RENAISSANCE UNIVERSITY

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UNIT I

Scope & Development of Administrative Law

SYNOPSIS

1. Introduction
2. Administrative Law-Definition, Nature, Scope and Functions
3. Growth of Administrative Law in India
4. Rule of Law
5. Separation of Powers

INTRODUCTION
Administrative law is the bye-product of the growing socio-economic functions of the State and the
increased powers of the government. Administrative law has become very necessary in the developed
society, the relationship of the administrative authorities and the people have become very complex. In
order to regulate these complex, relations, some law is necessary, which may bring about regularity
certainty and may check at the same time the misuse of powers vested in the administration. With the
growth of the society, its complexity increased and thereby presenting new challenges to the
administration we can have the appraisal of the same only when we make a comparative study of the
duties of the administration in the ancient times with that of the modern times. In the ancient society the
functions of the state were very few the prominent among them being protection from foreign invasion,
levying of Taxes and maintenance of internal peace & order. It does not mean, however that there was no
administrative law before 20th century. In fact administration itself is concomitant of organized
Administration. In India itself, administrative law can be traced to the well-organized administration
under the Mauryas and Guptas, several centuries before the Christ, following through the administrative,
system of Mughals to the administration under the East India Company, the precursor of the modern

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administrative system. But in the modern society, the functions of the state are manifold, In fact, the
modern state is regarded as the custodian of social welfare and consequently, there is not a single field of
activity which is free from direct or indirect interference by the state. Along with duties, and powers the
state has to shoulder new responsibilities. The growth in the range of responsibilities of the state thus
ushered in an administrative age and an era of Administrative law. The development of Administrative
law is an inevitable necessity of the modern times; a study of administrative law acquaints us with those
rules according to which the administration is to be carried on. Administrative Law has been
characterized as the most outstanding legal development of the 20th-century.

Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties,
rights and liabilities of the various organs of the Government. The rapid growth of administrative Law in
modern times is the direct result of the growth of administrative powers. The ruling gospel of the 19th
century was Laissez faire which manifested itself in the theories of individualism, individual enterprise
and self help. The philosophy envisages minimum government control, maximum free enterprise and
contractual freedom. The state was characterized as the law and order state and its role was conceived to
be negative as its internal extended primarily to defending the country from external aggression,
maintaining law and order within the country dispensing justice to its subjects and collecting a few taxes
to finance these activities. It was era of free enterprise. The management of social and economic life was
not regarded as government responsibility. But laissez faire doctrine resulted in human misery. It came to
be realized that the bargaining position of every person was not equal and uncontrolled contractual
freedom led to the exploitation of weaker sections by the stronger e.g. of the labour by the management in
industries. On the one hand, slums, unhealthy and dangerous conditions of work, child labour wide spread
poverty and exploitation of masses, but on the other hand, concentration of wealth in a few hands, became
the order of the day. It came to be recognized that the state should take active interest in ameliorating the
conditions of poor. This approach gave rise to the favoured state intervention in and social control and
regulation of individual enterprise. The state started to act in the interests of social justice; it assumed a “
positive” role. In course of time, out of dogma of collectivism emerged the concept of “ Social Welfare
State” which lays emphasis on the role of state as a vehicle of socio-economic regeneration and welfare of
the people. Thus the growth of administrative law is to be attributed to a change of philosophy as to the
role and function of state. The shifting of gears from laissez faire state to social welfare state has resulted
in change of role of the state. This trend may be illustrated very forcefully by reference to the position in
India. Before 1947, India was a police state.

Administrative law essentially deals with location of power and the limitations thereupon. Since both of
these aspects are governed by the constitution, we shall survey the provisions of the constitution, which

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act as sources of limitations upon the power of the state. This brief outline of the Indian constitution will
serve the purpose of providing a proper perspective for the study of administrative law.

Administrative Law-Meaning – Sir Ivor Jonning defines Administrative Law as the Law relating to
administration. It determines the organization, powers and duties of administrative authorities.

According to Dr. F.J. Port-“Administrative law is made up of all these legal rules either formally expressed by
statute or implied in the prerogative-which have as their ultimate object the fulfillment of public law. It
touches first the legislature, in that the formally expressed rules are usually laid down by that body; it touches
judiciary, in that

(a) there are rules which govern the judicial action that may be brought by or against administrative person,

(b) administrative bodies are sometimes permitted to exercise judicial powers: thirdly, it is of course
essentially concerned with the practical application of Law.”

The Administrative law deals with composition and powers of different organs of administration, the
procedure with the administrative authorities shall adopt in the exercise of their powers and the various
modes of control including particularly judicial control over the different kinds of powers exercised by the
administrative authorities. In short the administrative law deals with the powers, particularly quasi-judicial
and quasi legislative of administrative authorities along with their executive powers and their control.

Nature and Scope of Administrative Law-

Nature - Administrative law is study of multifarious powers of administrative authorities and the nature of
their power can be studies under the following three heads

Nature of Administrative Law

1. Legislative or Rule making Judicial or Adjudicatory

Purely Executive

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Nature and Definition of administrative law
Law Administrative Law is, in fact, the body of those which rules regulate and control the administration.
Administrative Law is that branch of law that is concerned with the composition of power, duties, rights
and liabilities of the various organs of the Government that are engaged in public administration. Under it,
we study all those rules laws and procedures that are helpful in properly regulating and controlling the
administrative machinery. There is a great divergence of opinion regarding the definition/conception of
administrative law. The reason being that there has been tremendous increase in administrative process
and it is impossible to attempt any precise definition of administrative law, which can cover the entire
range of administrative process.

Austin has defined administrative Law. As the law, which determines the ends and modes to which the
sovereign power shall be exercised? In his view, the sovereign power shall be exercised either directly by
the monarch or directly by the subordinate political superiors to whom portions of those are delegated or
committed in trust.

Holland regards Administrative Law “one of six” divisions of public law. In his famous book
“Introduction to American Administrative Law 1958”,

Bernard Schawartz has defined Administrative Law as “the law applicable to those administrative
agencies which possess of delegated legislation and ad judicatory authority.”

Jennings has defined Administrative Law as “the law relating to the administration. It determines the
organization, powers and duties of administrative authorities.”

Dicey in 19th century defines it as.

Firstly, portion of a nation’s legal system which determines the legal statues and liabilities of all State
officials.

Secondly, defines the right and liabilities of private individuals in their dealings with public officials.

Thirdly, specifies the procedure by which those rights and liabilities are enforced. This definition suffers
from certain imperfections. It does not cover several aspects of administrative law, e.g. it excludes the
study of several administrative authorities such as public corporations which are not included within the
expression “State officials,” it excludes the study of various powers and functions of administrative
authorities and their control. His definition is mainly concerned with one aspect of administrative. Law,

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namely, judicial control of public officials. A famous jurist Hobbes has written that there was a time when
the society was in such a position that man did not feel secured in it. The main reason for this was that
there were no such things as administrative powers. Each person had to live in society on the basis of his
own might accordingly to Hobbes, “In such condition, there was no place for industry, arts, letters and
society. Worst of all was the continual fear of danger, violent death and life of man solitary poor, nasty
and brutish and short.

Need for the Administrative Law: It’s Importance &

Functions
The emergence of the social welfare has affected the democracies very profoundly. It has led to state
Activism. There has occurred a phenomenal increase in the area of sate operation; it has taken over a
number of functions, which were previously left to private enterprise. The state today pervades every
aspect of human life. The functions of a modern state may broadly be placed into five categories, viz, the
state as:-

•= protector,

•= provider,

•= entrepreneur,

•= economic controller and

•= arbiter.

Administration is the all-pervading feature of life today.

The province of administration is wide and embraces following things within its ambit:-

•= It makes policies,

•= It provides leadership to the legislature,

•= It executes and administers the law and

•= It takes manifold decisions.

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•= It exercises today not only the traditional functions of administration, but other varied types of
functions as well.

•= It exercises legislative power and issues a plethora of rules, bye- laws and orders of a general nature.

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SCOPE OF ADMINISTRATIVE LAW

Existence of various administrative bodies-such as, Wage-board, CentralBoard of Revenue,
Commission of Inquiry and Advisory Boards, Tariff
Commission, etc.

Rule making power of administrative agencies- i.e. delegated legislation;

safeguard against abuse of power and judicial control.

Judicial functions of administrative agencies like Administrative tribunalsi.

e., claims Tribunals Industrial Tribunal, the Income Tax Appellate Tribunal
performing judicial functions.

Remedies- Various remedies like writs of Mandamus, Certiorari, Prohibition

etc., injunction, declaration etc. are available to prevent excess any abuse of
power.

Procedural guarantees- The concept of procedural guarantee include the rules

of nature justice.

Government Liability- The Union and State Governments are liable under torts
as well as control for the wrongs committed by their servant and agents.

Public Corporation- It includes liability ad legal responsibility of public

corporation.

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Growth of Administrative law in India-

In India a system of both administrative legislation and adjudication were in existence from very
early time. But in early British India, executive had the overriding powers in the matter of
administration of justice During the British rule in India, the executive was invested with such
wide powers to make rules as a modern democratic legislature cannot even imagine. In that
period though the court had ample powers to set aside an administrative action, yet paid great
respect and attention to their decisions. Judicial relief was available only when the administrative
remedies were exhausted.

The Law Commission in its XIVth Report has traced the reasons for the
growth of administrative law in the following words-

“Society in the 20th century has become exceedingly complex and

governmental functions have multiplied. The change in the scope and
character of the Government from negative to positive, that is, from the
laissez faire to the public service state has resulted in the concentration
of considerable power in the hands of the executive branch of
Government.

RULE OF LAW

Dicey concept
Dicey is one of the well known jurists of England and he has written a famous book “Law of the
Constitution”. One should know the difference between administrative law and the rule of law.
People who are in government job have different law from ordinary citizens and the rule of law is
equal for everyone whether he is Prime minister of India or a normal clerk working in an office. The

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same law will be applicable to both of them, no discrimination will be done under the rule of law and
rule of law is supreme in nature.

Dicey was against making different rules for a different class of people so he stood by against this
concept and promoted the idea of Rule of law. Here a term is used “Droit administrative” was
introduced by Napoleon and in France, it was known as Droit Administratif. France was having
separate administrative court for dealing with the matter. According to this action by the citizens
against an official for a wrongful act committed in their official capacity will be dealt by the special
court not by the ordinary courts of law. Droit administratif does not consist of rules and law made by
the French parliament but it includes a rule which is developed by the judges of the administrative
court.

The doctrine of Rule of law has 3 meaning in Dicey book.

3. The
1. Supremacy 2. Equality
predominance
of law. before the law.
of a legal spirit.

Rule of law
Rule of law is a product of struggle by the people from centuries for recognition of their inherent
rights and the concept of a rule is very ancient and old. During the ancient times, the concept of rule
of law was discussed by the Greek philosopher Aristotle and Plato at the time of 350 BC so now you
can imagine how old this concept. Plato has written that if rule of law under the supervision of any
law than it doesn’t have any value and the concept of state will get collapsed and if the law is master
of government and government work as a slave for law then the concept of state will work effectively
and humans can enjoy their rights.

According to Plato the meaning of rule of law is that it is supreme in nature and nobody is above the
law.

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According to Aristotle has written that law should be the final sovereign of the state.

According to Sir Edward Coke “Rule of Law” means the absence of arbitrary power on the part of
Government.

This phrase was derived from the French phrase “la Principe de legality” which means that the
principle of legality whatever the legal system principle is called a rule of law. Which refers to
government is based on the principles not on any individuals and according to the law everything
will move. Rule of law is the basic principle of the English constitution and this doctrine is accepted
by the US and as well as India also.

The entire basis of Administrative law is the Rule of law and delegated legislation is the backbone of
administrative law.

Basic Principles of Rule of Law

1. Law is supreme and nobody is above the law.
2. All the things should be done according to a law not as per whim.
3. No person should be suffered except for the breach of law.
4. Absence of arbitrary is the soul of the rule of law.
5. Equality before the law and equal protection of the law.
6. Speedy trial.
7. The fair and just procedure should be conducted.
8. Independent and impartial judiciary.
Kesavananda Bharati vs. the State of Kerala under this case the principle of Basic Structure was
propounded and it was said that any part of the Constitution can be amended without disturbing the
basic structure of it.

Indira Nehru Gandhi vs. Raj Narain, the court held that rule of law is also part of the basic structure
and in the list rule of law was also added and it means that no amendment can be done in rule of law.

The State of Bihar vs. Sonawati Kumari, it is an integral part of Rule of law that all the authority
within the State including executive government should be bound to obey the rules.

In case of Bachan Singh vs. the State of Punjab, popularly known as “Death Penalty Case” the rule
of law is free from arbitrary action if anywhere any action is done with arbitrary power then it will be
considered as the denial of the concept of Rule of Law.

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In case of Som Raj vs. State of Haryana, that absence of arbitrary power is absolute motive of the
principle of rule of law upon which directly the whole Constitution is dependent.

