ADMINISTRATIVE LAW NOTES

MODULE – I
Q1. TRANSFORMATION – LAISSEZ FAIRE TO WELFARE STATE –
➢ Lord Acton, “Power tends to corrupt and absolute power corrupt absolutely.”
People in position of power often abuses their power to do bad things. They became corrupted
or morally compromised and the more the authority someone has the worst their morality
becomes. ‘Absolute’ here means unlimited without any constraint so the rulers who don’t have
any limit on their power tend to became corrupted beyond limit.
➢ James Madison, “Concentration of power is tyranny.”
Accumulation of all powers legislative, executive, judiciary, in some hands whether of one, a
few or many and whether hereditary, self appointed or elective may justly be pronounced the
very definition of tyranny.
Transformation:
Police State Social welfare state
Defence of the country Protection and promotion of economic & social well being
Maintenance of law & order Equal opportunity
Administration of Justice Equitable distribution of wealth
Collection of Taxes Protector, provider entrepreneur and economic controller
Laissez-Faire:
➢ Minimum government control
➢ Policies like government and law should not interfere with business, finance, or the
conditions of people working lives.
Consequences:
➢ Exploitation
➢ Increase gap between rich & power
➢ Unemployment
Indian scenario:
➢ Mauryas & Guptas of ancient India had a centralized administrative system.
➢ It was the coming of the British that administrative law in India went through few
changes.
➢ Many acts were passed by British government regulating public safety, health,
transport, etc.
➢ Examples: The Stage Carriage Act, Northern Canal and Drainage Act, and The
Defence of India Act, etc.
 ➢ As many acts were regulated and passed the administration system got increased.
Around that time, the Britishers used to divide the powers and gave authorities to
regulate act.
➢ Example: Defence Act power was given to viceroy where he can detain any
individual.
➢ Though many acts were passed the main aim to attain welfare was not achieved.
➢ Thus, these resulted in change in the State policy when we finally got our
Independence.
➢ Thus, Independent India wants to aim for welfare state; which was proven in our
constitution as well as preamble.
Therefore, Police State to Social Welfare State:
➢ This resulted in increase of administrative functions. Major laws were introduced and
because of this the State got involved in all the individual aspects of individual from
birth to death.
➢ After introducing many laws the core functions was to implement them. To implement
we made different departments. Eg. Ministries, MCA, or Ministry of agriculture, of
women. Establish authority who would look after execution.
➢ Thus rise in the administrative functions to implement to execute resulted in birth of
admin law.

Q2. NATURE & SCOPE OF ADMINISTRATIVE LAW –

➢ Nature of Administrative Law –
Branch of Public Law: Administrative law is a branch of public law that focuses on the legal
principles and rules governing the activities of administrative agencies. These agencies are
established by the government to administer and implement laws and policies in various areas
such as taxation, healthcare, transportation, environment, and more.
Regulates Administrative Agencies: Administrative law defines the organization, powers,
functions, and procedures of administrative agencies. It sets out the legal framework within
which these agencies operate, ensuring that they act within their delegated authority and in
accordance with the law.
Balancing Power: Administrative law seeks to strike a balance between the need for
administrative efficiency and the protection of individual rights and freedoms. It aims to
prevent abuse of power by administrative agencies while allowing them the necessary authority
to carry out their functions effectively.
Dispute Resolution: Administrative law provides mechanisms for resolving disputes between
individuals and administrative agencies. It typically involves administrative tribunals or
specialized courts that have jurisdiction to hear and decide on administrative matters. These
bodies offer an alternative to traditional courts and provide expertise in the subject matter of
the disputes.
 ➢ Scope of Administrative Law –
Judicial Review: One of the key features of administrative law is judicial review. It allows
courts to review the legality and validity of administrative actions, decisions, and regulations.
Courts assess whether administrative agencies have acted within their authority, followed fair
procedures, and made decisions that are reasonable and consistent with the law.
Administrative Procedures: Administrative law sets out the procedures that administrative
agencies must follow when making decisions or taking actions that affect individuals. These
procedures often include notice requirements, opportunities for hearings, and the right to
present evidence and arguments.
Substantive Standards: Administrative law establishes substantive standards that guide
administrative decision-making. These standards require agencies to consider relevant factors,
weigh competing interests, and make decisions that are rational, fair, and consistent with the
underlying purpose of the legislation.
Accountability and Transparency: Administrative law aims to promote accountability and
transparency in the functioning of administrative agencies. It requires agencies to provide
reasons for their decisions, disclose relevant information, and allow affected individuals to
participate in the decision-making process.

Q3. SOURCES OF ADMINISTRATIVE LAW –

Introduction:
➢ Branch of law that deals with powers, functions, and responsibilities of various organs
of the state.
➢ Acc. To Kenneth Culp Davis, the law concerning the powers and procedures of
administrative agencies, including the law governing the judicial review of
administrative action.
➢ Study of administrative law involves analysis of institution and legal rules through
which government decision making is authorized, affected, and reviewed.
➢ By – products of ever increasing functions of the Government.
a) Constitution of India:
➢ Supreme law of the land
➢ Being the grund norm of the legal system of the country, it conditions and overrides all
legislative and administrative actions.
➢ All the legislative actions of the administration have been expressly brought by the
Constitution within the purview of Article 13 by defining ‘law’ as including ‘order’;
‘bye-laws’ ; ‘rule’ and ‘notification’, etc having the force of law.
➢ All these features of the Constitution influence and shape the nature and content of
administrative law in India.
b) Statutes/Acts:
➢ Acts passed by the CG/SG for the maintenance of peace and order, tax collection,
economic and social growth empowers the administrative organs to carry on various
tasks necessary for it.
➢ These acts list the responsibilities of the administration, limit their power in certain
respects and provide for grievance redressal mechanism for the people affected by the
administrative action.
c) Ordinances:
➢ A.123 of the Constitution of India deals with the legislative powers of the President,
empowers to promulgate ordinances during the recess of Parliament &
➢ A.213 confers similar powers on the Governor to promulgate ordinances during the
recess of State legislature.
➢ Ordinances are issued when there are unforeseen developments and the legislature is
not in session and therefore cannot make laws.
➢ Allow the administration to take necessary steps to deal with such developments.
d) Judicial Decisions:
➢ Judiciary is the final arbiter in case of any dispute between various wings of government
or between the citizen and the administration.
➢ In India, we have the supremacy of Constitution and the Supreme court is vested with
the authority to interpret it.
➢ The courts through their various decisions on the exercise of power by the
administration, the liability of the government in case of breach of contract, lay down
administrative law which guide their future conduct.

