisdiction. It cannot perform adjudicatory functions. The
commission cannot investigate or enquire into complaints of corruption except to a limited
extent.
• Exercise superintendence over the functioning of the Delhi Special Police
Establishment (CBI) insofar as it relates to the investigation of offences under the
Prevention of Corruption Act, 1988; or an offence under the Cr.PC for certain
categories of public servants.
• Give directions to the Delhi Special Police Establishment (CBI) for superintendence
insofar as it relates to the investigation of offences under the Prevention of
Corruption Act, 1988.
• To inquire or cause an inquiry or investigation to be made on a reference by the
Central Government
• To inquire or cause an inquiry or investigation to be made into any complaint
received against any official belonging to such category of officials specified in
sub-section 2 of Section 8 of the CVC Act, 2003.
• Review the progress of investigations conducted by the DSPE into offences alleged
to have been committed under the Prevention of Corruption Act, 1988 or an offence
under the Cr.PC
• Review the progress of the applications pending with the competent authorities for
sanction of prosecution under the Prevention of Corruption Act, 1988
• Tender advice to the Central Government and its organizations on such matters as
may be referred to it by them.
• Exercise superintendence over the vigilance administrations of the various Central
Government Ministries, Departments and Organizations of the Central Government.
• Shall have all the powers of a Civil Court while conducting any inquiry.
• Respond to Central Government on mandatory consultation with the Commission
before making any rules or regulations governing the vigilance or disciplinary

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 matters relating to the persons appointed to the public services and posts in
connection with the affairs of the Union or to members of the All India Services.
• The Central Vigilance Commissioner (CVC) is the Chairperson and the Vigilance
Commissioners (Members) of the Committee, on whose recommendations, the
Central Government appoints the Director of Enforcement.
• The Committee concerned with the appointment of the Director of Enforcement is
also empowered to recommend, after consultation with the Director of Enforcement
appointment of officers to the posts of the level of Deputy Director and above in the
Directorate of Enforcement.
• The Central Vigilance Commissioner (CVC) is also the Chairperson and the
Vigilance Commissioners (Members) of the Committee empowered to recommend
after consultation with Director (CBI), appointment of officers to the post of the level
of SP and above except Director and also recommend the extension or curtailment of
tenure of such officers in the DSPE (CBI).
Q.4. With the help of decided cases discuss the tortuous liability of state.
Ans. Tortuous Liability of State
Under the English Common Law, the maxim was “The King can do no wrong” and therefore,
the King was not liable for the wrongs of its servants. But, in England, the position of old
Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King
could not be sued in tort either for wrong actually authorized by it or committed by its servants,
in the course of employment. Unlike the Crown Proceedings Act, 1947 (England), we do not
have any statutory provisions mentioning the liability of the State in India. The law in India
with respect to the liability of the State for the tortious acts of its servants has become entangled
with the nature and character of the role of the East India Company prior to 1858. It is,
therefore, necessary to trace the course of development of the law on this subject, as contained
in article 300 of the Constitution.
The position of State liability as stated in Article 300 of the Constitution is as under:
Clause (1) of Article 300 of the Constitution provides first, that the Government of India may
sue or be sued by the name of the Union of India and the Government of a State may sue or be