SEPARATION OF POWER

The concept of separation of powers is the rudimentary element for the governance of a democratic
country. This principle corroborates fairness, impartiality and uprightness in the workings of a
government. Although it is not followed in its strict sense yet, most of the democratic countries have
adopted its diluted version under their respective constitutions.

Meaning
The concept of separation of powers refers to a system of government in which the powers are
divided among multiple branches of the government, each branch controlling different facet of
government. In most of the democratic countries, it is accepted that the three branches are the
legislature, the executive and the judiciary. According to this theory, the powers and the functions of
these branches must be distinct and separated in a free democracy. These organs work and perform
their functions independently without the interference of one into others in order to avoid any kind of
conflict. It means that the executive cannot exercise legislative and judicial powers, the legislature
cannot exercise executive and judicial powers and the judiciary cannot exercise legislative and
executive powers.

Objectives of Separation of Powers

The following are the fundamental objectives of the doctrine of separation of powers:-

1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an

accountable and democratic form of government.
2. Secondly, it prevents the misuse of powers within the different organs of the government.
The Indian Constitution provides certain limits and boundaries for each domain of the
government and they are supposed to perform their function within such limits. In India,
the Constitution is the ultimate sovereign and if anything goes beyond the provisions of
the constitution, it will automatically be considered as null, void and unconstitutional.
3. Thirdly, it keeps a check on all the branches of the government by making them
accountable for themselves.
4. Fourthly, separation of powers maintains a balance among the three organs of government
by dividing the powers among them so that powers do not concentrate on any one branch
leading to arbitrariness.

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5. Fifthly, this principle allows all the branches to specialize themselves in their respective
field with an intention to enhance and improve the efficiency of the government.

Elements of Separation of Powers

Legislative Executive Judiciary

Legislative
The legislative organ of the government is also known as the rule-making body. The primary
function of the legislature is to make laws for good governance of a state. It has the authority of
amending the existing rules and regulations as well. Generally, the parliament holds the power of
making rules and laws.

Executive
This branch of government is responsible for governing the state. The executives mainly implement
and enforce the laws made by the legislature. The President and the Bureaucrats form the Executive
branch of government.

Judiciary
Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the
legislature and safeguards the rights of the individuals. It also resolves the disputes within the state or
internationally.

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Separation of Powers in Practice

U.K. Constitution
The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept of
separation of powers is applied in the UK but not in its rigid sense because the UK has an unwritten
constitution. The Crown is the head of the state whereas the Prime Minister is recognised as the head
of the government. The executive and the legislature are somehow interconnected to one another.

The executive powers are exercised by the Crown through his government. Thus, the Crown is the
nominal head and the real executive powers vest in the Prime Minister and the other Cabinet
Ministers. The UK parliament is bicameral and divided into two houses – The House of Commons
and House of Lords. The Parliament is the sovereign rule-making body in the UK. The Prime
Minister and the other cabinet ministers are also a part of The House of Commons. The government
is answerable to the Parliament. Practically, the executive is controlled by the House of Commons.
The Judiciary, however, is independent of executive control. But the judges of the Supreme Court
can be removed on the address of both the houses if found with any charge of corruption.

Thus, we can conclude that the UK constitution has incorporated the separation of powers just to
keep checks and balances among the three organs of the government but there exist some kind of
interference of one organ in the other.

U.S. Constitution
The US has a written constitution and governed by the Presidential form of government. The
cornerstone of the Constitution of the United States is the doctrine of separation of powers. This
concept is well-defined and clear under the American Constitution.

• Article I – Section 1 of the American Constitution states that –

“ All the legislative powers are vested in Congress.”

• Article II – Section 1 of the American Constitution states that –

“ All the executive powers are vested in the President.”

• Article III – Section 1 of the American Constitution states that –

“ All the judicial powers are vested in the federal courts and the Supreme Court.”

The President and his ministers are the executive authority and they are not members of the
Congress. The ministers are accountable to the President only and not to the Congress. The tenure of
the President is fixed and independent of the majority in Congress.

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Congress is the sovereign legislative authority. It consists of two houses- Senate and House of
Representative. The impeachment of the President can be done by Congress. The treaties entered by
the President are to be approved by the Senate. The Supreme Court of the USA is independent. It
may declare any action of the executive as well as the legislature as unconstitutional if found so.
Thus, it appears as if the powers of the three organs exist in a watertight compartment but actually it
is not so.

1. President interferes in the functioning of Congress by exercising his veto power. He also
makes the appointment of the Judges thus, interfering in judicial powers.
2. Similarly, Congress interferes in the powers of the Courts by passing procedural laws,
making special courts and by approving the appointment of the judges.
3. The judiciary, by exercising the power of judicial review interferes in the powers of
Congress and the President.
In Panama Refining Company v. Ryan[1], Justice Cardozo observed that:-

“ the doctrine of separation of power is not a dogmatic concept. It cannot be imposed with strictness.
There must be elasticity in its application with respect to the needs of the government. Therefore, a
practical approach to this theory is required.”

Australian Constitution
Australia is governed by a federal parliamentary constitutional monarchy system. The Australian
Constitution had borrowed the concept of separation of power from the U.S. Constitution. The first
three chapters of the Australian Constitution defines the three different organs of the government- the
legislative, the executive and the judiciary. The legislative branch includes the Parliament of
Australia, the executive comprises of the Queen, Governor-General, Prime Minister and other
ministers.

Australia has a bicameral parliament consisting of the Queen (represented by the governor-general),
the Senate and the House of Representatives. The executive powers vest in the Governor-General
who is advised by the Federal Executive Council. The judicial power lies in the hands of the federal
courts and the High Court of Australia which is the supreme judicial authority.

Like the U.S. and U.K., Australia also does not have complete separation of powers. Though, a
system of checks and balances has been evolved. Some roles and powers of the three organs overlap-

• The judges, Prime Minister and other ministers are appointed by the Governor-General.
• The Prime Minister and other ministers are members of the parliament as well as the
executive.
It was held by the High Court of Australia in the case of Victorian Stevedoring v. Dignan[2], that-

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“ It was not at all possible to maintain the consistency of the British tradition of strict classification
of the organs of the government. The legislative and the executive branch cannot work
independently. A responsible government can’t be established by the strict separation of legislature
and executive. The legislature can delegate its lawmaking power to the executive whenever
required.”

Indian Constitution and Separation of Power

Like the United Kingdom, India also practices the parliamentary form of government in which
executive and legislature are linked to each other. So, the doctrine of separation of powers is not
implemented in its strict sense. However, the composition of our constitution creates no doubt that
the Indian Constitution is bound by the separation of powers. There are various provisions under the
Indian Constitution that clearly demonstrate the existence of the doctrine of separation of powers.
This principle is followed both at the centre and the state level.

Provisions that Substantiate Separation of Power

• Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive
powers of the Union and the States are vest in the President and Governor respectively
and shall only be exercised directly by him or through his subordinate officers.
• Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire
in the proceedings of Parliament and the State Legislature. This ensures that there will be
no interference of the judiciary in the legislature.
• Article 105 and Article 194 of the Indian Constitution specify that the MPs and MLAs
cannot be called by the court for whatever they speak in the session.
• Article 50 of the Indian Constitution encourages the separation of judiciary from the
executive in the states.
• Article 245 of the Indian Constitution gives authority to Parliament and State Legislature
for making laws for the whole country and the states respectively.
• Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of
any judge of the Supreme Court or High Court shall not be discussed in Parliament or
State Legislature.
• Article 361 of the Indian Constitution specifies that the President and the Governor are
not accountable to any court for exercising their powers and performance of duties in his
office.

Judicial Approach towards Separation of Power

in India
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The court has interpreted the applicability of the doctrine of separation of power in India in many
case laws.

• The very first judgment with relation to the separation of powers was given by Mukherjee
J. in the case of Ram Jawaya Kapur v. State of Punjab[3]. He concluded that-
“ The Constitution of India has not acknowledged the doctrine of separation of power emphatically
but the functions and powers of all the organs have been adequately distinguished. Thus it would not
be wrong to say that Indian constitution does not behold assumptions rather it works in a flexible
manner considering the needs of the country. So, the executive can exercise the law-making power
only when delegated by the legislature and it is also empowered to exercise judicial powers within
the limits. But on an all, no organ should exercise its power beyond the provision of the
constitution.”

• In the case of Indira Nehru Gandhi v. Raj Narain[4], Ray C. J. said:-

“ A rigid sense of separation of powers which has been given under the American and Australian
constitution does not apply to India.”

Beg J. further added that:-

“ The separation of power is a part of the basic structure of the constitution. So, the schemes of the
constitution cannot be changed even after restoring Article 368 of the Indian Constitution.”

• In Golak Nath v. State of Punjab[5], it was observed by Subba Rao C.J. that:-
“ The three organs of the government have to exercise their functions keeping in mind certain
encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the three
organs minutely and expects them to be exercised within their respective powers without
overstepping their limits. All the organs must function within the spheres allotted to them by the
constitution. No authority which is created by the constitution is supreme. The constitution of India is
sovereign and all the authorities must function under the supreme law of the land i.e. the
Constitution.”

• Das J. talked about separation of powers in the case of A. K. Gopalan v. State of

Madras[6]:-
“ Although the constitution has imposed some limitations on the three organs of the government, it
has left our parliament and state legislature supreme in their respective fields. In the main, subject to
the limitations, our constitution has preferred the supremacy of legislature to that of the judiciary
and the court has no authority to question the wisdom or policy of the law duly made by the
appropriate legislature and this is the basic fact which the court must not outlook.”

• In Asif Hameed v. State of Jammu and Kashmir[7], the Supreme Court observed that:-
“ Though the constitution has not recognized the doctrine of separation of powers in its absolute
rigidity, the drafters of the constitution have diligently defined the powers and functions of various
organs. The legislature, executive and judiciary have to function within their own domain prescribed
by the constitution. No organ may arrogate the functions allotted to another.”

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Unit II
Administrative Functions & Discretion

SYNOPSIS

1) Classification of Administrative Functions

2) Administrative Discretion

3) Natural Justice

CLASSIFICATION OF ADMINISTRATIVE
FUNCTIONS
The Classification of the administrative action is the much needed for the good governance. In Halsbury's Laws of
England also, it is stated that howsoever term ‘the Executive’ or ‘the Administration’ is employed, there is no
implication that the functions of the executive are confined exclusively to those of executive or administrative
character. Today, the executive performs variegated functions, viz. to investigate, to prosecute, to prepare and to
adopt schemes, to issue and cancel licences, (administrative); to make rules, regulations and bye-laws, to fix prices,
(legislative); to adjudicate on disputes, to impose fine and penalty, etc. (judicial) Schwartz rightly states that rule-
making (quasi legislative) and adjudication (quasi-judicial) have become the chief weapons in the administrative
armory.

NEED FOR CLASSIFICATION

A question which arises for our consideration is whether the function performed by the executive authorities are
purely administrative, quasi-judicial or quasi-legislative in character. The answer is indeed difficult, as there is no
precise, perfect and scientific test to distinguish these functions from one another. Administrative and quasi-
judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and
present an appearance of an administrative or quasi-judicial activity. A further difficulty arises in a case in which a
single proceeding may at times combine various aspects of the three functions. The courts have not been able to
formulate any definite test for the purpose of making such classification. Yet, such classification is essential and
inevitable as many consequences flow from it, e.g. if the executive authority exercises a judicial or quasi-judicial
function, it must follow the principles of natural justice and is amenable to a writ of certiorari or prohibition, but if
it is a legislative or quasi-legislative function, natural justice has no application. If the action of the executive
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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. An exercise of legislative power may not be
held invalid on the ground of unreasonableness, but an administrative decision can be challenged as being
unreasonable. It is, therefore, necessary to determine what type of function the administrative authority performs.

Classification of Administrative Actions

(a) Legislative Functions-
o Rule making action or quasi-legislative action
o Legislative power which in administrative law parlance is known as Delegated
Legislation.
(b) Rule decision action or quasi- judicial action- Adjudicative power
(c) Rule-application action or administrative action.
(d) Ministerial action or pure administrative action- Administrative power which is non - legislative and non-
adjudicative power

(a)Legislative Functions
Legislative functions of the executive consist of making rules, regulations, bye-laws, etc. It is, no doubt, true that
any attempt to draw a distinct line between legislative and administrative functions is difficult in theory and
impossible in practice. Though difficult, it is necessary that the line must be drawn as different legal rights and
consequences ensue.
As Schwartz said, “If a particular function is termed ‘legislative’ or ‘rule-making’ rather than ‘judicial’ or
‘adjudication’, it may have substantial effects upon the parties concerned. If the function is treated as legislative in
nature, there is no right to a notice and hearing unless a statute expressly requires them.”
In the leading case of Bates v. Lord Hailsham, Megarry, J. observed that “the rules of natural justice do not run in
the sphere of legislation, primary or delegated.” Wade also said, “There is no right to be heard before the making
of legislation, whether primary or delegated, unless it is provided by statute.” Fixation of price, declaration of a
place to be a market yard, imposition tax, establishment of Municipal Corporation under the statutory provision,
extension of limits of a town area committee, etc. are held to be legislative functions.
Rulemaking action of the administration partakes all the characteristics which in normal legislative action
processes. Such characteristics maybe generality, prospectivity, and a behaviour which basis action on policy
consideration and gives a right or a disability. These characteristics are not without exception.