Q4. REASONS FOR GROWTH OF ADMINISTRATIVE LAW –

In India, since the Mauryan and Gupta age, there has been the administration of the legislation,
rule adjudication and the related provisions. There were many reasons which accounts for the
ridden growth of the administrative law. The following are the reasons for the growth of
administrative law:
• Concept of Welfare State:
We can see the evolution of welfare state concept. The concept was developed during the 10th
and 20th century. According to this concept, the State administration is to achieve maximum
welfare of the masses.
• Inadequate Judicial System:
Judiciary was slow, costly, unexpected, complex and formalistic in nature. Overburdening of
judicial system due to which speedy disposal was not possible, and also resulted in strikes and
lockouts in disputes between employers and employees.
To solve above problems, need for tackling arose and as a result, industrial tribunals and labour
tribunals and labour courts were established. These tribunals are not courts but executive
authorities having judicial powers.
• Inadequate Legislative:
The legislature has no time to legislate upon the day-to-day ever-changing needs of the society.
Detailed procedure made by the legislature were found to be defective and inadequate. All these
resulted in the delegation of some of the legislative powers to the administrative authorities.
• Scope of Experimentation:
As the administrative law is not codified law, so there is enough scope of modification. As per
the modification it as per the requirement of the state’s machinery. Hence, it is more flexible
and the rights legislating the procedure need not be followed again and again.
• Increasing demand from people:
There was an increase in the demand for the from the people because merely defining the rights
of the citizens was not sufficient but state needs to solve problems as well.
• To take preventive measures:
Administrative authorities can take preventive measures like licensing, rate fixing etc. They
can also take effective measures for the enforcement of preventive measures like enforcement
of suspension, revocation or cancellation of license, destruction of contaminated articles.
• Increasing population
Increase in the population creates a burden upon the legislative processes to implement various
laws for various needs of the growing population.

Case Laws –
DS Nakara vs Union of India (1983)
Supreme Court held that in the case of a pension providing scheme to the government servants
retiring before a particular date, there was discriminatory policy based on a fixed ‘cut-off’ date.
It was held that such a decision would be arbitrary, discriminatory and ultra-vires.

Air India vs Nargesh Meerza (1981)

A regulatory provision which was framed by the Air India provided with the terms and
conditions which held that in case the Air-Hostess would be pregnant, she would be terminated
from the service. It was thereafter held that in such a case, there would be a violation of the
Article 14, 15 and 21 of the air-hostess. It was held that such a law would be violative of the
constitution and hence is arbitrary in nature.
Q5. RED LIGHT THEORY –
Introduction:
The notion of traffic light theories i.e. red and green light theories in administrative law was
first used by Harlow and Rawlings in assessing the objectives of administrative law. These
theories emerged as a result of extensive intellectual debates on the relevance of judicial control
over executive actions.
➢ The Red Light Theory is believed to have originated from the laissez-faire political
tradition of the 19th century. This tradition held deep-rooted suspicion towards
executive power and sought to minimize the encroachment of the state on the rights
(especially property rights) of individuals.

➢ The concept of “legal sovereignty” by Dicey portrays the idea of red light theory as he
maintains that the government must function in accordance with the legal rules laid
down by the Parliament.

➢ Thus, under circumstances wherein the government does not act according to these
determined rules, the courts have a power to control it and ensure that it acts lawfully.

➢ The red light theory is closely associated with the principle of ‘self-correcting
democracy’ in which the rule of law remains a prime concept.

➢ A major assumption of this theory is that when public bodies or executive authorities
exceed their powers, judicial intervention works as a sanction.

➢ This is because bureaucratic and executive power of the state and its institutions, if
unchecked, will threaten the liberty of all individuals. Thus, judicial control is required
in the political framework of a state.

➢ The red light theorists also believe that the judiciary possesses its own standards of
independence and fairness and can be relied upon, in examining the legality of
executive action.

➢ Hence, it can be used as an effective mechanism for check and balance in a state system.
These are the various tenets of this theory:
• Courts are the primary weapon for protection of the citizen and control of the executive.
• The supremacy of law must prevail over politics.
• The administrative authorities must be kept under judicial control.
• Public law must be oriented towards strengthening individual liberties.
• The world of law is neutral and independent of the world of government, politics and
administration.
• Administrative law should aim to curb or control the state.
 ➢ Therefore, the red light theory emphasizes on law as an instrument for the control of
power and protection of individual liberty.

➢ As explained by Dicey, this theory looks to the model of the ‘balanced constitution’
accommodating the judicial control of executive power as subject to political control
by the Parliament through legislation of strict rules and to legal control through judicial
monitoring by the courts.

Q5. GREEN LIGHT THEORY –

➢ Multiple critiques and challenges to the red light theory, an alternative tradition arise
between the two world wars. This tradition constituted a counter theory to the red light
theory termed as the “green light theory.”

➢ This theory maintains that the use of executive power to provide services for the benefit
of the community is entirely legitimate.

➢ Thus, the function of the courts in checking executive action is a questionable activity.

➢ However, It does not favor unrestricted or arbitrary action of the state.

➢ Holds a positive outlook towards the state.

➢ Believes that the government is pleasant and it cannot be suspected of committing

unlawful actions.

➢ Emphasizes on how it is important for the administrative law to facilitate government

action rather than intervening in it through judicial or political control.

➢ Suggests how law can be used as an enabling mechanism so that it acts as a weapon to
the administrative bodies.

➢ Holds that collective goals of the society can be achieved through the democratic
framework.

➢ Hence, this theory does not aim to derogate individual rights or refute the core values
and norms of a democratic society.
These are the various tenets of this theory:
• Law is merely a matter of political discussion. Thus, law is not superior to
administration or cannot prevail over administration.
• Public administration is not a necessary evil but a good element of the state.
• Administrative law should not only focus towards prohibiting negative practices of the
government. It should also work on facilitating the administration and sound
administrative practices.
• There can be other alternatives to courts.
 ➢ Main concern of green light theory is to reduce the influence of courts over
administration because the courts with their legal values are considered as a hurdle to
administrative progress.