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sued by the name of the State; secondly, that the Government of India or the Government of
a State may sue or be sued in relation to their respective affairs in the like cases as the
Dominion of India and the corresponding Provinces or the corresponding Indian States might
have sued or be sued, “if this Constitution had not been enacted”, and thirdly, that the second
mentioned rule shall be subject to any provisions which may be made by an Act of Parliament
or of the Legislature of such State, enacted by virtue of powers conferred by the Constitution.
Consequently, one has to uncover the extent of liability of the East India Company in order to
understand the liability parameters of the administration today because the liability of the
administration today is in direct succession to that of the East India Company.
The East India Company launched its career in India as a purely commercial corporation but
gradually acquired sovereignty. Therefore, in the beginning, the company did not enjoy the
immunity of the Crown. It was only when it acquired political powers that a distinction was
made between sovereign and non- sovereign functions.
Some judgments during British Rule India, do tell us, how the law of administrative tortious
liability evolved in Indian conditions.
In P. and O. Steam Navigation Co. v. Secy. Of State for India [(1861) the Supreme Court
allowed an action against the secretary of state for the negligent act of the government workers.
In this case, the workers employed by the Kidderpore Dockyard, which was a government
dockyard, were carrying iron bars across a public way passing through the port, which bars they
dropped on the road. The noise so created scared the horses of the carriage in which the
plaintiff was sitting and he sustained injuries. Sir Barnes Peacock, C.J. who delivered the
judgment of the court, held that Company had been invested with sovereign functions but this
did not make it a sovereign authority.
The term ‘sovereign’ and ‘non-sovereign’ function created confusion in the later development
of the law, as has been Peacock C.J., held, “It is clear that East India Company would not have
been liable for any act of any of its naval officers in seizing as prize property of a subject,
under the supposition that it was the property of an enemy, nor for any act done by a military
or naval officer, or by any soldier or sailor whilst engaged in military or naval duty, nor for
any acts of any of its officers or servants in the exercise of judicial and sovereign functions.”

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The evolution of law in this field was predominantly restricted to judicial pronouncements,
even after the independence of India.
In State of Rajasthan v. Vidyawati (Mst.) [AIR 1962 SC 933], the Supreme Court of India held
the State vicariously liable for the tort committed by its servants. The facts of the case were that
in February 1952, a driver of the government jeep, while driving back from the workshop,
knocked down a person on the footpath, causing multiple injuries including fracture of the skull
and the backbone, which resulted in his death. A suit by the widow of the deceased and her
minor daughter for compensation was decreed by the trial judge against the driver but not
against the State. On appeal, the High Court decreed the suit against the State also.
Hence, State of Rajasthan, went in appeal before the Supreme Court. The main argument on
behalf of the State was that it was not liable for tortious acts of its employees for in similar
circumstances the East India Company would not have been liable, as the jeep was maintained
in the exercise of sovereign powers and not as a part of the commercial activity of the
state. Sinha, C.J., dismissing the appeal by the State of Rajasthan held that the immunity rule of
the Crown in England cannot be applied in India. Holding, the state vicariously liable for the
tortious acts of its servants. More importantly, the distinction between sovereign and
non-sovereign functions for the purpose of determining the State liability was not recognized,
and the only immunity which the state could have claimed was ‘acts of state’.
Unfortunately, only 3 years later, in Kasturi Lal v. State of U.P. [AIR 1965 SC 1039], the
Supreme court, speaking through J. Gajendragadkar, re emphasized on the difference between
Sovereign and Non-sovereign functions. The facts involved that the plaintiff was going to
Meerut to sell good, silver other goods. As he was passing through the city, he was taken into
custody by three policemen. He was searched and all the gold and silver was taken into custody
and he was put in the lock-up. On his release, his gold was not returned, though silver was
immediately returned. The gold had been misappropriated by the Head Constable who fled to
Pakistan. The Court held, that State is not liable because the functions of arrest and the seizure
of the property are sovereign functions of the state. If the act is sovereign, no act of negligence
on the part of employees of the State would render State liable.