JUDICIAL FUNCTION
According to the Committee on Ministers’ Powers, a pure judicial function presupposes an existing dispute
between two or more parties and it involves four requisites
1. The presentation (not necessarily oral) of their case by the parties to the dispute;
2. If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the parties to the
dispute and often with the assistance of argument by or on behalf of the parties, on evidence;
3. If the dispute between them is a question of law, the submission of legal argument by the parties;
4. A decision which disposes of the whole matter by finding upon the facts in dispute and ‘an application of the law
of the land to the facts found, including, where required, a ruling upon any disputed question of law.’ Thus, these
elements are present, the decision is a judicial decision even though it might have been made by any authority other
than a court, e.g. by Minister, Board, Executive Authority, Administrative Officer or Administrative Tribunal.

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The word ‘quasi’ means ‘not exactly.’ Generally, an authority is described as ‘quasi- judicial’ when it has some of
the attributes or trappings of judicial functions, but not all. In the words of the Committee on Ministers’ Powers,
“the word ‘quasi’, when prefixed to a legal term, generally means that the thing, which is described by the word,
has some of the legal attributes denoted and connoted by the legal term, but that it has not all of them” e.g. if a
transaction is described as a quasi-contract, it means that the transaction in question has some but not all the
attributes of a contract.

DISTINCTIONS BETWEEN JUDICIAL AND QUASI JUDICIAL FUNCTIONS

A quasi-judicial function differs from a purely judicial function in the following respects
(1) A quasi-judicial authority has some of the trappings of a court, but not all of them; nevertheless, there is an
obligation to act judicially.
(2) A lis inter parties is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial
function.
(3) A court is bound by the rules of evidence and procedure while a quasi-judicial authority is not.
(4) While a court is bound by precedents, a quasi-judicial authority is not.
(5) A court cannot be a judge in its own cause (except in contempt cases), while an administrative authority vested
with quasi-judicial powers may be a party to the controversy but can still decide it.

DISTINCTIONS BETWEEN ADMINISTRATIVE AND QUASI JUDICIAL FUNCTIONS

Actions of an administrative authority may be purely administrative or may be legislative or judicial in nature.
Decisions which are purely administrative stand on a wholly different footing from judicial as well as quasi-
judicial decisions and they must be distinguished. This is a very difficult task. “Where does the administrative end
and the judicial begin The problem here is one of demarcation and the courts are still in the process of working it
out.
One of the major grounds on which a function can be called ‘quasi-judicial’ as distinguished from pure
‘administrative’ is when there is a lis inter parte and an administrative authority is required to decide the dispute
between the parties and to adjudicate upon the lis. Prima facie, in such cases the authority will regarded as acting in
a quasi-judicial manner. Certain administrative authorities have been held to be quasi-judicial authorities and their
decisions regarded as quasi-judicial decisions, wherein such lis was present, e.g. a Rent Tribunal determining ‘fair
rent’ between a landlord and tenant, an Election Tribunal deciding an election dispute between rival candidates, an
Industrial Tribunal deciding an industrial dispute, a Licensing Tribunal granting a licence or permit to one of the
applicants. But it is not in all cases that the administrative authority is to decide a lis inter partes.
There may be cases in which an administrative authority decides a lis not between two or more contesting parties
but between itself and another party. But there also, if the authority is empowered to take any decision which will
prejudicially affect any person, such decision would be a quasi-judicial decision provided the authority is required
to act judicially. Thus, where an authority makes an order granting legal aid, dismissing an employee, refusing to
grant, revoking, suspending or cancelling a licence, cancelling an examination result of a student for using unfair
means, rusticating of a pupil, etc. such decisions are quasi-judicial in character. In all these cases there are no two
parties before the administrative authority, ‘and the other party to the dispute, if any, is the authority’ itself. Yet, as
the decision given by such authority adversely affects the rights of a person there is a situation resembling a lis. In
such cases, the administrative authority has to decide the matter objectively after taking into account the objections
of the party before it, and if such authority exceeds or abuses its powers, a writ of certiorari can be issued against it.
Therefore, Lord Greene, M.R. rightly calls it a ‘quasi-lis.’ Duty to act judicially The real test which distinguishes a
quasi-judicial act from an administrative act is the duty to act judicially, and therefore, in considering whether a
particular statutory authority is a quasi-judicial body or merely an administrative body, what has to be ascertained
is whether the statutory authority has the duty to act judicially. The question which may arise for our consideration
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is as to when this duty to act judicially arises. As observed by Parker, J. “the duty to act judicially may arise in
widely different circumstances which it would be impossible, and indeed, inadvisable, to attempt to define
exhaustively.” Whenever there is an express provision in the statute itself which requires the administrative
authority to act judicially, the action of such authority would necessarily be a quasi-judicial function. But this
proposition does not say much, for it is to some extent a tautology to say that the function is quasi-judicial (or
judicial) if it is to be done judicially. Generally, statutes do not expressly provide for the duty to act judicially and,
therefore, even in the absence of express provisions in the statutes the duty to act judicially should be inferred from
‘the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective
criterion to be adopted, the phraseology used, the nature of the power conferred, of the duty imposed on the
authority and the other indicia afforded by the statute. Since ‘fairness in action’ is required from Government and
all its agencies, the recent trend is from ‘duty to act judicially’ to ‘duty to act fairly.’ ‘Duty to act fairly’ is indeed a
broader notion and can be applied even in those cases where there is no lis. It is this concept (‘duty to act fairly’),
which has given rise to certain new doctrines, e.g. ‘fair play in action’, legitimate expectations, proportionality etc.

Administrative discretion: Meaning

Discretion in simple words means choosing among the different alternatives available without
respect to any predetermined criterion, irrespective of how fanciful that choice may be. The
administrative discretionary issue is complex. Really, the government cannot work in any
intensive form of government without the officials exercising some discretion. It is important not
only for the individualization of the administrative power but also because in the dynamic nature
of modern state it is humanly impossible to lay down a guideline for every imaginable
eventually. Equally true, however, is that absolute power is a merciless master. It is more
destructive of liberty than any other technology made by man.
In simple terms, discretion means the ability to choose an option from the various, or at least two,
alternatives available. In the administrative law sense, it can be simply said to be the ability of the
administrative authority to pick and choose from the alternatives available before it.

Sir Edward Coke defined discretion as the knowledge to distinguish between falsity and truth, or
right and wrong, without resorting to any personal reasons. In the case of Susannah Sharp v.
Wakefield, Lord Halsbury opined that when something is left to administrative discretion, it means
that it has to be done in accordance with the principles of justice and reason and not on the basis of
the private opinion of the authority concerned.

It can be said that in pursuance of administrative discretion, the authority in question has to take
decisions not only on the basis of the evidence and is also bound to consider the policy and
expediency.

There are three main heads under which the control over administrative discretion exercised.
1. Parliamentary Control over administrative discretion
2. Judicial Control over administrative discretion
3. Procedural and Executive Control
Parliamentary control over Administrative Discretion
There are several grounds of parliamentary control.
1. Direct General Control – The first form of parliamentary control shall be exercised at the time the
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enabling act is passed. This is Parliamentary hearings that are of a general and direct control sort. In
India, different methods and procedures are used, such as discussions on the delegation bill, which
include aspects such as requirement, scope, form of delegation and authority delegated to. In addition,
any Member can ask questions on any aspect of the delegation of legislative powers and, if
disappointed, may give notice of discussion under Rule 59 of the Rules of Procedure and Conduct of
Business in Lok Sabha. Budget cuts during grant voting and committee debates through private
member’s Bill requesting changes to the parent act or through a debate at the time of the President’s
speech to. The joint parliamentary sessions are also useful. Yet in India as well as in the UK. Those
methods are seldom employed. This is due solely to a lack of tradition or experience. However,
scholars think that this approach should be used widely and efficiently to nip delegation vices in the
bud.
2. Direct Special Control – Prominent among these remedies is the “laying on the table” method,
which demands that administrative “laws” rendered under delegated authority be submitted for
approval to the legislature. Under direct control, laying is an important and necessary feature, and it is
laid down in compliance with the law, which ensures that it should be put before Parliament after
making the regulation. It contains three important parts to be exercised according to. The degree of
control required.
• Simple Laying
• Negative Laying
• Affirmative Laying

And two key tests are “Mandatory test” & “Directory test.”

i. Mandatory testing – Where laying demand is a condition pattern to direct the rule into effect, then laying need is
compulsory in such a case. Where the clause that the rules should be drafted in a particular format is specified then it
becomes mandatory to adopt the format.

ii. Directory test – If the laying prerequisite is next to enforce the rule, it will be a directory in nature.

3. Indirect control – This is a power every Parliament and its committees exercise. Subordinate legislation is
another term for such form of committee. The committee’s principal job is to investigate.

• Whether rule are according to general object of the act.

• It bars the jurisdiction of the court in direct or indirect ways.
• Whether it has retrospective effect or not.
• Whether it safeguard or destroy the Principle of Natural Justice.
• Expenditure involved in it is from Consolidated fund.

Administrative discretion and Fundamental Rights in India

As has been mentioned above, there has been a growing tendency in the modern welfare states to leave a
great amount of discretion with the administrative officials. This development is quite disturbing as it has
been realized that administrative discretion weakens judicial control over executive action, especially in
countries like England where there is Parliamentary sovereignty and the legislature can freely delegate any
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amount of discretion to the executive. However, unlike England, where the judicial control can be exercised
over administrative discretion only on the basisof law relating to torts or breach of contract, or on allegations
that the power has been exercised in mala fide manner or that it has been abused; in India, the situation is
somewhat better. In India, the constitutional courts can test the validity of the exercise of administrative
discretion not only on the common law principles, as they exist in England, but can also be tested against the
touchstone of fundamental rights, which can be used to ensure procedural as well as substantive safeguards.
The important provisions of the Constitution in this regard are Articles 14, 19, and Article 22 of Indian
Constitution.

Article 22 lays down the various safeguards which the authorities have to abide by in cases of
preventive detention of any person. However, the judicial control over preventive detentions in India
is quite superficial and is concerned only with ensuring procedural safeguards and does not dwell
into the scrutiny of grounds for putting a person into preventive detention or dealing with the
question that whether the grounds said to be justifying preventive detention are correct or not, or
other substantive questions.

Article 14 of the Indian Constitution, which confers the right to equality upon the people, and which
prohibits class legislation is a good source for judicial scrutiny of administrative discretion and has
been frequently invoked. The general judicial view is that any conferment of discretion to authority
without being regulated by any rules and regulation is arbitrary and hence violative of Article 14 of
the Indian Constitution.

Articles 19(2) to 19(6) lay down specific grounds on which reasonable restrictions can be imposed so
as to impair the exercise of the fundamental freedoms guaranteed by Article 19(1). As mentioned
above, while the constitutional courts have only superficial control over the discretion available to
the authority in preventive detention cases, but regarding the freedoms guaranteed by Article 19, the
constitutional courts have been very strict in dealing with unfettered discretion given to
administrative authorities to impair the enjoyment of the freedoms guaranteed by Article 19.

In the case of Shreya Singhal v. Union of India, the Supreme Court struck down Section 66-A of the
Information Technology Act, 2000 on the ground that it gave unfettered discretion to the executive,
in the absence of an elaborate definition of the words used in the provision, to initiate criminal
prosecution against any person who caused annoyance in an indecent manner, a vague offense. In the
case of State of Madhya Pradesh v. Baldeo Prasad, the Supreme Court struck down Section 4-A of
the Central Provinces and Berar Goondas Act, 1946 as amended by the Madhya Pradesh Act XLIX
of 1950, on the ground that it provided a vague definition of goonda, and gave unlimited discretion to
the executive authority to treat any person as goonda and deprive him of his rights guaranteed by
Articles 19(1)(d) and 19(1)(e).

The Supreme Court has consistently emphasized that the statute allowing the executive the discretion
to impose restrictions should clearly define the principle on which the restrictions are to be imposed,
the time frame for which they can be imposed, and the person who is aggrieved by the acts of the
executive should have the opportunity to make a representation before the authority. But, in some
cases, it has been seen that the Supreme Court has failed to uphold its own judgments on this issue.

One such example is the Jammu and Kashmir internet blockade case, whereby the Supreme Courtabdicated its job.