➢ Prefers democratic form of accountability.

➢ Based on these assumptions, green light theorists assent in facilitating the

administration through prevention of any judicial or legal control over executive
actions.

1.2 BASIC CONSTITUTIONAL PRINCIPLES –

Q1. RULE OF LAW–
Introduction:
According to Plato the meaning of rule of law is that it is supreme in nature and nobody is
above the law.
According to Aristotle has written that law should be the final sovereign of the state.
➢ 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.

Dicey is one of the well known jurists of England and he has written a famous book “Law of
the Constitution”. In this book, he develops this concept and he identifies 3 principles while
establishing the rule of law.
➢ “No man is punishable except for a Distinct breach of Law” before the ordinary court.
The government or any high-class authority cannot punish any individual on the
personal ground till the time an individual has committed an offence and if the offence
is committed then proper procedure and trail will be conducted and in case the final
verdict is that the offence is committed then physical or economic punishment will be
given to the accused person. This clearly indicates that even if 100 criminals are not
arrested is ok rather than punishing one innocent person.

➢ “No man is above the law” every man, whether he is from a higher rank or whatever
his position is subjected to ordinary law under the jurisdiction of the ordinary court.

➢ “No man will be derived from his personal property” until the time he has breached any
law established by the ordinary court.
The principle of Rule of law is accepted by Article 14 of the Constitution and it has 2 main rule
that no man is above the law and no man is punishable except for a breach of law and the last
rule given above is not accepted by our constitution. So, the first and second rule applies to the
constitution but the third rule of dicey is not accepted by our Indian system.
Principles of Rule of Law:
• Law is supreme and nobody is above the law.
• All the things should be done according to a law not as per whim.
• No person should be suffered except for the breach of law.
• Equality before the law and equal protection of the law.
• Speedy trial.
• The fair and just procedure should be conducted.

Case Laws –
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.
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.
Today the dicey theory of Rule of law cannot be accepted in total.
➢ According to this, the Rule of the law says that the function of the government in a free
society is to exercise and create a condition in which the dignity and respect of an
individual are increased or upheld.
➢ It does not only recognize civil or political rights but the introduction of certain social,
political, economic, and educational etc. which are necessary for the full development
of personality.

According to Davis, there are 7 types of Modern law:

• Law and orders.
• Principle of Natural law.
• Fixed rules and regulations.
• Eliminate the idea discretion.
• Due and fair process of law.
• Preferences for judges and court of law to executive authority and administrative
tribunals.
• Judicial review of administrative action.
How Freedom of Speech and Expression is an integral part of the Rule of law:
Freedom of Speech and expression is one of the important fundamental rights given under the
Constitution for every individual to enjoy it fully. Freedom of speech and expression should be
used in a very delicate manner because while expressing the idea, thought it should not defame
or hurt the sentiments of any individual or religion view and without the fear of getting
punished for any offensive act.
Conclusion:
The idea of the Rule of law was not totally perfect. Rule of law has taken charge of
administrative powers and understated them with their measures and this concept was adopted
by various countries as a watchdog of the constitution. The modern concept given by David
was a broad concept as well as possible for the government to use it in a graceful manner and
administrative law main task was to fulfil the gap between power and liberty.

Q2. SEPARATION OF POWERS –

➢ 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.

➢ 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:
1. Aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable
and democratic form of government.
2. Prevents the misuse of powers within the different organs of the government.. 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. Keeps a check on all the branches of the government by making them accountable for
themselves.
4. 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.
5. 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 –
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.

Indian Constitution & Separation of Powers:

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.

Case Laws –
A.K Gopalan versus State of Madras
“ 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.”
Merits:
• Creating system of checks and balances
• Protection of liberty and rights
• Improvement in government efficiency
• Prevents abuse of authority
Demerits:
• Misreading of the British system
• Not completely achievable
• Cause Confusion

1.3 Classification of Administrative Functions:

MODULE – II
2.1 Delegated Legislation:
Delegated legislation is also known as secondary or subordinate legislation, is a form of law
that allows an individual or body under powers conferred to them by an Act of Parliament to
make laws. These individuals or bodies could include government ministers, local authorities,
or corporations.
The key characteristic of delegated legislation is that it involves passing the law-making powers
from the higher authorities (usually the legislative) to the lower authorities. The purpose behind
this is to save legislative time, respond quickly to new developments, and allow for flexibility
and expertise.

Q1. REASONS FOR GROWTH –

There are many reasons for rapid growth of delegated legislation in todays’ world, some of
them are:
• Pressure upon time of Parliament: The Parliament provides the broad outline of
legislation, leaving the details to be filled by the executive or its subordinates, ensuring
the necessary rules and regulations are followed for a functioning law.

• Technicality in the matters: In today's complex and advanced society, matters have
become more intricate and technical. To comprehend the intricacies of various topics,
the legislature requires experts who possess in-depth knowledge of specific matters.

• Flexibility: Delegated legislation provides flexibility and expedites the lawmaking

process by involving the executive branch, enabling swift regulation in areas like
police, banking, trade, and foreign exchange.

• Emergency: In times of emergency or crisis, quick action is needed, and the legislature
may not possess the necessary skills to provide immediate solutions. Delegated
legislation becomes crucial in such situations, allowing the executive to have broad
powers to address emergencies.

• Experiment: Delegated legislation allows the Executive to experiment with new laws
and assess their effectiveness. This approach enables the utilization of experience and
 implementation of necessary changes based on the application of provisions,
considering the interests and impact on people at the ground level.

• Complexity of modern administration: Modern administration has taken on

additional responsibilities in areas such as employment, health, education, and trade
regulation, leading to increased complexity.