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The distinction between sovereign and non-sovereign functions is a juristic blasphemy which
leads to absurd and arbitrary conclusions. There is no uniformity in decisions, and it becomes
very complex to determine which function is sovereign. Differences of Opinion is clear in
different judgments rendered by High Courts and Supreme Court.
In Rudul Shah v. State of Bihar, [AIR 1983 SC 1086], the Court speaking through Justice
Chandrachud, provided compensation to the person who was under illegal detention for more
than 14 years. The Court ordered compensation of Rs. 30,000 for the injustice and injury did to
Rudul Shah and his helpless family, because of the wrong actions of officials of the
Government.
The Court similarly granted monetary compensation in the case of Nilabati Behra v. State of
Orissa [AIR 1993 SC 1960] and spelt out the principles on the liability of the State in the case
for payment of compensation for the tort so committed and also held, that if no other redress is
available then the government is strictly liable to pay the victim the monetary compensation for
breach of fundamental rights of the victim by State or its employees.
In Bhim Singh v. State of J.K. [1985 4 SCC 677], the Supreme Court awarded the exemplary
cost of Rs. 50,000 on account of the authoritarian manner in which the police played with the
liberty of the appellant.
In N. Nagendra Rao & Co. v. State of A.P. [1994 6 SCC 205], the Court reiterated that the
doctrine of sovereign immunity stands diluted in the context of the modern concept of
sovereignty and thus the distinction between sovereign and non-sovereign functions no longer
survives. The court observed that state is immune only in cases of facts of State like a defense
of the country, administration of justice, maintenance of law and order and repression of crime
except when article 21 of the constitution are breached. IN this case, the court also confirmed
the principle of personal liability of the negligent officer.
Though the court has recognized the Governmental liability under tort law, but most of the
cases have been fought with the sword of fundamental rights, hence the justice is meted out,
because in Indian Conditions, getting Compensation for torts is cumbersome and time taking
process, and problem aggravates when one of the party is the state itself.

Short Questions Answers

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Q.1. Write a short note on Lok Pal.

Ans. Lok Pal

The word "Lokpal" is derived from the sanskrit word "loka" meaning people and "pala" meaning
protector or caretaker. Together it means "protector of people". The aim of passing such a law is
it to eradicate corruption at all levels of the Indian polity. For a nation to develop it needs to have
an extremely well organized and meticulously planned organization. A failure of the
administrative set up reflects on the holistic growth of the state, the biggest reason for the failure
of the administration can be attributed to the ill effects of corruption. The growth of the country
has been plagued by corruption and it has extended its wings through out the entire
administrative set up. To root out the menace of corruption the institution of "ombudsman" came
up and has played a great role in fighting administrative malpractices.
Historical Background
the institution of ombudsman originated in scandinavian countries. The institution of
ombudsman first came into being in sweden in 1713 when a "chancellor of justice" was
appointed by the king to act as an invigilator to look into the functioning of a war time
government. From 1713 the duty of this ombudsman was to mainly ensure the correct conduct of
royal officials. The institution of the ombudsman was firmly incorporated into the Swedish
constitution from 1809.
It was defined as the parliamentary body supervising judges, government and other officials, and
ensuring their compliance with laws and other legal regulations.
The embedding of the ombudsman in the constitution was completed by a further law specifying
in greater detail the scope of his activities and his legal authority.The institution of the
ombudsman developed and grew most significantly in the 20th century. Ombudsman institutions
were on the increase especially in the period after the Second World War when almost a hundred
of them were established. The institutions took varied forms and modifications depending on the
historical, political and social background of the given country.
In India the ombudsman is known as lokpal or lokayukata.The concept of constitutional
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ombudsman was first proposed by the then law minister Ashok Kumar Sen in parliament in the
early 1960s.The term lokpal and lokayukta were coined by Dr.L.M.Singhvi as the indian model
of ombudsman for the redresser of public grievances, it was passed in loksabha In the year 1968
but it was lapsed with dissolution of lok sabha and since then has lapsed in the lok sabha many
times.
Need For Lokpal
There are several deficiencies in our anti-corruption systems because of which despite
overwhelming evidence against the corrupt, no honest investigation and prosecution takes place
and the corrupt are hardly punished. The whole anti-corruption set up ends up protecting the
corrupt.
1) Lack of Independence Most of our agencies like CBI, state vigilance departments, internal
vigilance wings of various departments, Anti-corruption Branch of state police etc are not
independent. In many cases, they have to report to the same people who are either themselves
accused or are likely to be influenced by the accused.
2) Powerless some bodies like CVC or Lokayuktas are independent, but they do not have any
powers. They have been made advisory bodies. They give two kinds of advise to the
governments – to either impose departmental penalties on any officer or to prosecute him in
court. Experience shows that whenever any minister or a senior officer is involved, their advice
is rarely followed.
3) Lack of Transparency and internal accountability In addition, there is the problem of internal
transparency and accountability of these anti-corruption agencies. Presently, there isn’t any
separate and effective mechanism to check if the staff of these anti-corruption agencies turns
corrupt. That is why, despite so many agencies, corrupt people rarely go to jail. Corruption has
become a high profit zero risk business. There is absolutely no deterrence against corruption.
4) Lack of Transparency and internal accountability In addition, there is the problem of internal
transparency and accountability of these anti-corruption agencies. Presently, there isn’t any
separate and effective mechanism to check if the staff of these anti-corruption agencies turns
corrupt. That is why, despite so many agencies, corrupt people rarely go to jail. Corruption has