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Judicial Review of Administrative Discretion

Usually, the constitutional courts do not ordinarily interfere, owing to the lack of expertise to
exhaustively deal with the subject matter at hand, with the decisions taken by any administrative
authority in the exercise of its power of administrative discretion. However, it does not mean that the
courts cannot call into question any exercise of administrative discretion by any authority, however
wholly illegal it may be. It simply means that though the courts won’t ordinarily interfere with the
decisions of administrative authority taken in the exercise of its discretion, yet, the legislature must
refrain from giving unfettered discretionary powers to administrative authorities, in which case the
courts will have to intervene.

In India, courts interfere with the discretionary powers of administrative authority in following two
situations – firstly, failure of the authority to exercise the discretion given to it and secondly, abuse of
discretion by the authority.

Failure of the authority to exercise the discretion available to it deals with situations in which the
authority has sub-delegated its authority to someone else though there is no such express provision
which directs it to do so, non-application of mind by the authority, cases of power coupled with duty,
imposing fixed rules in each case instead of judging each case on its merit, etc.

Abuse of Administrative Discretion

Wherever discretion has been conferred upon an administrative authority, it must act within the
confines of the law and exercise its discretion in accordance with the law. The expression abuse of
administrative discretion, simply put, refers to situations whereby the administrative authority has
exercised the discretion available to it in an unreasonable or improper manner. In such cases, the
court may intervene and issue the requisite direction in the case.

The grounds on which judicial review can be sought for alleged abuse of administrative discretion
are as follows:

• Administrative authority acts in a domain in which it does not have jurisdiction.

• The authority acts in excess of the jurisdiction given to it by the legislature.
• The authority has attempted to do indirectly what it is not allowed to do directly i.e., the
colorable exercise of power.
• Irrelevant considerations have been taken into account by the authority while arriving at a
conclusion.
• Relevant considerations have not been taken into account by the authority while arriving
at a conclusion.

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• The action of the authority is arbitrary.
• The authority has acted in a mala fide manner.
• Non-adherence to the principles of natural justice.
• Unreasonableness.
• The law from which the authority derives its discretion is colorable legislation.

NATURAL JUSTICE
Introduction
Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman
law and it is closely related to Common law and moral principles but is not
codified. It is a law of nature which is not derived from any statute or
constitution. The principle of natural justice is adhered to by all the citizens of
civilised State with Supreme importance. In the ancient days of fair practice, at
the time when industrial areas ruled with a harsh and rigid law to hire and fire,
the Supreme court gave its command with the passage of duration and
establishment of social, justice and economy statutory protection for the
workmen.

Natural justice simply means to make a sensible and reasonable decision

making procedure on a particular issue. Sometimes, it doesn’t matter what is
the reasonable decision but in the end, what matters is the procedure and who
all are engaged in taking the reasonable decision. It is not restricted within the
concept of ‘fairness’ it has different colours and shades which vary from the
context.

Basically, natural justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or party who is
affected by the decision made by the panel of expert members should be given
a fair opportunity to express his point of view to defend himself.

Secondly, “Bias rule” generally expresses that panel of expert should be biased
free while taking the decision. The decision should be given in a free and fair
manner which can fulfil the rule of natural justice.

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And thirdly, “Reasoned Decision” which states that order, decision or
judgement of the court given by the Presiding authorities with a valid and
reasonable ground.

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of
biases. Bias means an act which leads to unfair activity whether in a conscious
or unconscious stage in relation to the party or a particular case. Therefore, the
necessity of this rule is to make the judge impartial and given judgement on the
basis of evidence recorded as per the case.

Types of Bias
1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

Personal bias
Personal bias arises from a relation between the party and deciding authority.
Which lead the deciding authority in a doubtful situation to make an unfair
activity and give judgement in favour of his person. Such equations arise due to
various forms of personal and professional relations.

In order to challenge the administrative action successfully on the ground of

personal bias, it is necessary to give a reasonable reason for bias.

Supreme court held that one of the members of the panel of selection
committee his brother was a candidate in the competition but due to this, the
whole procedure of selection cannot be quashed.

Here, to avoid the act of biases at the turn of his brother respective panel
member connected with the candidate can be requested to go out from the

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panel of the selection committee. So, a fair and reasonable decision can be
made. Ramanand Prasad Singh vs. UOI.

Pecuniary bias
If any of the judicial body has any kind of financial benefit, how so ever small it
may be will lead to administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject
matter of a particular case.

Muralidhar vs. Kadam Singh The court refused to quash the decision of
Election tribunal on the ground that the chairman’s wife was a member of
Congress party whom the petitioner defeated.

Departmental bias
The problem or issue of departmental bias is very common in every
administrative process and it is not checked effectively and on every small
interval period it will lead to negative concept of fairness will get vanished in the
proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The
audience sitting over there does not expect judges to sit with a blank sheet of
paper and give a fair trial and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable
condition. This new category emerged from a case where a judge of Calcutta
High Court upheld his own judgement in appeal. A direct violation of the rules of
bias is done because no judge can sit in appeal against in his own case.

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Unit III

Growth & Development of Delegated

Legislation

SYNOPSIS
1. Importance, Need and Constitutionality of Delegated
Legislation
2. Controls on Delegated Legislation
3. Parliamentary Control
4. Judicial Control

Introduction
In the realm of legal theory, delegated legislation is one of the most debatable
issues because of its various implications. Indian democracy is said to rest on
the acclaimed four pillars and these are the legislature, the executive, the
judiciary, and the press. These pillars are empowered by the constitution not to
interfere in the matters of others. As per the Constitution, the legislative has
legislative powers and the Executive has the power to execute the laws.
Similarly, the Judiciary has the power to resolve dispute and to met out justice.
But we have to keep in mind that there are multifarious functions that have to
be performed by the Legislature in welfare states and it is not an easy task for
the legislature to look after every matter.

In contrast to this increasing legislative activity, the legislatures are not able to
find adequate time to legislate on every minute detail. They have limited
themselves to policy matters and have left a large volume of area to the
Executive to make rules to carry out the purposes of the Legislature. In such
types of situation, the system of delegated legislation comes to our mind.
Therefore, the need for delegation is necessary and is sought to be justified on
the ground of flexibility, adaptability and speed. This delegation is also known
as ‘secondary legislation’ or ‘subordinate legislation’. The Act that gives the
executive the power to legislate is called the ‘Enabling Statute’ or ‘Parent Act’.

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The standard of rule of the majority has made authoritative controls
inadequate. The term delegated legislation is hard to characterize.

Meaning of delegated legislation

‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting
a person with the power or empowering him to act on behalf of that person who
has given him that power or to act as his agent or representative. ‘Delegated
legislation’ means exercising of legislative power by an agent who is lower in
rank to the Legislature, or who is subordinate to the Legislature. Delegated
legislation, additionally alluded to as an auxiliary legislation, is an enactment
made by an individual or body other than Parliament. Parliament, through an
Act of Parliament, can allow someone else or some body to make enactment. An
Act of Parliament makes the system of a specific or particular law and tends to
contain an outline of the purpose for the Act. By delegating the legislation by
Parliament to the Executive or any subordinate, it empowers different people or
bodies to integrate more details to an Act of Parliament. Parliament along these
lines, through essential enactment (for example an Act of Parliament), licenses
others to make laws and guidelines through delegated legislation. The
enactment made by authorize person must be made as per the reason set down
in the Act of Parliament.

According to Sir John Salmond, “Subordinate legislation is that which

proceeds from any authority other than the sovereign power.”

Justice P.B Mukherjee also observed about delegated legislation that it was
an expression which covered a multitude of confusion. He viewed it as an
excuse for the Legislature, a shield for Executors and a provocation to the
Constitutional Jurist.

According to M.P Jain, this term can be used in two senses:[1]

• Exercise by subordinate agency or agency that is lower in rank to

legislature delegated to it by the Legislature.

• The Subsidiary rules made by the Subordinate Authority in the

execution of the power bestowed on it by the Legislature.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative
legislation, and Quasi-Legislation.

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Types of Delegated Legislation

by-laws.

orders
in
council
statutory
instrument

Statutory instruments
They are the one which is formed by the government. For example – a parent
act is an act which permits the parliament for making the law. Orders in the
council are generally made by the government when there is a need and it can
affect the public at large as well as an individual.

By-Laws
They are created by the local authority which is approved by the Central
Government. There are many reasons for the delegation of the legislature. The
parliament does not have that much time to deliberate and debate about every
topic. Therefore, delegated legislation helps in making laws rapidly than the
Parliament and the procedure of the Parliament is also very slow as the bills for
every law needs to pass from every stage. Further, it is also believed that the
Member of Parliament does not possess the technical ability which is required to
make law.

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Factors responsible for the rapid growth of Delegated

Legislation
• Pressure on Parliament – The number of activities in states is
expanding which requires law and it is not possible for the Parliament
to devote sufficient time to every matter. Therefore for this, the
Parliament has made certain policies which allows the executives to
make laws accordingly.
• Technicality – Sometimes there are certain subject matters which
requires technicality for which there is a requirement of the experts
who are professional in such fields and members of Parliament are not
experts for such matters. Therefore, here such powers are given to
experts to deal with such technical problems like gas, atomic, energy,
drugs, etc.
• Flexibility – It is not possible for the Parliament to look after each
contingency while passing an enactment and for this certain provisions
are required to be added. But the process of amendment is very slow
as well as the cumbersome process. Thus, the process of delegated
legislation helps the executive authority to make laws according to the
situation. In the case of bank rate, policy regulation, etc., they help a
lot in forming the law.
• Emergency – At the time of emergency, it is not possible for the
legislative to provide an urgent solution to meet the situation. In such
case delegated legislation is the only remedy available. Therefore, in
the times of war or other national emergencies, the executives are
vested with more powers to deal with the situation.
• The complexity of modern administration – With the increasing
complexity in modern administration and the functions of the state
being expanded and rendered to economic and social spheres too,
there is a need to shift to new reforms and providing more powers to
different authorities on some specific and suitable occasions. In a
country like Bangladesh, where control over private trade, business or
property may be needed to be imposed, and for implementation of
such a policy so that immediate actions can be taken, it is needed to
provide the administration with enough power.

And so, therefore for immediate and suitable actions to be taken there has been
an immense growth of delegated legislation in every country and being that
important and useful it becomes a non-separable part in the modern
administrative era.

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Advantages of Delegated Legislation

• Save time for the legislature.
• Allow for flexibility.
• Expert opinion is required in legislation.
• Parliament is not always present in the session.
• Used as an experimental basis.
• It is restored to use it in a situation of emergency.
• Can be easily Settle down with consulting the required party of the
case.

Criticism of Delegated Legislation

• It has a long duration of bearing for legislative control because the
legislature is the supreme organ of the state as it consists of three
main organs which are: Judiciary, Legislative and Executive.
• All of them have to work with or in relation to each other and it should
be done in a balanced way on the basis of power given to each organ
for working effectively. Instead of various advantages, delegated
legislation has weakened the legislative control executive.
• The executive has become stronger with delegated legislation, it can
easily encroach the rules and regulation of legislation by making rules.
• This concept opposes the rule of Separation of Power.
• Lack of relevant discussion before framing the law.
• It is not in acceptance with the principle of rule of law.
• It is not stable in nature; it keeps on fluctuating on the ground of
Political changes.

Control of Delegated Legislation

There are three kinds of Control given under Delegated Legislation:

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Parliamentary or
Legislative Control

Judicial
Control
Executive or
Administrative
Control

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate,
and it’s not only the right but the duty of the legislature to look upon its agent,
how they are working.

It is a fact that due to a delegation of power and general standards of control,

the judicial control has diminished and shrunk its area.

In India “Parliamentary control” is an inherent constitutional function because

the executive is responsible to the legislature at two stages of control.

1. Initial stage
2. Direct and Indirect stage

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In the Initial stage, it is to decide how much power is required to be delegated
for completing the particular task, and it also observed that delegation of power
is valid or not.

Now, the second stage consists of two different parts.

1. Direct control
2. Indirect control

Direct control
Laying is an important and essential aspect under direct control and it is laid
down as per the requirement which means that after making the rule it should
be placed before the Parliament. It includes three important part as per the
degree of control needs to be exercised.

1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory – Where the laying demand is a condition pattern to guide

the rule into impact then in such a case laying need is mandatory.

Where the provision is mentioned that the rules should be drafted in a particular
format then it becomes mandatory to follow the format.

Test of Directory – Where the laying need is next to enforce the rule into
operation then it will be directory in nature.

Indirect control
This is a control exercised by Parliament and its committees. Another name for
such type of committee is Subordinate legislation. The main work of the
committee is to examine

1. Whether rule are according to general object of the act.

2. It bars the jurisdiction of the court in direct or indirect ways.

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3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.