Q2. CONSTITUTIONAL VALIDITY –

Delegated legislation's position and constitutionality in India can be illustrated through several
court cases, which can be categorized into two phases:
The period before independence (pre-independence) and
The period after independence (also referred to as post-independence).
• Pre Independence Era –
Prior to India gaining independence, the Government of India Act, 1935, governed the legal
system. Under this Act, legislative powers were delegated to the executive branch, enabling
them to create laws in specific domains.
In the case of Queen v. Burah (1878), the Privy Council authorized conditional legislation.
This meant that the power of the legislature was transferred to the executive. In particular, the
administration of civil and criminal justice in a territory could be entrusted to officials selected
by the Lieutenant-Governor on a regular basis.
In another case, King v. Banwari Lal Sharma, the Privy Council once again applied legislative
conditions, similar to what they did in Queen v. Burah.
In this case, the validity of the Governor-General of India's Emergency Ordinance was
challenged, among other things. The Governor-General was establishing special criminal
courts for specific types of offenses, but only the Provincial Government had the authority to
establish courts.
The Privy Council considered this situation to be different from delegated legislation.
They explained that it represented an exceptional legislative authority where the local
administrative body determines the application of state legislation within its locality as and
when required.
To put it simply, in Queen v. Burah, the Privy Council authorized transferring legislative power
to the executive for the administration of justice. In King v. Banwari Lal Sharma, they upheld
the Governor-General's power to establish special courts, as it was seen as an exceptional
legislative authority granted to the local administrative body.
 • Post Independence Era –
After India gained independence and adopted its Constitution in 1950, the framework for
delegated legislation underwent significant changes. The Constitution of India explicitly
recognized and allowed for delegated legislation. It empowered the legislature to delegate its
legislative powers to other entities, with certain limitations and safeguards.
In the case of Raj Narain Singh v. Chairman, Patna Administration Committee (1954), the
Supreme Court of India upheld the delegation of power from the legislative body to the
executive body. This case specifically empowered the local government to extend provisions
of the Bengal Municipality Act.
The Indian Constitution does not expressly prohibit the delegation of legislative power by the
legislature. However, there are two constitutional limitations on legislative delegation, as
established in the case of Re Delhi Laws Act (1951):
• The legislature cannot delegate its essential legislative functions.
• The power conferred on a subordinate authority or executive body should not suffer
from excessive delegation.
In simpler terms, the Supreme Court, in the Raj Narain Singh case, allowed the legislature to
delegate power to the executive body. However, the Constitution imposes two limitations on
this delegation: the essential legislative functions must remain with the legislature, and the
delegated power should not be excessively broad or unlimited.

Q3. DOCTRINE OF EXCESSIVE DELEGATION –

The doctrine of excessive delegation under Administrative Law holds that if a legislative body
excessively delegates its authority to another entity, such delegation can be deemed
unconstitutional.
The legislature is required to establish the policy of the law, set forth legal principles and
provide standards for the guidance of the delegated authority in promulgating regulations.
Failure to do so may render the law invalid due to excessive delegation. This issue arises
particularly when essential legislative functions are delegated beyond reasonable bounds.
The nature and scope of excessive delegation are grounded in the understanding that
Parliament, as a legislative body, does not inherently possess absolute legislative power; rather,
it has been granted such power by the constitution.
Parliament is obligated to exercise this power itself, as mandated by the Constitution and cannot
simply delegate it to the executive branch. The delegation of essential legislative functions to
the executive is constitutionally impermissible. Essential legislative functions include the
determination of legislative policy and the formulation of rules of conduct.
• Court’s View on Excessive Delegation:
Challenges to the validity of enactments based on delegated legislation present complex legal
issues. Judicial opinions vary on how to address such challenges. If the legislature establishes
the principles and guidelines underlying a statute and provides adequate direction for their
implementation, it is generally permissible for the legislature to delegate the actual
implementation to its chosen delegate.
• Principles Governing Excessive Delegation:
The determination of whether excessive delegation has occurred is guided by three overarching
principles:
Essential Legislative Functions: The legislature cannot delegate its core functions, which
include enacting laws and establishing legislative policies.
Practical Considerations: Given the complexities of modern conditions, it is impractical for the
legislature to foresee and address every conceivable scenario in detail. Therefore, the
legislature may delegate certain functions provided it sets clear legislative guidelines.
Lawful Delegation: Delegation to the executive is permissible if done in a lawful manner and
such delegation cannot be deemed excessive solely because the legislature could have provided
more detailed provisions.
• Excessive Delegation – Perspective of Indian Courts
The principle of excessive delegation holds paramount importance within the Indian legal
framework, as it safeguards the integrity of due process by underscoring the necessity of
delegation while cautioning against unjustified and excessive transfer of powers to
administrative bodies. It is established that legislative bodies may delegate authority only
within the confines of a skeletal structure and defined limits established by the legislature itself.
In the United States, the delineation of permissible delegations emerged in the 19th century,
notably in the case of Wayman v. Southard, where distinctions were made between “important
subjects” and “mere details.” The courts recognized that while general provisions could be
established, the power to fill in the details could be granted to designated authorities.

Q4. FORMS/TYPES –
Delegated legislation comes in various forms, each characterized by its unique elements and
purposes. Here are the main types of delegated legislation:
• Executive Legislation: Executive legislation involves the creation of rules and
regulations by the executive branch of the government. Executive legislation powers
are exercised by the central government, state governments, and administrative
agencies.
For instance, the Ministry of Finance can issue regulations under the Income Tax Act to
provide guidelines for implementing tax laws and determining tax liabilities.
• Subordinate Legislation: Subordinate legislation refers to the laws created by
authorities subordinate to the legislature. It encompasses the rules and regulations
formulated by local authorities, municipal corporations, or panchayats to govern
specific areas or regions within the country.
For example, a state government may delegate legislative power to municipal corporations to
create rules regarding local taxation, building codes, or zoning regulations.
• Orders in Council: These are issued by the Queen and Privy Council, often used for
situations of national importance.

• Statutory Instruments: This is the most common form of delegated legislation,

typically issued by government ministers. These orders help clarify legal provisions and
ensure uniformity in their application.
For example, the Reserve Bank of India (RBI) issues circulars and notifications to banks and
financial institutions to regulate banking operations, monetary policies, and compliance
standards.
• By-laws: These are laws created by local authorities or certain public corporations and
apply to specific geographical areas or industries. Bylaws and rules are regulations
formulated by statutory bodies or authorities to govern specific sectors, professions, or
organizations. These laws are often created to regulate professional bodies, educational
institutions, or specific industries.
For instance, the Medical Council of India (MCI) formulates bylaws and rules to govern the
conduct, qualifications, and standards of medical professionals in the country.