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become a high profit zero risk business. There is absolutely no deterrence against corruption. Our
anti-corruption laws also have several critical deficiencies, which end up protecting the corrupt.
Lokpal and Lokayukta Act, 2013
The Lokpal and Lokayukta Act, 2013 seeks to provide for the establishment of Lokpal for the
Union and Lokayukta for States to inquire into allegations of corruption against certain public
functionaries and for related matters. The act extends to whole of India, including Jammu &
Kashmir and is applicable to "public servants" within and outside India. The act mandates for
creation of Lokpal for Union and Lokayukta for states. The Bill was tabled in the Lok Sabha on
22 December 2011 and was passed by the House on 27 December as The Lokpal and Lokayuktas
Bill, 2011. It was subsequently tabled in the Rajya Sabha on 29 December. After a marathon
debate that stretched until midnight of the following day, the vote failed to take place for lack of
time. On 21 May 2012, it was referred to a Select Committee of the Rajya Sabha for
consideration. It was passed in the Rajya Sabha on 17 December 2013 after making certain
amendments to the earlier Bill and in the Lok Sabha the next day. It received assent from
President Pranab Mukherjee on 1 January 2014 and came into force from 16 January.
Structure of lokpal
The institution of Lokpal is a statutory body without any constitutional backing. Lokpal is a
multimember body, made up of one chairperson and maximum of 8 members.The person who is
to be appointed as the chairperson of the Lokpal should be either the former Chief Justice of
India Or the former Judge of Supreme Court Or an eminent person with impeccable integrity and
outstanding ability, having special knowledge and expertise of minimum 25 years in the matters
relating to anti-corruption policy, public administration, vigilance, finance including insurance
and banking, law and management.
Out of the maximum eight members, half will be judicial members. Minimum fifty per cent of
the Members will be from SC / ST / OBC / Minorities and women. The judicial member of the
Lokpal should be either a former Judge of the Supreme Court or a former Chief Justice of a High
Court. The non-judicial member should be an eminent person with impeccable integrity and
outstanding ability, having special knowledge and expertise of minimum 25 years in the matters
relating to anti-corruption policy, public administration, vigilance, finance including insurance