Judicial Control
Judicial review upgraded the rule of law. The court has to see that the power
delegated is within the ambit of the constitution as prescribed. Judicial review is
more effective because court do not recommend but it clearly strikes down the
rule which is ultra vires in nature. As per Section 13(3)(a) “Law” is defined
under the Constitution of India which clearly indicate that State should not
make any law which abridge the right given in Part iii of the Constitution. It is
dependent on two basic grounds:

1. It is ultra vires to the Constitution of India, and

2. It is ultra vires to the enabling Act.

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Unit IV
Transparency and Accountability

SYNOPSIS
1. Lokpal and Lokayukt
2. Right to Information
3. Vigilance Commission
4. Comptroller and Auditor - General of India

Introduction
Maladministration is like a termite that slowly erodes the foundation of a nation.
It hinders administration from completing its task. Corruption is the root cause
of this problem that our country faces. Though there are many anti-corruption
agencies in India, most of these anti-corruption agencies are hardly
independent. Even the CBI has been termed as a “caged parrot” and “its
master’s voice” by the Supreme Court of India.

Many of these agencies are only advisory bodies with no effective powers to
deal with this evil of corruption and their advice is rarely followed. There also
exists the problem of internal transparency and accountability. Moreover, there
is not any effective and separate mechanism to maintain checks on such
agencies.

In this context, an independent institution of Lokpal and Lokayukta has been a

landmark move in the history of Indian polity which offered a solution to the
never-ending menace of corruption. It provides a powerful and effective
measure to counter corruption at all levels of the government.

What are Lokpal and Lokayuktas?

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The Lokpal and Lokayukta Act, 2013 mandated for the establishment of Lokpal
at the Union level and Lokayukta at the State level. Lokpal and Lokayuktas are
statutory bodies and these do not have any constitutional status. These
institutions perform the function and role of an “Ombudsman” (an official
appointed to investigate individuals’ complaints against a company or
organization, especially a public authority). They inquire into allegations of
corruption against certain public bodies/organizations and for other related
matters.

Structure of the Lokpal

Let us try to understand the structure of the Lokpal. Lokpal is a multi-member
body consisting of one chairperson and a maximum of 8 members.

The person to be appointed as the chairperson of the Lokpal must be either:

1. The former Chief Justice of India; or

2. The former Judge of the Supreme Court; or
3. An eminent person with impeccable integrity and outstanding ability,
who must possess special knowledge and a minimum experience of 25
years in matters relating to:
1. Anti-corruption policy;
2. Public administration;
3. Vigilance;
4. Finance including insurance and banking;
5. Law and management.
The maximum number of members must not exceed eight. These eight
members must constitute:

• Half members to be judicial members;

• Minimum 50% of the Members should be from SC/ ST/ OBC/ minorities
and women.
The judicial member of the Lokpal must be either:

• A former Judge of the Supreme Court or;

• A former Chief Justice of the High Court.
The non-judicial member of the Lokpal needs to be an eminent person with
flawless integrity and outstanding ability. The person must possess special
knowledge and an experience of a minimum of 25 years in matters relating to:

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• Anti-corruption policy;
• Public administration;
• Vigilance;
• Finance including insurance and banking;
• Law and management.

Term and appointment to the office of Lokpal

Lokpal Chairman and the Members can hold the office for a term of 5 years or
till they attain the age of 70 years, whichever is earlier. The members and the
chairman of Lokpal are appointed by the president on the recommendation of a
selection committee.

The selection committee consists of:

• The Prime Minister of India;

• The Speaker of Lok Sabha;
• The Leader of Opposition in Lok Sabha;
• The Chief Justice of India or any Judge nominated by Chief Justice of
India;
• One eminent jurist.
The Prime Minister is the Chairperson of the selection committee. The selection
of the chairperson and the members is carried out by a search panel of at least
eight persons, constituted by the selection committee.

NEED FOR LOKPAL

Lack of Independence Most of our agencies like CBI, state vigilance departments
etc. 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.

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

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advise to the governments – to either impose departmental penalties on any officer
or to prosecute him in court.

Lack of Transparency and internal accountability In addition, there is the problem

of internal transparency and accountability of these anti-corruption agencies.

Powers of lokpal

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

Lokayukta in States-
Note: Please refer Latest Lokpal Act

Even before the introduction of Lok pal Bill, several states in India enacted the
Lokayukta Statute. For example Bihar, Orissa, Maharashtra, Rajasthan, Tamilnadu
and Uttar Pradesh enacted the Lokayukta States. In 1979, the State of Karnataka
has also adopted this institution.

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In U.P., the U.P. Lokayukta and Up-Lokayukta Act of 1975 were passed.
According to this Act, the Lokayukta shall be appointed by the Governor with the
consultation of the Chief Justice of the High- Court and leader of the opposition in
the Legislative Assembly. The Up-Lokayukta shall be appointed by the Governor
in consultation with Lokayukta. The Up-Lokayukta is subject to the administrative
control of Lokayukta.

Qualification- The Lokayukta shall be a person who is or has been a judge of the
Supreme Court or a High Court. The Lokayukta or Up-Lokayukta should not be a
member of any Legislature and also should have no connection with any political
party. He shall not any office of profit nor should carry any business or any
profession.

Term- He shall hold the office for five years unless the resigns earlier or is
removed from the office by the Governor on the ground of misconduct or
incapacity.

It should be noted he shall be removed from his office subject to the provisions of
Art. 311 of the Constitution. An enquiry is to be conducted by a judge of the
Supreme Court or of a High-Court and the enquiry report must be approved by at
least two-third majority of each house of state legislature.

Lastly the Lokayukta or-Lokayukta may investigate any action taken by-

(a) Minister or a secretary, or

(b) Any public servant including a public servant for this purpose by the State
Government. The

State Government may exclude any complaint involving a grievance or an

allegation made against a public servant from the jurisdiction of Lokayukta or Up-
Lokayukta.

The Lokayukta and Up-Lokayukta are required to submit annually a consolidate

report on the performance of their functions to the Governor.

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CENTRAL VIGILENCE COMMISSION

In any system of government, improvements in the grievance redressal machinery
have always engaged the attention of the people. This system no matter,
howsoever, ineffective completely fails when inertia and corruption filter from the
top. It was against this backdrop that the establishment of the Central vigilance
Commission (CVC) was recommended by the Committee on Prevention of
Corruption, the Santhanam Committee. The committee now after the name of its
Chairman was appointed in 1962. It recommended the establishment of a Central
Vigilance Commission as the highest authority at the head of the existing anti-
corruption organization consisting of the Directorate of General Complaints and
Redress, the Directorate of Vigilance and the Central Police Organization.
The jurisdiction of the Commission and its powers are co-extensive with the
executive powers of the Center. The government servants employed in the various
ministries, and departments of the
Government of India and the Union territories, the employees of public sector
undertakings, and nationalized banks, have been kept within its purview. The
Commission has confined itself to cases pertaining only:
(i) to gazetted officers, and
(ii) (ii) employers of public undertakings and nationalized banks, etc.
drawing a basic pay of Rs. 1,000 per month and above.

Service Conditions and Appointment of Vigilance Commissioner: - The

Central Vigilance Commissioner is to be appointed by the President of India. He
has the same security of tenure as a member of the Union Public Service
Commission. Originally he used to hold office for six years but now as a result of
the resolution of the Government in 1977, his interest for not more than two years.
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After the Commissioner has ceased to hold office, he cannot accept any
employment in the Union or
State Government or any political, public office. He can be removed or suspended
from the office by the President on the ground of misbehavior but only after the
Supreme Court has held an inquiry into his case and recommended action against
him.

Procedure:
The Commission receives complaints from individual persons. It also gather
information about corruption and malpractices or misconduct from various
sources, such as, press reports, information given by the members of parliament in
their speeches made in parliament, audit objections, information or comments
appearing in the reports of parliamentary committees, Audit Reports and
information coming to its knowledge through Central Bureau of Investigation. It
welcomes the assistance of voluntary organizations like Sadachar Samiti and
responsible citizens and the press.

The Commission often receives complaints pertaining to maters falling within the
scope of the State Governments. Where considered suitable, such complaints are
brought to the notice of state vigilance commissioners concerned for necessary
action. Similarly, they forward complaints received by the
State Vigilance Commission in regard to matter falling within the jurisdiction of
the Central Government, to the Central Vigilance Commission for appropriate
action.

The Central vigilance Commission has the following alternatives to deal with these
complaints

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a) It may entrust the matter for inquiry to the administrative

Ministry/Department concerned.
b) It may ask the Central Bureau of Investigation (C. B. I) to make an
enquiry.
c) It may ask the Director of the C. B. I to register a case an
investigate it.

It had been given jurisdiction and power to conduct an enquiry into transaction in
which publics servant are suspected of impropriety and corruption including
misconduct, misdemeanor, lack of integrity and malpractices against civil servants.
The Central Bureau of Investigation (CBI) in its operations assisted the
Commission. The CVC has taken a serious note for the growing preoccupation of
the CBI with work other than vigilance. Thus when the CBI is extensively used for
non-corruption investigation work such as drugtrafficking, smuggling and murders
it hampers the work of the CVC. But how effective this institution has proved in
uprooting corruption depends on various factors, the most important being the
earnestness on the part of the government, citizens and institutions to clean public
life . In its efforts to check corruption in public life and to provide good
governance the Apex Court recommended measures of far-arching consequences
while disposing a public interest litigation petition on the Jain Hawala Case.
Three- Judge Bench separated four major investigating agencies from the control
of the executive. These agencies are:

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Central Bureau Enforcement

of Directorate;
Investigation;

Revenue
The Central
Intelligence
Vigilance
Department
Commission.
and

The Court has shifted the CBI under the administrative control of the CVC.
The Central Vigilance Commission, until now, was under the Home Ministry
entrusted with the task of bringing to book cases of corruption and sundry
wrongdoings and suggesting departmental action.
Now the CVC is to be the umbrella agency and would coordinate the work of three
other investigating arms.
In order to give effect to the view of the Supreme Court, the movement issued an
ordinance on August 25, 1998. However, this measure had diluted the views of the
Supreme Court by pitting one view against the other. Therefore, what ought to
have been visualized as a reformative step had begun to seen as a cleaver
bureaucratic legalese. It was when the Supreme Court expressed concern over
these aspects of the Ordinance in the hearing relating to its validity that the
government decided to amend the Ordinance and thus, on October27, 1998
Central Vigilance Commission (Amendment) Ordinance was issued. The
Commission was made a four-member body and its membership was opened to
other besides bureaucrats. In the same manner the single directive of prior
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permission was deleted and the membership of Secretary Personnel, Government
of India was deleted. It is too early to comment on the functioning of the
reconstituted statutory Central Vigilance Commission but one thing is certain that
no commission can root out corruption, which has sunk so deep in the body politic.
It can only act as a facilitator and propellant.

Comptroller and Auditor General of India

Introduction
In a democracy like India, accountability of the ruling class is an important
aspect of polity and governance. For ensuring the same, the Constitution of
India has given the authority to institutional frameworks such as an
independent Judiciary, Vigilance bodies and a Supreme Audit Institution or SAI.
The Supreme Audit Institution is constituted by the Comptroller and Auditor
General of India (CAG) and the Indian Audit and Accounts Department (IAAD)
which functions under his charge. The office of CAG has been mandated by
the Indian Constitution to be the auditors of the nation and, thus, an agent for
maintaining answerability.

Comptroller and Auditor General of India

Described as the “most important officer in the Constitution of India” by Dr
Bhimrao Ambedkar, the Comptroller and Auditor General of India (CAG) is an
independent authority established under Article 148 of the Indian Constitution.
CAG of India or the “Guardian of the Public Purse” is essentially vested with the
responsibility of inspecting and auditing all the expenditure and receipts of both
the Central and the State Governments as well as of those organizations or
bodies which are significantly funded by the government.

Appointment and Removal of CAG

Article 148 of the Constitution deals with the appointment, removal, oath and
conditions of service of the CAG.

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Appointment of Comptroller and Auditor General
• The CAG is appointed by the President of India by warrant under his
hand and seal.
• The tenure of the office stands for six years or a retirement age of
sixty-five years, whichever comes first.
• The salary and other conditions of the CAG’s services shall be specified
in the Second Schedule of the Constitution until determined by the
Parliament.
• His salary and rights shall not be varied to his disadvantage after his
appointment to the office.
• Moreover, the determination of the service of persons working in the
IAAD (Indian Audit and Accounts Department) as well as the
administrative powers of the CAG shall be done by the President upon
consultation with the CAG and shall be prescribed in rules.
• The administrative expenses of the CAG which incorporate salaries,
allowances and pensions are charged from the Consolidated Fund of
India (Article 266 of the Constitution).

Removal or Expiry of Term of the Comptroller and Auditor

General
• CAG can be removed from his office by the President on the grounds of
proven misbehaviour or incapacity on an address by Parliament in the
manner provided in clause (4) of Article 124 of the Indian Constitution.
• Article 124(4) prescribes the conditions for removal of judges of the
Supreme Court; a Presidential order passed after an address by the
Parliament supported by a total membership majority of the House and
two-thirds of members present and voting.
• However, this can only be executed after sufficient proceedings of
investigation and proof.
• After the retirement or resignation from his office, he is no longer
eligible for any jobs or offices under the Central or State Governments.