2.2 Safeguards and Controls on Delegated Legislation:

Q1. JUDICIAL CONTROL OVER DELEGATED LEGISLATION –
When the parent act is ultra vires the constitution: If the parent act itself violates the provisions
of the constitution, it is considered void and unconstitutional. In such cases, any delegation of
legislative powers made under the parent act is also rendered void.
The courts have the authority to strike down both the parent act and the delegated legislation if
they are found to be in violation of constitutional provisions.
• Delegated legislation not authorized by the enabling act: Delegated legislation
derives its authority from the enabling act, which sets out the scope and limits of the
delegated powers. If the delegated legislation exceeds the authority granted by the
enabling act, it can be invalidated by the courts.
The courts ensure that the delegated legislation remains within the boundaries established by
the enabling act and does not go beyond the powers conferred upon the delegate.
• Delegated legislation is ultra vires the constitution: In certain cases, the parent act
may be constitutional, but the delegated legislation made under it may violate the
constitution.
For example, if the delegated legislation infringes on fundamental rights or contravenes other
constitutional provisions, it can be struck down by the courts.
The courts examine the constitutionality of the delegated legislation separately from the parent
act and ensure that it does not exceed the limits imposed by the constitution.
 • Delegated legislation is ultra vires the parent act: The validity of delegated
legislation can be questioned if it is found to be beyond the scope of the powers granted
by the parent act. The courts examine whether the delegated legislation stays within the
boundaries set by the parent act. If the delegated legislation exceeds the authority
conferred by the parent act, it can be deemed ultra vires and invalidated by the courts.

• Delegated legislation is ultra vires any general law or rule of law: Delegated
legislation can be challenged if it contradicts or renders an existing law unlawful. The
courts ensure that delegated legislation does not make lawful what is otherwise
unlawful. If the delegated legislation is found to be in conflict with established general
laws or the principles of the rule of law, it can be declared ultra vires and struck down
by the courts.

• Unreasonableness: Generally, a statute cannot be challenged on the grounds of

unreasonableness. However, if delegated legislation is considered unreasonable based
on the circumstances of a particular case, it may be invalidated by the courts.

• Mala fide: Challenging delegated legislation on the grounds of bad faith or ulterior
motives is challenging to prove. Courts may examine the intentions and actions of the
delegatee to determine if there was a malicious or improper purpose behind the
enactment of the delegated legislation.

Q2. LEGISLATIVE CONTROL OVER DELEGATED LEGISLATION:

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.
Due to a delegation of power and general standards of control, the judicial control has
diminished and shrunk its area.
In India “Legislative control” is an inherent constitutional function because the executive is
responsible to the legislature at two stages of control.
A) Initial stage
B) Direct and Indirect stage
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.
a) Direct control
b) 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.
 • Simple Laying
• Negative Laying
• 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.
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 whether
rule are according to general object of the act.

2.3 Principles of Natural Justice:

Q1. RULE AGAINST BIAS –
• 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.
Type of Bias:
• 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.

• 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.

Q2. AUDI ALTERAM PARTEM –

It simply includes 3 Latin word which basically means that no person can be condemned or
punished by the court without having a fair opportunity of being heard.
In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of
being heard.
The literal meaning of this rule is that both parties should be given a fair chance to present
themselves with their relevant points and a fair trial should be conducted.
This is an important rule of natural justice and its pure form is not to penalize anyone without
any valid and reasonable ground. Prior notice should be given to a person so he can prepare to
know what all charges are framed against him. It is also known as a rule of fair hearing. The
components of fair hearing are not fixed or rigid in nature. It varies from case to case and
authority to authority.
Components:
• Issuance of notice– Valid and proper notice should be given to the required parties of
the matter to further proceed with the procedure of fair trial method. Even if the statute
does not include the provision of issue of notice then it will be given prior to making
decisions. This was held in the case of Fazalbhai vs. custodian.
In the case of Kanda vs. Government of Malaya, the court held that notice must directly and
clearly specify on the matter of bias, facts and circumstances against which needs to be taken.
It’s one of the rights of the individual to defend himself so he should be familiar with the
relevant matter so he may contradict the statement and safeguard himself.
The notice should be with regard to the charges framed against the accused person and
proceeding to be held. He can only be punished on the charges which are mentioned in the
notice, not for any other charges.
• Right to present the case and evidence– After receiving the notice he must be given
a reasonable time period to prepare and present his case in a real and effective manner.
The refusal should not be done on the unreasonable ground or due to arbitrary.
 • Right to Cross Examination– Right of fair hearing includes the right to cross-
examination the statement made by the parties. If tribunals denied the right to cross-
examination then it will violate the principles of natural justice. And all the necessary
copies of documents should be given and failure of that will also encroach the principle.
The department should make available officers who are involved in the procedure of
investigating and do cross-examination.
In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath
Mishra vs. Rajendra Medical College, under this case a male student was charged off some
indecent behaviour towards a female student. So, here the right to cross-examination was
denied for the male student as it will lead to embracement for the female student and it will not
also lead to violation of natural justice.
Sometimes it becomes very necessary to keep the identity confidential as there is a threat of
life and property. And the same situation was faced in the case Gurubachan Singh vs. the State
of Bombay.
Let’s take an illustration, In the matter where lawyer and client are involved so, nobody can
force a lawyer to reveal what all information is given by the client to the lawyer in relation to
the case.
In the case of Ludhiana food product, the court held that If the party itself refuse to cross-
examine the witness then it will not fall under miscarriage of natural justice.

• Right of Legal representative– In the process of enquiry, every party has the right to
have a legal representative. Each party will be presented by the legally trained person
and no one can deny (A.K.Roy). Similarly, the department has the same right to direct
its officer even though there are investigating officer in conducting an adjudicating
proceeding (Sanghi textile processor vs. Commissioner).