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and banking, law and management. The members are appointed by the president on the
recommendation of a selection committee. The selection committee is composed of the Prime
Minister who is the Chairperson; Speaker of Lok Sabha ,Leader of Opposition in Lok Sabha
,Chief Justice of India or a Judge nominated by him / her, and One eminent jurist.
Jurisdiction of lokpal
The jurisdiction of the Lokpal will include the Prime Minister except on allegations of corruption
relating to international relations, security, the public order, atomic energy and space and unless
a Full Bench of the Lokpal and at least two-thirds of members approve an inquiry. It will be held
in-camera and if the Lokpal so desires, the records of the inquiry will not be published or made
available to anyone. The Lokpal will also have jurisdiction over Ministers and MPs but not in the
matter of anything said in Parliament or a vote given there. Lokpal’s jurisdiction will cover all
categories of public servants.
Group A, B, C or D officers defined as such under the Prevention of Corruption Act, 1988 will
be covered under the Lokpal but any corruption complaint against Group A and B officers, after
inquiry, will come to the Lokpal. However, in the case of Group C and D officers, the Chief
Vigilance Commissioner will investigate and report to the Lokpal. However, it provides adequate
protection for honest and upright Public Servants.Also any person who is or has been in charge
(director / manager/ secretary) of anybody / society set up by central act or any other body
financed / controlled by central government and any other person involved in act of abetting,
bribe giving or bribe taking.
Powers
1) It has powers to superintendence over, and to give direction to CBI.
2) If it has referred a case to CBI, the investigating officer in such case cannot be transferred
without approval of Lokpal.
3) Powers to authorize CBI for search and seizure operations connected to such case.
4) The Inquiry Wing of the Lokpal has been vested with the powers of a civil court.
5) Lokpal has powers of confiscation of assets, proceeds, receipts and benefits arisen or procured
by means of corruption in special circumstances
6) Lokpal has the power to recommend transfer or suspension of public servant connected with

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allegation of corruption.
7) Lokpal has power to give directions to prevent destruction of records during preliminary
inquiry.

Very Short Questions Answers

Q.1. What is the difference between public interest litigation and writs?
Ans. Writs are filed by individuals/corporates and other persons for reliefs in their own causes
whereas the PILs are applications filed by any citizen for remedying the hardships faced by the
public at large. PIL is not defined in any statute. It is the outcome of judicial activism to take
cognisance of a cause at the instance of any person (whether he is personaslly affected or not)
affecting the public at large. It is an exception to the doctrine of Locus Standi applicbale to
actions in courts of law.
PIL is writ only but PIL means litigation in the interest of public and not in the interest of the
litigant.
It is also important to understand basic difference between a regular Writ Petition and PIL Writ
Petition.
Whenever a person affected by any illegal act or omission of Public Officials or of any Public
office, he may approach the High Court for issue of appropriate Writ (authoritative direction).
However a person may approach the High Court for issue of appropriate Writ in the larger public
interest even when he is directly not affected by illegal acts or omissions of Public Officials. I
hope the difference is quite visible.
Can a Writ Petition be treated as a Public Interest Litigation?
Yes, a writ petition filed by the aggrieved person, whether on behalf of group or together with
group can be treated as a PUBLIC INTEREST LITIGATION however,
The writ petition should involve a question, which affects public at large or group of people, and
not a single individual.
Only the effected /aggrieved person can file a writ petition.
There should be a specific prayer, asking the court to direct the state Authorities to take note of
the complaint /allegation.

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Writs refers to constitutional remedy for all citizens under art 226. These can be in the nature of
habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose, where the
complainant can directly approach the high court.
PIL stands for public interest litigation. Earlier it was only a person whose interest was directly
affected along with others, whereby his fundamental right is affected who used to file such
litigation. Now, the trend has changed, and, any Public-spirited person can file a case (PUBLIC
INTEREST LITIGATION) on behalf of a group of person, whose rights are affected. It is not
necessary, that person filing a case should have a direct interest in this PUBLIC INTEREST
LITIGATION
Petition is a complaint filed by any aggrieved person for, award of remedy by court. Known also
as ‘case’.
Writ: A formal, written order issued by the Court, which is to be obeyed by the
individual/authority to whom it is addressed.
The Indian Constitution provides for writs for the enforcement of Fundamental Rights. High
Courts can issue writs for purposes other than the Fundamental Rights, while the Supreme Court
can only issue writs for the enforcement of Fundamental Rights.
Writs are of various types, such as Habeas Corpus, Mandamus, Certiorari, etc.
PIL (Public Interest Litigation): A writ filed by an individual in the interest of the public at large
(rather than in the interest of the litigant, who might or might not have been affected). The main
objective of a PIL is to protect public interest.
So, a PIL is a writ, but not all writs are PILs.
Seeing relief on legal grounds. For example, a petition seeking issuance of a writ is known as a
writ petition.

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