Other Constitutional provisions

Besides Article 148, the other articles that are associated with the authority of
CAG are as follows:

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• Article 149 of the Constitution lays down the duties and power of the
Comptroller and Auditor General of India.
• Article 150 says the President of India shall prescribe to the CAG the
form in which the accounts of the Union and the States shall be
maintained and kept.
• Article 151 directs the Comptroller and Auditor General to submit the
accounting reports of the Union and the States to the President of
India, who thereafter, shall cause them to be presented before each
House of Parliament.
• Article 279 stipulates the final authority of the CAG with regard to the
ascertainment and certification of the calculation of net proceeds as
final.
• Section IV of the Third Schedule of the Constitution lays down the form
of oath or affirmation for both the Judges of the Supreme Court as well
as the Comptroller and Auditor General of India.
• The Sixth Schedule of the Constitution vests the responsibility of
prescribing, with the approval of the President, the accounts of District
Council or Regional Council by the CAG. Additionally, the auditing of
their accounts are done in a manner as the CAG shall deem fit and the
reports of the audit shall be presented to the State Governors, who
shall present them to the Council.

Functions & powers

The main functions and powers of the Comptroller and Auditor General are
derived from various sources, namely the Constitution of India, The Comptroller
and Auditor General (Duties, Powers and Conditions of Service) Act of 1971,
landmark judicial decisions, instructions of the Government of India (GoI)
and Regulations on Audit & Accounts of 2007.

The functions of the CAG are discussed below:

• The CAG is authorised to audit the accounts and expenditures from the
Consolidated Fund of India, and of States and those Union Territories
which have legislative assemblies. He also audits all expenditures from
the Contingency Fund of India (Article 267) and Public Account of India
(Clause 2 of Article 266) as well as those of the states.
• All the departments of the Central, as well as State Governments, are
required to get their trading, manufacturing, profit and loss accounts,
balance sheets and other ancillary accounts audited by the CAG.

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• CAG also audits the receipts and expenditure of all those bodies,
organizations, institutions and authorities which are substantially
funded by the Central as well as State governments. Even government
companies, corporations or any companies (with equity participation of
the government with more than 51% of the total) get their accounts
and expenditure audited by the Comptroller and Auditor General.
• On request from the President or Governor, CAG also audits the
reports of the local bodies.
• His advisory power includes advising the President with regards to the
prescription of the form in which the accounts of the Union and States
should be maintained.
• The audit reports with regards to matters related to the Central
Government are submitted by the CAG to the President, who then
presents them to both the Houses of Parliament.
• The audit reports with regards to matters related to the State
Governments are submitted by the CAG to the respective state
Governors, who then present them to the state legislature.
• The Comptroller and Auditor General also work in the capacity of an
ally, advisor and philosopher of the Public Accounts Committee of the
Parliament.

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Unit V
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

• Scope and limitation of Administrative Action.

• Locus Standi and PIL.
• Scope and significance of Administrative Tribunals.
• Statutory Remedies- General and Specific

Scope and limitation of Administrative Action

Administrative law has an enormous social function to perform and it is the body of the reasonable limitations and
affirmative action which are developed by the legislature and the courts to maintain and sustain the rule of law. A strong,
independent and impartial judiciary is a sine qua non of any system of government, excluding dictatorship. In each country
the judiciary plays the key role of interpreting and applying the law and deciding the disputes between one citizen and the
other and between a citizen and state. Where there is a written constitution, the courts perform the additional function of
safeguarding the supremacy of the constitution by interpreting and applying its provisions and keeping all authorities within
the limits of the constitution. Judicial review is a great institution and is a fundamental arch of the system of checks and
balance without which no democracy worth the name can function. Judicial Review basically is an aspect of judicial power
of the state which is exercised by the courts to determine the validity of a rule of law or an action of any agency of the state.
The courts through writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto control the administrative
actions. The important source of administrative law is the statutes, statutory instruments, precedents and the customs. In the
process of judicial review of legislative and executive action, the courts pick out the golden thread of reason and meaning in
a law; they shape and mold the law, reveal its fitness and nuances, smooth the angularities, strike down the bad law or illegal
action, and most essential to all, exert the strong moral forces of restraint in times when expediency is all. The first part of
this paper deals with the concept of administrative action under administrative law and judicial review. Further, the author
will put some light on the grounds of judicial review along with remedies available as judicial review against administrative
action. Thus, to conclude that to provide safeguards to the general public as well as the administrative official, judicial
review is very important.
THE BACKDROP
Administrative action is the residuary action which is neither legislative nor judicial. It is concerned with the treatment of a
particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing
argument. It is based on subjective satisfaction where decision is based on policy and expediency. It does not decide a right
though it may affect a right. However, it does not mean that the principles of natural justice can be ignored completely when
the authority is exercising administrative powers. Unless the statute provides otherwise, a minimum of the principles of
natural justice must always be observed depending on the fact situation of each case Though administrative action is
discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and
reasonable. In the process of judicial review of legislative and executive action, the courts pick out the golden thread of
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reason and meaning in a law; they shape and mold the law, reveal its fitness and nuances, smooth the angularities, strike
down the bad law or illegal action, and most essential to all, exert the strong moral forces of restraint in times when
expediency is all. The evolution of administrative law led to tremendous increase in the power of the administrative
authorities. There is saying that “absolute power corrupts absolutely” and with great powers come great responsibility, so
there is a need to check the administrative actions of the administration agencies and the most efficient way is the judicial
control as it is way more effective than that of executive and administration.

ADMINISTRATIVE ACTION UNDER ADMINISTRATIVE LAW

Administrative law was recognized as a separate branch of legal discipline in the mid-20 th century in India. Until well into
the nineteenth century, the responsibilities of the state were few and limited, consisting of the maintenance of public order,
the conduct of foreign affairs and the disposition of the armed forces.
Nowadays, it’s far different. In the interests of protecting the public and maintaining law and order, the state intervenes into
the lives of its citizens to a very considerable degree. The actions which are carried out under the administrative law are
called administrative actions. An administrative action is a legal action which is concerned with the conduct of a public
administrative body. This kind of action can compel an authority to take a certain action. It does not decide a right though it
might affect a right.
The principles of natural justice cannot be ignored while exercising “administrative powers”. The administrative action
means power of taking an action being administratively discreet.3 It implies authority to do an act, or to decide a matter of
discretion. The administrative authority vested with discretion is suffered with an option, and thus is free to act in its
discretion. Legally he cannot be compelled to pass an order, if he is under no compelling duty to do so. He is free to act, if
he deems necessary or if he is satisfied of the immediacy of the official action on his part. For what he does he is neither
obliged to give reason, nor can be required to answer for it in a law court. His responsibility lies only to his superiors and the
Government.
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

Judicial review of administration is, in a sense, the heart of administrative law. It is certainly the most appropriate method of
inquiring into the legal competence of a public authority. The aspects of an official decision or an administrative act that
may be scrutinized by the judicial process are the competence of the public authority, the extent of a public authority’s legal
powers, the adequacy and fairness of the procedure, the evidence considered in arriving at the administrative decision and
the motives underlying it, and the nature and scope of the discretionary power.
The judicial control of administrative action provides fundamental safeguards against the abuse of power. Since our
Constitution was built upon the deep foundations of rule of law, the framers of the Constitution made sincere efforts to
incorporate certain article in the Constitution to enables the courts to exercise effective control over administrative action.
Pure administrative action involves both Statutory and non-statutory functions which can be covered subjected to judicial
review through various modes for which the proper remedy may be to issue an appropriate writ.

In State of Bihar v. Subhash Singh , the Court held that, judicial review of administrative action under Arts. 32 and 226 of
the Indian Constitution is valid, judicial review of administrative actions is an essential part of the rule of law.

In Federation of Railway officers Association & others v. Union of India, the Supreme Court observed that, where a
policy evolved is inconsistent with the Indian Constitution and the law is arbitrary or irrational or its leads to abuse of power,
the court will interfere with such matters because judicial review of administrative actions is an essential part of rule of law.

In the case of Noble Resources Ltd. v. State of Orissa, the court stated that it can interfere in the contract given by
government to avoid any malafide intention and to avoid the favoritism of government towards some influential people.

In the case of Union of India v. S.S. Ahluwalia, the court stated that in the case of penalty that are imposed on the basis of
disciplinary action are limited, the court could only interfere when the punishment given for the charges alleged may be not
suitable.

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Introduction
The doctrine of locus standi is an old doctrine. The doctrine signifies appearance before the court
or before anybody on a given question. According to the doctrine of locus standi, a person who is
stranger to a disputed matter cannot be allowed to interfere in the judicial proceedings. Only a
person whose legal right has been violated, that is the aggrieved person against whom a decision
has been pronounced, is allowed to bring an action in the court. The Latin word locus (plural loci)
signifies “place.” “Locus standi” is a Latin phrase for “place to stand” and thereby refers to a
vested legal right to file a lawsuit so as to provide a party with the ability to show the court of law
that the law or action that has been challenged, has a considerable relation to the party and the
resultant damages justify the party’s involvement in the case. It is the Supreme Court of the
United States who has rightly confirmed that the essence of the discussed doctrine lies in the
question as to whether the litigant has the entitlement to have the court determine the merits of
the case or only specific issues associated with it. This article provides an idea to the author about
the principle of locus standi thereby ideally referring to certain precedents that amplify the
discussed concept.

Essential ingredients of locus standi

The essential ingredients that have been laid down under Order 7 Rule 11 of the Civil Procedure
Code, 1908 have been laid down hereunder:

Presence of injury

It is necessary to note that the fundamental requirement for instituting a suit involves that person
suffering from some kind of an injury. This injury can be the consequence of the act done by
private parties or the state act. It is noteworthy to mention that the injury we are talking about
can be either actual or anticipatory by its nature.

In the case of Shanti Kumar vs Home Insurance Co (1975), the Supreme Court of India had
observed that the term “aggrieved person” does not mean a person who has suffered any
imaginary injury but it means that the rights of the person have been violated adversely in reality.
It means the injury must be physical, mental, monetary, etc and not mere an imagination.

Traditionally the rigid view of locus standi was followed and according to which only the person
who had any direct interest in the matter could bring an action in the court. But in the
20th century, there emerged a parallel viewpoint of the locus standi that is the relaxation of locus
standi.

Causation

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Put simply, the term ‘causation’ signifies the cause and effect relationship. It means that there
shall be a presence of sufficient relationship between the act of one party in relation to the injury
that is undergone by an aggrieved party. The purpose behind this ingredient is to ensure that the
resultant injury can be traced back to the action that has caused it, belonging to the defendant.
The ingredient also ensures that the injury is not caused by any independent or third party for
then the causal relationship will be difficult to establish.

Exceptions to the principle of locus standi

Locus standi in relation to Public Interest Litigation (PIL)

The scenario in cases of PIL in regards to locus standi appears less complex in comparison to
situations involving private litigation. Courts have contributed in bringing about a simpler, more
flexible and wider rule for governing the aspect of locus standi in cases of PIL. The locus standi in
cases of PIL is based on public welfare thereby abiding by the fundamental principles of the
Constitution, to advance the cause of the community, disadvantaged groups and individuals, or
the public interest.

In the case of S.P Gupta vs Union of India (1982), the Supreme Court observed that in India a
large number of persons are exploited and ignorant of their legal rights. These weaker sections of
the country are not in a position to approach the court for judicial remedy. So in order to provide
justice to these people, the principle of locus standi should be relaxed. It further held that
whenever the legal rights of a person or class of persons is violated and by any reason they cannot
approach the court, then any public spirited person can file a petition on behalf of them
under Articles 226 and 32 of the Indian Constitution in high court and Supreme Court respectively.

In this case, the Supreme Court held that advocates and judges are an important part of the
judicial system. And as the law minister’s letter violated an essential feature of the Indian
Constitution, the advocates had interest in the matter and thus, they also had locus standi as well.
It also means that every Indian citizen has the right to challenge the constitutional validity of the
laws passed by the Parliament as the Indian Constitution belongs to all its citizens ( this is
mentioned in the Preamble of the Indian Constitution).

It was in the case of Akhil Bhartiya Soshit Karmachari Sangh vs. Union of India (1980), where the
Apex Court had ruled that although the Akhil Bhartiya Soshit Karmachari Sangh (Railway) was an
unregistered association, it was eligible to file a writ-petition under Article 226 of the Indian
Constitution, in order to get redressal of a popular grievance. The Court had further held that
constitutional jurisprudence provides access to justice by means of class actions, public interest
litigation, and representative proceedings.

It is ideal to note that the principle of locus standi is often seen to be relaxed when it comes to the
constitutionality of legislation being in issue. In Indian context, statutory legality can be challenged
before the court of law without affecting the functionality of the same.