Exceptions:
During the Emergency period
Public interest
Express statutory provision

Q3. POST DECISIONAL HEARING –

Pre-decisional hearing is a hearing managed before making a choice or sanctioning an order.
Post-decisional hearing, as opposed to its counterpart, is a hearing given by the adjudicating
authority subsequent to making a choice or a decision.
• The principle of the post-decisional hearing was propounded by the Supreme Court in
Maneka Gandhi v. Union of lndia.
For this situation, the Supreme Court set out the rule that if in the interest of the general public,
quick action was fundamental and it is impractical to manage the cost of a hearing before the
decision, it ought to be managed after the decision. The passport of the petitioner who also
happened to be a journalist was seized by the Government of India in light of a legitimate
concern for public wellbeing.
The petitioner was not given any chance before making the impugned move. At the point when
the legitimacy of the impoundment request was checked, the Government battled that the use
of the audi alteram partem rule would have gone against the very reason for seizing the
passport.
Despite the fact that the Supreme Court dismissed the conflict, it acknowledged the principle
of post-decisional hearing in instances of outstanding nature.
• A similar methodology was employed by the Supreme Court in Swadeshi Cotton Mills
v. Union of lndia where a void administrative choice was approved by post-decisional
hearing. An order assuming control over the administration of an organization by the
Government without earlier notice or hearing was held to be bad as it abused the audi
alteram partem rule. Be that as it may, the Court approved the impugned order on the
grounds that the Government had consented to give post-decisional hearing.

• In Liberty Oil Mills v. Union of lndia a request for examination was tested on the ground
of contravention with the principles of natural justice. The Supreme Court saw that
maybe that the chance to be heard may not be pre-decisional, it might essentially be
post-decisional where the danger to be averted is imminent, or the action to be taken
can brook no delay.
The application of this doctrine does not come with a strait jacketed formula but is rather based
on the facts and the situation of the case. In the event where pre-decisional hearing cannot be
applied, post-decisional hearing can come to the rescue.

Q4. REASONED DECISIONS –

Basically, it has 3 grounds on which it relies:-
• The aggrieved party has the chance to demonstrate before the appellate and revisional
court that what was the reason which makes the authority to reject it.
• It is a satisfactory part of the party against whom the decision is made.
• The responsibility to record reasons works as obstacles against arbitrary action by the
judicial power vested in the executive authority.

Q5. EXCEPTIONS TO PRINCIPLES OF NATURAL JUSTICE –

• Doctrine of necessity and absolute necessity:
Doctrine of necessity is an exception to the rule of bias under natural justice. It allows
authorities to do certain things which are necessary to be done at the moment, and those acts
which would in a normal situation not be allowed by the law.
The Supreme Court has although established that the Doctrine of Necessity should not be
invoked every now and then for even small matters, which might lead to absence of rule of law.
In doctrine of necessity, there are options to decide whether a biased person should be allowed
or not. Under the doctrine of absolute necessity, it is absolutely necessary to let the case of a
biased person be decided.
• Statutory exceptions to the rule of natural justice:
The principle of natural justice can be excused by certain acts of the parliament. Parliament
may through its powers get rid of the procedures that are otherwise necessary for any
administrative action. Any action of the parliament which does not permit the individuals
certain rights during the time period of the act, such act is bound to come under the scrutiny of
the courts and may be challenged under Article 14 of the Constitution.
• Exception during situations of emergency:
India has witnessed its share in situations of emergencies. In those cases where the right to be
heard will affect the government process, it will be excluded by the law for the time being. This
means that any hearing or any process which may jeopardize the interest of the public at large
would not be needed under the principle of natural justice and any such right would be obviated
for the time being.
• Exception where no right of an individual has been infringed:
Where a person does not have any right, and neither can he derive any right from any statute
or any common law provision, he cannot ask for a remedy in that case under the principles of
natural justice, and he may in such case forfeit procedural fairness. So naturally, in cases where
there arises no right, no remedy can be granted.
• Exception in cases where public interest is of importance:
In those situations, considering the welfare of the public at large, it is important to not dispense
any such information which may put the safety of the public at threat. State must make sure
that it should not compromise the security of its territory, and that it should protect all the
information that it has which is of public importance.
• Exception in cases of impracticality:
This is one of the simplest exceptions to the rule of natural justice. Natural justice can be
applied only when it is practical in nature to apply it. But natural justice can be excluded when
there is no practicality to the situation in it. In Bihar School Examination Board vs. Subhash
Chandra, the examination board conducted class X board exams. But it was alleged that there
was mass copying in the exams, and during the checking it was on first view found that there
has been mass copying.
• Exception in cases of academic evaluation:
In cases where the authority involved is academic in nature, or if the authority is of complete
administrative nature, in such cases, their evaluations may be excluded from the ambit of the
rule of natural justice.
 MODULE – III
3.1 Administrative Tribunals:
Q1. CHARACTERISTICS –
• Administrative tribunals must have statutory origin i.e. they must be created by any
statute.
• They must have some features of the ordinary courts but not all.
• An administrative tribunal performs the quasi-judicial and judicial functions and is
bound to act judicially in every circumstance.
• They are not adhered by strict rules of evidence and procedure.
• Administrative tribunals are independent and not subject to any administrative
interference in the discharge of judicial or quasi-judicial functions.
• 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.
• These tribunals are bound to abide by the principle of natural justice.
• A fair, open and impartial act is the indispensable requisite of the administrative
tribunals.
• The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals.

Q2. DISTINCTION –
Courts:
• A Court of law is a part of the traditional judicial system.
• It is strictly bound by all the rules of evidence and by the procedure of the Code of Civil
Procedure.
• It is presided over by an officer expert in the law.
• The decision of the court is objective in nature primarily based on the evidence and
materials produced before the court.
• It is bound by precedents, the principle of res judicata and the principle of natural
justice.
• It can decide the validity of legislation.

Administrative Tribunal:
• The administrative tribunal is an agency created by a statue endowed with judicial
powers.
• It is not bound by the rules of the Evidence Act and the CPC unless the statute which
creates the tribunal imposes such an obligation.
• It is not mandatory in every case that the members need to be trained and experts in
law.
• The decision is subjective i.e. at times it may decide the matters taking into account the
policy and expediency.
 • It is not obligatory to follow precedents and principle of res judicata but the principle
of natural justice must be followed.
• It cannot decide the validity of legislation.

Q3. WORKING OF 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.
• 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 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.

• Powers and Procedure:

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. Issuing commissions for the examination of witnesses and documents;
8. Reviewing its decisions;
9. Deciding the case ex-parte;
10. Setting aside any order passed by it ex-parte;
11. Any other matter prescribed by the Central Government.
 • Advantages:
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.
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.