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In the case of Charan Lal Sahu & Anr. v. Giyani Zail Singh (1984), the question regarding
challenging the election of the President and the Vice President in accordance with the Presidential
and Vice Presidential Act, 1952, was raised. It concerned the election of President in 1982 for
which 36 nominations were filed including that of the petitioner, Charan Lal Sahu. As the
documentation of 34 candidates was not proper, the Returning Officer rejected their nomination.
The two candidates who were not rejected were Zail Singh and H.R Khanna ( retired Justice of the
Supreme Court).

On 12th July 1982, Zail Singh became the President of India. As Charan Lal’s nomination was
canceled and thus he couldn’t contest for the election. After the election was over, he challenged
the election on the ground that Zail Singh had exercised undue influence over the voters. Sahu
also alleged that H.R Khanna was not competent as he gave wrong decisions on fundamental
rights cases. The Attorney General represented the President of India and challenged the locus
standi of Charan Lal. According to Section 14A of the Presidential and Vice Presidential Act, 1952
the election of President and Vice President can be only challenged by the candidates of the
election. And Section 13(1) of the Act says that a candidate is the one who has been nominated as
a candidate in an election. So the Hon’ble Supreme Court held that since the petitioner was not
nominated as a candidate in the Presidential election, he had no locus standi and hence his
petition was dismissed.

Remedies laid down by existing statutes in force

There may be statutes which expressly relaxes the rigid requirement of locus standi. One can
recognise such relaxation by usage of phrases such as “person aggrieved” or “aggrieved
person”. However, the final decision is made by the court of law approaching the dispute
appearing before it. The phrase ‘person aggrieved’ showcases a divergent scope and it not only
includes the person who actually suffered the loss but those who have an apprehension towards
future loss. The case of Sunil Batra vs Delhi Administration (1980) needs a reference in this case.

In this case, Sunil Batra was a prisoner in the Tihar jail. He wrote a letter to a Supreme Court
judge, in which he mentioned that the jail warden was brutally assaulting another prisoner i.e,
Prem Chand, who was sentenced with life imprisonment. The warden assaulted Prem so that he
could extract money from his relatives. One day Prem Chand got severely injured as the warden
hit him with an iron rod. Thus, Chand was treated by the prison’s doctor but when his condition
deteriorated then he was shifted to hospital. So, in this case the question arose whether a letter
could be treated as a writ petition or not. Thus, the Supreme Court widened the ambit of the writ
of habeas corpus which included all kinds of ill practices that were being practiced in the jail. And
hence the letter was converted into a writ petition. After this case the following reforms were
made:

1. Provisions were made so that the prisoners could be aware of their legal rights.
2. Provision was made regarding lodging of prisoners’ complaints. A register should be kept
at every jail so that the prisoners can lodge their complaints.
3. Confidential interviews of prisoners with advocates appointed by the court were
arranged.
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4. Session Judges were also required to visit jails periodically in order to enquire from the
prisoners, so that whenever it is necessary they can take actions against it.

Important cases relating to PIL in India

• Vishaka v State of Rajasthan

This case played a crucial role in influencing the Parliament to enact the Sexual Harassment at
Workplace Ac, 2013. In this case, a social activist was gang-raped for vengeance. All the accused
were acquitted by the trial court. The state applied for a petition to the Supreme court under the
name Vishaka. The court laid down the guidelines to follow in workplaces to prevent sexual
harassment.

• Fertilizer Corp. Kamnagar Union v Union of India

In this case, the court held that; when the power of bureaucracy increases, misuse of legal
standing is inevitable. The only solution is the expansion and flexibility of locus standi to expand
the scope of justice.

• Mumbai Kamgar Sabha v Abdul Thai

In this case, the issue was the payment of bonuses to workers in an industry. Justice V.R Krishna
Iyer rightfully held that; the right to approach courts when similar individual rights of several
people are infringed is the appropriate remedy in our socio-economic context.

• Hussainara Khatoon v State of Bihar

This case dealt with the harsh conditions of prisons and under trial prisoners. An advocate filed a
petition under Article 32 describing the poor condition of undertrial prisoners and their inability to
safeguard their personal liberties. The court held that the right to a speedy trial is a part of the
right to life under Article 21.

• S.P Gupta v Union of India

A group of lawyers filed a writ petition under Article 226 of the Constitution regarding the
appointment of judges. The petition was allowed as the lawyers had a genuine interest in the
disposal of cases and appointment of judges. This case opened up a new era for public interest
litigation in India. PIL became one of the most effective tools to enforce public duty, which was
earlier executed illegally, thereby causing injury to society.
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• Bandhua Mukti Morcha v Union of India

In this case, an organization for bonded labourers filed a petition before the Supreme Court to
release bonded labourers. The court distinguished PIL from adversary litigation and stated the
objective of PIL is to allow the government to make fundamental rights meaningful according to
the Constitution.

• People’s Union for Democratic Rights v Union of India

In this case, an organization dedicated to secure the rights brought a writ petition under Article 32
complaining about the violations of labour laws during the construction of stadiums for the Asiad
project. Justice P.N Bhagwati stated that a PIL is filed to enforce the rights of a class of persons
whose fundamental rights are violated, as opposed to ordinary litigation where only the rights of
an individual are considered.

In recent times, the scope of PIL has expanded and is still expanding. PIL is now not only a tool for
addressing the issues of the poor and marginalized but also for addressing social issues. However,
under the traditional definition of locus standi, problems and issues of public importance were not
enforceable in a court of law.

Currently, PIL deals with a wide variety of issues such as administrative problems affecting
society, socio-economic problems, abuse of power by authorities, labour rights, and problems
relating to the environment.

Although the object of a PIL is for addressing the concerns about the public, individuals use PIL as
a cover to accomplish their selfish goals. The petitioner must act in good faith, keeping in mind the
interest of the public and not to attain his political, economic, or personal motives. The Supreme
Court has repeatedly warned that PIL must be used with care and caution. The courts may refuse
to accept a PIL if there is an unreasonable delay in filing it. Public Interest Litigation continues to
flourish in India due to the irresponsibility and lack of accountability by the government.

Scope of Public Interest Litigation in India

Initially, only petitions relating to habeas corpus were recognized as the subject matter of PIL.
Now the scope of PIL extends to many issues of public importance such as:

• Child abuse and child labour

• Cases of neglected children
• Bonded labour cases
• Atrocities against woman, rape cases, kidnapping and murder
• Refusal to pay minimum wages to workmen
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• Persecution of the socially and economically backward sections of the society – especially
children and women
• Complaints against police
• Cases relating to environmental protection

Drawbacks of PIL

• Misusing PIL and filing trivial petitions to accomplish the selfish and personal motives of
individuals. Courts have made it clear that it is not personal interest litigation but
litigation for the benefit of the public.
• Unreasonable delay in disposal of matters of the poor, needy, and economically backward
defeats the purpose of PIL.
• The courts may overlook the problem of competing rights. For example, if a court orders
the closing of a polluting chemical factory, it will infringe on the rights of workers in the
factory due to loss of livelihood.
• While determining issues of socio-economic importance or environmental problems, there
is a chance that courts may inadvertently commit judicial overreach through PILs.
• With an expansion in the meaning of locus standi, many people file public interest
litigation for various purposes, which leads to overburdening the courts with cases.

Critical analysis
Public Interest Litigation is the result of judicial activism. The only objective behind public interest
litigation is to make the judiciary more responsive to the needs of the section of society that
usually cannot approach the courts to redress their grievances. The judiciary acts as a guard for
the society through this change. The legislature usually deals with problems that are separated
from the masses and not connected with the welfare of common people.

Public Interest Litigation has significantly contributed to the enforcement and protection of rights
that were usually overlooked and prevented the misuse of justice. PIL is necessary for the Indian
context, which is ridden with injustice. At its inception, PIL was used as a tool against persecution.
Subsequently, there was a huge inflow of trivial cases, but it should be seen as progress because it
is aimed at producing results at an affordable rate.

Although PIL has many benefits, the courts must be cautious to prevent private interest through
PILs. Judiciary shouldn’t use public interest litigation to encroach the fields of executive and
legislature. The challenge faced by courts is in finding a balance between accepting a legitimate
public concern while rejecting the trivial ones. A way to ensure this is by setting up some
economic disincentives and only hearing cases that are primarily barred by a disability.

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Conclusion
Public Interest Litigation, otherwise known as Class Litigation or Social Action litigation, is different
from the normal mode of litigation. The main objective of PIL is to deliver justice to those who
wouldn’t normally be able to access it. The rule of locus standi has undergone radical changes to
make it more flexible. Now, any socially spirited person can file a PIL representing the grievances
or issues of a socially or economically backward community.With the evolution and developments
of PIL, accountability, and attitude of the government towards the rights of weaker sections have
seen drastic improvements. The relaxed rule of locus standi and the betterment of government
accountability towards the weaker sections have made PIL one the most important and effective
tool for social change and to validate the Rule of Law as mentioned under Article 14.

ADMINISTRATIVE TRIBUNALS

Introduction
In Administrative law, the term ‘tribunal’ is used in a significant sense and refers to only the
adjudicatory bodies which lie outside the sphere of the ordinary judicial system. Technically in
India, the judicial powers are vested in the Courts which aims to safeguard the rights of the
individuals and promotes justice. Therefore, to institute an effective system of the judiciary
with fewer complexities, the judicial powers are delegated to the administrative authorities,
thus, giving rise to administrative tribunals or administrative adjudicatory bodies which holds
quasi-judicial features.

HISTORY AND GROWTH

The 42nd Amendment to the Constitution introduced Part XIV-A which included Article 323A
and 323B providing for constitution of tribunals dealing with administrative matters and other
issues. According to these provisions of the Constitution, tribunals are to be organized and
established in such a manner that they do not violate the integrity of the judicial system given
in the Constitution which forms the basic structure of the Constitution.

The introduction of Article 323A and 323B was done with the primary objective of excluding
the jurisdiction of the High Courts under Article 226 and 227, except the jurisdiction of the
Supreme Court under Article 136 and for originating an efficacious alternative institutional
mechanism or authority for specific judicial cases.

The purpose of establishing tribunals to the exclusion of the jurisdiction of the High Courts
was done to reduce the pendency and lower the burden of cases. Therefore, tribunals are
organised as a part of civil and criminal court system under the supremacy of the Supreme
Court of India.
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From a functional point of view, an administrative tribunal is neither an exclusively judicial
body nor an absolute administrative body but is somewhere between the two. That is why an
administrative tribunal is also called ‘quasi-judicial’ body.

Characteristics of Administrative Tribunals

The following are the few attributes of the administrative tribunals which make them quite
disparate from the ordinary courts:

1. Administrative tribunals must have statutory origin i.e. they must be created by any
statute.
2. They must have some features of the ordinary courts but not all.
3. An administrative tribunal performs the quasi-judicial and judicial functions and is
bound to act judicially in every circumstance.
4. They are not adhered by strict rules of evidence and procedure.
5. Administrative tribunals are independent and not subject to any administrative
interference in the discharge of judicial or quasi-judicial functions.
6. In the procedural matters, an administrative tribunal possesses the powers of a court
to summon witnesses, to administer oaths and to compel the production of
documents, etc.
7. These tribunals are bound to abide by the principle of natural justice.
8. A fair, open and impartial act is the indispensable requisite of the administrative
tribunals.

Categories of Administrative Tribunals

Administrative Tribunals for service matter [Article 323A]

Article 323A provides the establishment of administrative tribunals by law made by Parliament
for the adjudication of disputes and complaints related to the recruitment and conditions of
service of Government servants under the Central Government and the State Government. It
includes the employees of any local or other authority within the territory of India or under the
control of the Government of India or of a corporation owned or controlled by the
Government.

The establishment of such tribunals must be at the centre and state level separately for each
state or for two or more states. The law must incorporate the provisions for the jurisdiction,
power and authority to be exercised by tribunals; the procedure to be followed by tribunals;
the exclusion of the jurisdiction of all other courts except the Supreme Court of India.
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Tribunals for other matters [Article 323B]

Article 323B empowers the Parliament and the State Legislature to establish tribunals for the
adjudication of any dispute or complaint with respect to the matters specified under clause (2)
of Article 323B. Some of the matters given under clause (2) are a levy, assessment, collection
and enforcement of any tax; foreign exchange and export; industrial and labour disputes;
production, procurement, supply and distribution of foodstuffs; rent and it’s regulation and
control and tenancy issues etc. Such a law must define the jurisdiction, powers of such
tribunals and lays down the procedure to be followed.

In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached various
conclusions as to jurisdictional powers of the tribunal constituted under Articles 323A and
323B. The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article
323B on the ground that they excluded the jurisdiction of the High Courts and the Supreme
Court under Article 226/227 and 32 respectively.

The SC ruled that the tribunals created under Article 323A and 323B would continue to be the
courts of the first instance in their respective areas for which they are constituted. The
litigants are not allowed to approach the High Courts directly by overlooking the jurisdiction of
the concerned tribunal.