3.2 Administrative Discretion & Judicial Control, Judicial Remedies against

administrative Arbitrariness:
Q1. NEED FOR CONFERRING DISCRETION ON ADMINISTRATIVE
AUTHORITIES –
In Rooke's Case, Lord Edward Coke laid down the definition of discretion as, "a science or
undertaking to discern between falsity and truth, between right and wrong, between shadows
and substance, between equity and colourable glosses and pretences, not according to the will
and private affections".
Administrative discretion implies the authority vested in the executive i.e. the public officials
to undertake administrative action based on their judgment.
Need of Administrative Discretion:
The doctrine of laissez faire was prevalent when Dicey formulated the rule of law. The role of
the then police state was limited confined to the maintenance of law and order. With the sharp
decline of the doctrine of laissez faire over the years, more and more countries adopted the
concept opt a welfare state and an urgent need was felt for economic development and social
change. Today, whether in socialistic countries or in capitalist societies, it is impossible to find
a government that can function without conferring discretionary power to the executive.
The Supreme Court has observed in the case of Paschim Banga Khet Mazdoor Samity v. State
of West Bengal, "The Constitution envisages the establishment of a welfare state at the federal
level as well as the state level. In a welfare state the primary duty of the government is to secure
the welfare of the people".
Administrative discretion comes to the rescue in problems where direct legislation is not
possible. Optimum utilisation of resources is a pre-requisite to create a welfare state.
It also seeks to regulate enterprise and the supply of goods and services. The implementation
of the aforementioned welfare schemes is possible only through proper administration. Amid
social and economic development, various offences also take place like economic smuggling,
adulteration, tax evasion etc that need to he curbed.
Referring to administrative discretion, Wade says, "If discretionary power is to be tolerable it
must be kept under two kinds of control: political control through Parliament and legal control
through judiciary".
Q2. GROUNDS OF JUDICIAL REVIEW –
• No law can clothe administrative action with a complete finality even if the law says
so, for the courts always examine the ambit and even the mode of its exercise to check
its conformity with fundamental rights.
• The courts in India have developed various formulations to control the exercise of
administrative discretion, which can be grouped under two heads:

• ABUSE OF DISCRETION:
1. Malafides-
➢ If the discretionary power is exercised by the authority with bad faith or dishonest
intention, the action is quashed by the court.
➢ Malafide exercise of discretionary power is always bad and taken as abuse of
discretion.
➢ Malafide may be taken to mean dishonest intention or corrupt motive. In relation to
the exercise of statutory powers it may be said to comprise dishonesty and malice.
2. Irrelevant considerations-
➢ If a statute confers powers for one purpose, its use for a different purpose is not
regarded as a valid exercise of power and is likely to be quashed by the courts.
➢ If the administrative authority takes into account factors, circumstances or events
wholly irrelevant or extraneous to the purpose mentioned in the statute, then the
administrative action is vitiated.
3. Arbitrary orders-
➢ The order made should be based on facts and cogent reasoning and not on the whims
and fancies of the adjudicatory authority.
4. Improper Use-
➢ The discretionary power is required to be used for the purpose for which it has been
given. If it is given for one purpose and used for another purpose it will amount to
abuse of power.
5. Exceeding Jurisdiction-
➢ The authority is required to exercise the power within the limits or the statute.
Consequently, if the authority exceeds the limits, its action will be held to be ultra
vires and, therefore void.
6. Colourable exercise of power-
➢ Where the discretionary power is exercised by the authority on which it has been
conferred ostensibly for the purpose for which it has been given but in reality for
some other purpose, it is taken as colourable exercise of the discretionary power
and it is declared invalid.
 • FAILURE TO EXERCISE DISRETION:
1. Acting under dictation-
➢ Where the authority exercises its discretionary power under the instructions or
dictation from superior authority it is taken as non-exercise of power by the
authority and its decision or action is bad.
➢ In such condition, the authority purports to act on its own but in substance the power
is not exercised by it by the other authority. The authority entrusted with the powers
does not take action on its own judgement and does not apply its mind.
2. Self restrictions-
➢ If the authority imposes fetters on its discretion by announcing rules of policy to be
applied by it rigidly to all cases coming before it for decisions, its action or decision
will be bad.
➢ The authority entrusted with the discretionary power is required to exercise it after
considering the individual cases and the authority should not imposes fetters on its
discretion by adopting fixed rule of policy to be applied rigidly to all cases coming
before it.
3. Acting mechanically and without due care-
➢ Non-application of mind to an issue that requires an exercise of discretion on the part
of the authority will render the decision bad in law.

Q.3 DOCTRINE OF LEGITIMATE EXPECTATION –

As a doctrine, it takes its place beside such principles as rules of natural justice, rule of law,
non-arbitrariness, reasonableness, fairness, promissory estoppel, fiduciary duty and perhaps,
proportionality to check the abuse of the exercise of administrative power. The principle at the
root of the doctrine is Rule of Law which requires regularity, predictability and certainly the
governments dealing with the public.
As the legitimate expectation doctrine gained acceptance, it was invoked in a wider range of
cases, which can be conveniently summarised into four categories:
1. The first was cases in which a person had relied upon a policy or norm of general application
but was then subjected to a different policy or norm.
2. The second category, which was a slight variation on the first, included cases in which a
policy or norm of general application existed and continued but was not applied to the case at
hand.
3. A third category arose when an individual received a promise or representation which was
not honored due to a subsequent change to a policy or norm of general application.
4. A fourth category, which was a variation on the third, arose when an individual received a
promise or representation which was subsequently dishonored, not because there had been a
general change in policy, but rather because the decision maker had changed its mind in that
instance.
Fortune case
A wanted to appear at a competitive examination. He was not permitted to appear on the ground
that his confidential file contained certain adverse remarks. In an action by A, Conseil d’Etat
went through the records and called upon the Secretary to justify the order. The Secretary
pleaded that it was an ‘Act de Government’ (Act of State) and that the Court had no jurisdiction
to deal with the matter.
He did not produce any document. The Court passed an order to produce the entire file relating
to the matter, went through it and quashed the order. In England, governed by the Rule of Law
one cannot conceive of such a situation, for the ordinary courts of law have no right to interfere
with any ‘Act of State’ or with ministerial discretion nor can they have access to secret
documents.
It held that administration must be careful not to create a situation adversely affecting innocent
persons by an unexpected change in the rules applied, or in its behavior unless such sudden
change is necessitated by the public interest. The administration is entitled to change its
decisions, but it must take appropriate steps to ensure that those likely to be affected are
informed before-hand.
This doctrine has found acceptance not only in the U.K. but also in Australia, South Africa,
Hong Kong, Singapore, New Zealand, Canada, and India.