No appeal for the decision of the tribunal would lie directly before the Supreme Court under
Article 136 but instead, the aggrieved party would be entitled to move the High Court under
Article 226 and 227 and after the decision of the Division Bench of the High Court, the party
may approach the Apex Court under Article 136.

Distinction between Courts and Tribunals

Courts Administrative Tribunal

The administrative tribunal is an agency

A Court of law is a part of the
created by a statue endowed with judicial
traditional judicial system.
powers.

It deals with service matters and is vested

A Court of law is vested with general
with limited jurisdiction to decide a particular
jurisdiction over all the matters.
issue.

It is not bound by the rules of the Evidence

It is strictly bound by all the rules of
Act and the CPC unless the statute which
evidence and by the procedure of the
creates the tribunal imposes such an
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Code of Civil Procedure. obligation.

It is not mandatory in every case that the

It is presided over by an officer expert
members need to be trained and experts in
in the law.
law.

The decision of the court is objective in

The decision is subjective i.e. at times it may
nature primarily based on the evidence
decide the matters taking into account the
and materials produced before the
policy and expediency.
court.

It is bound by precedents, the principle It is not obligatory to follow precedents and

of res judicata and the principle of principle of res judicata but the principle of
natural justice. natural justice must be followed.

It can decide the validity of legislation. It cannot decide the validity of legislation.

The courts do not follow investigatory Many tribunals perform investigatory

or inquisition functions rather it decides functions as well along with its quasi-judicial
the case on the basis of evidence. functions.

The Administrative Tribunals Act, 1985

In pursuance of the provisions in Article 323A, Parliament passed the Administrative Tribunal
Act, 1985, providing for all the matters falling within the clause(1) of Article 323-A.

According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre and
a State Administrative Tribunal (SAT) at the state level for every state.

The tribunal is competent to declare the constitutionality of the relevant laws and statutes.
The Act extends to, in so far as it is related to the Central Administrative Tribunal, to the
whole of India and in relation to the Administrative tribunals for states, it is applicable to the
whole of India except the State of Jammu and Kashmir (Section 1).

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Objective for the establishment of Administrative Tribunals

The main purpose of the introduction of this act was :

1. To relieve congestion in courts or to lower the burden of cases in courts.

2. To provide for speedier disposal of disputes relating to the service matters.

Applicability of the Act

According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all Central
Government employees except –

• The members of the naval, military or air force or any other armed forces of the
Union
• Any officer or servant of the Supreme Court or any High Courts
• Any person appointed to the secretariat staff of either House of the Parliament.

Composition of the Tribunals and Bench

Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall
consist of a Chairman, Vice Chairman, Judicial and Administrative members. Every bench
must include at least one judicial and one administrative member. The benches of the Central
Tribunal shall ordinarily sit at New Delhi, Allahabad, Calcutta, Madras, Bombay and such other
place as the Central Government specifies. The Chairman may transfer the Vice Chairman or
other members from one bench to another bench.

Qualification and Appointment of Members

Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the
qualifications and appointment of the members of tribunals.

Chairman: To be appointed as a chairman, a person must have the following qualifications-

• He is or has been a judge of a High Court or

• He has held the office of Vice Chairman for two years or
• He has held the post of secretary to the Government of India or

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• He has held any other post carrying the scale pay of secretary.
Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-

• Is or has been a judge of the High Court or

• Has for 2 years held the post of Secretary to the Government or holding any other
post carrying the same pay scale under the Central or State Governments or
• Has held for 5 years the post of an Additional Secretary to the Government of India
or any other post carrying the scales of pay of Additional Secretary.

Judicial Member: A person to be appointed as a judicial member must-

• Be or have been a judge of the High Court or

• Have been a member of Indian Legal Service and has held a post in Grade I of the
service for at least 3 years.

Administrative Member: A person to be appointed as an Administrative member must-

• Have held the post of an Additional Secretary to the Government of India or another
equivalent post for at least 2 years, or
• Have held the post of a Joint Secretary to the Government of India or other
equivalent post, or
• Have adequate administrative experience.
The Chairman, Vice-Chairman and other members shall be appointed by the President. The
Judicial Members shall be appointed by the President with the consultation of the Chief Justice
of India. The Chairman, Vice-Chairman and other members of the State Tribunal shall be
appointed by the President after consultation with the Governor of the concerned state.

Term of Office

According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the
tribunal shall hold the office for a term of 5 years or until he attains-

1. Age of 65 years, in the case of the Chairman or Vice-Chairman

2. Age of 62 years in the case of other members

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Jurisdiction of Central Tribunal

Section 14 states that the Central Tribunal from the day of the appointment shall exercise all
the jurisdiction, powers and authority in relation to the following matters which were within
the jurisdiction of other courts (except the Supreme Court) before the enactment of this Act:

1. Recruitment of any civil service of Union or All India service or civil post under the
Union or civilian employees of defence services;
2. All service matters of the above-mentioned employees, and also of employees of any
local or other authority within the territory of India or under the control of the
Government of India or any corporation or society owned or controlled by the
Government;
3. All service matters of such persons whose services have been placed by the State
Government or any local or other authority or any corporation at the disposal of the
Central Government.

Procedure and Powers of Tribunals

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of
tribunals discussed below-

1. A tribunal is not bound to follow the procedure laid down by the Code of Civil
Procedure, 1908. It has the power to regulate its own procedure but must abide by
the principle of natural justice.
2. A tribunal shall decide the applications and cases made to it as rapidly as possible
and every application shall be decided after scrutinizing the documents and written
submissions and perceiving the oral arguments.
3. Tribunals have the same powers as vested by the civil courts under the Code of Civil
Procedure, 1908, while trying a suit, with regard to the following subject-matter-
4. Summoning and enforcing the attendance of any person and examining him on oath;
5. Production of documents;
6. Receiving evidence on affidavits;
7. Ask for any public record or document from any office under Section 123 and 124 of
the Indian Evidence Act, 1872;
8. Issuing commissions for the examination of witnesses and documents;
9. Reviewing its decisions;
10. Deciding the case ex-parte;

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11. Setting aside any order passed by it ex-parte;
12. Any other matter prescribed by the Central Government.
13. Leading Case Laws
Case: S.P. Sampath Kumar v. Union of India[2]

Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was
predominantly challenged on the ground that this Act excludes the jurisdiction of High Courts
under Articles 226 and 227 with regard to service matters and hence, destroyed the concept
of judicial review which was an essential feature of the Indian Constitution.

Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section
6(1)(c). The court held that although this Act has excluded the jurisdiction of judicial review
exercised by the High Courts in the service matters it has not entirely excluded the concept of
judicial review. The jurisdiction of the Supreme Court under Article 32 and 136 has not been
excluded by this Act and kept unscathed.

Thus, there still exists an authority where matters of injustice can be entertained by judicial
review. The judicial review which is the part of the basic structure of the Indian Constitution
can be taken away from a particular area only if an alternative effectual institutional
mechanism or authority is provided.

However, Section 6 (1)(c) of the Act was held to be unconstitutional as it gave unrestricted
power to the Government to appoint the Chairman, Vice-Chairman and other members of the
tribunals. These appointments must be made by the Government in a meaningful and
effective manner only after consulting the Chief Justice of India.

The court recommended that the term of 5 years prescribed under the Act for Chairman, Vice-
Chairman and other members of the tribunal is not rational because it would act as dissuasion
for the good and generous people to accept the job in the tribunal and should, therefore, be
reasonably extended.

The directions given by the Supreme Court came into effect through the Administrative
Tribunals (Amendment) Act, 1987.

Case: Union of India v. R. Gandhi, President, Madras Bar Association[3]

Facts: The constitutionality of the National Company Law Tribunal (NCLT) and National
Company Law Appellate Tribunal (NCLAT) on the following grounds-

1. Parliament does not have authority to vest the judicial functions in any tribunal that
have been traditionally performed by the High Courts since so long.

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2. Transferring the entire company jurisdiction of the High Court to the tribunal are
violative of the doctrine of Rule of Law, Separation of Powers and Independence of
the Judiciary.
3. The various provisions of Part 1B and 1C of the Companies Act are defective and
unconstitutional, being in breach of constitutional principles of Rule of Law,
Separation of Powers and Independence of the Judiciary.
Judgment: the court upheld the constitutionality of NCLT and NCLAT in exercising the powers
and jurisdiction of the High Court subject to necessary changes to be made in the Companies
Act, 1956 as amended in 2002, through suitable amendments

The court acknowledged and upheld the constitutional power of the Parliament to constitute
tribunals for adjudication of disputes. The legislative competence of Parliament to provide for
the creation of courts and tribunals can be traced to Article 245, 246 and 247 of the
Constitution read with various entries in the Union List and the Concurrent List which is in no
way affected or controlled by Article 323A or 323B of the Constitution.

The court further added that it cannot be assumed that constitution of tribunals and
transferring judicial powers per se infringe the rule of law, separation of powers and
independence of the judiciary because the Constitution enables both courts and tribunals to
exercise judicial powers.

What matters the most is whether the constituted tribunals respect and maintain the
principles of separation of powers, rule of law and independence of the judiciary. The
constitution of NCLT and NCLAT must be subject to judicial review so that the court in the
exercise of judicial review look into the matter to check if these principles are compromised by
such tribunalisation and may interfere in between to preserve the same.

Advantages of Administrative Tribunals

The concept of administrative tribunals was introduced because it has certain advantages over
ordinary courts. Few of them are mentioned below-

• Flexibility: The introduction of administrative tribunals engendered flexibility and

versatility in the judicial system of India. Unlike the procedures of the ordinary court
which are stringent and inflexible, the administrative tribunals have a quite informal
and easy-going procedure.

• Speedy Justice: The core objective of the administrative tribunal is to deliver quick
and quality justice. Since the procedure here is not so complex, so, it is easy to
decide the matters quickly and efficiently.

• Less Expensive: The Administrative Tribunals take less time to solve the cases as
compared to the ordinary courts. As a result, the expenses are reduced. On the other

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hand, the ordinary courts have cumbrous and slow-going, thus, making the litigation
costly. Therefore, the administrative tribunals are cheaper than ordinary courts.

• Quality Justice: If we consider the present scenario, the administrative tribunals are
the best and the most effective method of providing adequate and quality justice in
less time.
• Relief to Courts: The system of administrative adjudication has lowered down the
burden of the cases on the ordinary courts.

Drawbacks of Administrative Tribunals

Although, administrative tribunals play a very crucial role in the welfare of modern society, yet
it has some defects in it. Some of the criticisms of the administrative tribunal are discussed
below-

• Against the Rule of Law: It can be observed that the establishment of the
administrative tribunals has repudiated the concept of rule of law. Rule of law was
propounded to promote equality before the law and supremacy of ordinary law over
the arbitrary functioning of the government. The administrative tribunals somewhere
restrict the ambit of the rule of law by providing separate laws and procedures for
certain matters.

• Lack of specified procedure: The administrative adjudicatory bodies do not have any
rigid set of rules and procedures. Thus, there is a chance of violation of the principle
of natural justice.

• No prediction of future decisions: Since the administrative tribunals do not follow

precedents, it is not possible to predict future decisions.

• Scope of Arbitrariness: The civil and criminal courts work on a uniform code of
procedure as prescribed under C.P.C and Cr.P.C respectively. But the administrative
tribunals have no such stringent procedure. They are allowed to make their own
procedure which may lead to arbitrariness in the functioning of these tribunals.

• Absence of legal expertise: It is not necessary that the members of the

administrative tribunals must belong to a legal background. They may be the experts
of different fields but not essentially trained in judicial work. Therefore, they may lack
the required legal expertise which is an indispensable part of resolving disputes.

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STATUTORY REMEDIES FOR ADMINISTRATIVE ACTION

A remedy given under a statute authority is called Statutory Remedy. Statutory remedies are not
equivalent to constitutional remedies. As a substantive remedy, relief which could not be achieved
through a writ could be provided. Ex: Enforcement of payment of money. Many of the remedies of
private law, such as a civil suit for seeking damages, an injunction or a declaration are extended to
public law as well.

Statutory remedies may be divided into

a) Civil Remedies (General and Specific)

b) Criminal Remedies. (Punishments, monetary compensation)

General Statutory Civil Remedies –

• Injunctions ( Perpetual/Mandatory, Temporary)

• Declaratory Actions, Specific Performance, Restitution, Recovery of legal costs i.e. advocate fee, court
expenses etc., Recovery of possession of property and
• Damages- liquidated, unliquidated & statutory etc (Include nominal, substantial, Penal or exemplary etc)

Remedies under CONTRACTS:

• Compensation for loss or damage by breach of contract

• Liquidated damages
• Specific Performance.
• Injunction
• Cancellation.

JUDICIAL REMEDIES

• Damages
• Injunction
• Decree for Possession.

EXTRA-JUDICIAL REMEDIES

• Self-help.
• Expulsion of trespasser
• Re-entry on land
• Reception of goods and chattels
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• Distress Damage Feasant. (cattle pound)
• Abatement of Nuisance.

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