Q4. DOCTRINE OF PROPORTIONALITY –

Doctrine of proportionality is applicable in cases where rights are violated by administrative
action and the courts scrutinize administrative conduct specifically and go to the courts Issue
about the accuracy of the authority’s choices.
The ordinary sense of proportionality is that it should not be more extreme than it should be to
achieve desired results. It means can not use canon to fire a sparrow. This philosophy, in other
words, seeks to balance means with ends.
Irrationality as a ground and legitimate expectation to challenge of any decision was developed
by the Court in Associated Provincial Picture House v. Wednesbury, later came to be known as
“Wednesbury test” to determine ‘irrationality’ of an administrative action decision of the
Administrative authority shall be deemed to be irrational
• if it is beyond the authority of law,
• if it is not based on evidence,
• if it is based on irrelevant consideration,
• if it is so absurd in its violation of logic or established moral standards that no
reasonable person may make such a decision on the facts and circumstances in question.
In other words, it is so ridiculous that no reasonable person would ever believe that it is beyond
the jurisdiction of the government. In practical sense it is the use of the doctrine.
Case Law –
In Coimbtore District Central Coop Bank v. Employees Association
The Supreme Court held that through the use of the doctrine of proportionality court would not
allow administration to use a sledgehammer to crack a nut where a paring knife would suffice.
It is thus a concept that courts should analyze administrative objectives and procedures for
making a decision or reversing a decision. Yet courts have also sought to balance this theory
with the’ flexibility’ theory.

Q5. PUBLIC ACCOUNTABILITY –

The application of the doctrine of Public Accountability on a practical basis in India has not
been so successful because of the many hindrances it has been facing.
There have been many systems which have been put into place for the purpose of formal
accountability such as laws for Right to Information and e-governance but they have not been
not been working their fullest potential. For example, the RTI Act of 2005 was one of the best
acts passed in the year 2005 but the enforcement and monitoring of the same has been ignored.
The government has formulated mandates and provided the public agencies with the necessary
funds but they have not instilled the necessary efforts for the proper assessment and required
penalties to hold these agencies accountable. Despite the regular conduct of parliamentary
reviews and auditing of accounts publicly, the follow-ups have always left a necessity for even
more transparency. It is very much visible in the current scenario that formal mechanisms of
accountability tend to work only when there is guarantee of actual accountability on ground.
In the context of administrative law, the growth and advancement of the doctrine of Public
Accountability has led it in playing a crucial role in creating a firm check in the case of any
misuse of power by the government servants and creating a speedy and just method of relief to
the victims who have suffered any exploitation.
The underlying principle of the doctrine of public accountability is that the power and
discretion held by the administrative authorities is subjected to the public trust which is placed
in their hands and the same must be exercised only in the realization of such a conviction.
Case Law –
DDA v. Skipper Construction Corporation
The priority in this case was given to the general public and were defrauded despite not being
aware whether there existed a fiduciary relationship or not and whether a police officer was
involved in the same or not. It was held that the respondent is “authorized to pass orders
irrespective of the above-mentioned requirements which includes even the illegal acquirement
of properties.”
3.3 Liability of Government for wrongs:
Q1. TORTIOUS LIABILITY –
Tortious liability of the state refers to the legal responsibility of the government or state entities
for civil wrongs, or torts, committed by their agents or representatives. This liability allows
individuals to seek compensation when they suffer harm, injury, or property damage due to the
negligent or intentional actions of the state or its employees.
Historically, India adhered to the doctrine of sovereign immunity, but this has been significantly
modified. The government can be sued for its actions in areas where it has expressly waived
immunity, such as contract disputes or certain tortious claims.
Article 300 of the Indian Constitution provides that the Government of India and the
governments of the states may sue or be sued by the name of the Union of India and the States,
respectively. This lays the foundation for the state’s liability in civil cases.
Types of Tortious Liability:
Tortious liability encompasses a variety of civil wrongs, or torts, for which an individual or
entity can be held legally responsible. Here are some common types of tortious liability of
state-
1. Negligence:
Definition: The state can be held liable for negligence when its actions or inactions fall below
the standard of care, resulting in harm to individuals or property.
Example: Failure to maintain public infrastructure leading to accidents.
2. Nuisance:
Definition: State activities that cause unreasonable interference with an individual’s use and
enjoyment of their property may lead to liability for nuisance.
Example: Government construction projects causing excessive noise or pollution.
3. Defamation:
Definition: The state can be held liable for making false statements that harm the reputation of
individuals or entities.
Example: Government officials making false statements about a private citizen.
4. Assault and Battery:
Definition: Liability may arise if state employees engage in intentional harmful actions, such
as assault or battery.
Example: Excessive use of force by law enforcement officers.
5. False Imprisonment:
Definition: The state may be liable for wrongfully restraining the freedom of an individual.
Example: Unlawful arrest or detention by government agents.
Case Law –
In Nobin Chunder Dey V. Secretary of State , the Calcutta High Court gave full effect to the
remarks in rejecting the plaintiff’s plea for damage against wrongful refusal to him of a license
to sell certain excisable liquors and drugs resulting in the closure of his business on the ground
that grant or refusal of a license was a sovereign function lying beyond the reach of the tortuous
liability of the State.

Q2. SOVEREIGN IMMUNITY–

Sovereign immunity is a legal doctrine that historically shielded the government or sovereign
entity from being sued without its consent. This principle originated from the notion that the
king or sovereign authority should not be subjected to the jurisdiction of its own courts.
While sovereign immunity has ancient roots, its application has evolved over time, and many
legal systems have modified or waived it to a certain extent.
Absolute vs. Qualified Sovereign Immunity –
Absolute Immunity: Historically, sovereign immunity was absolute, providing broad protection
against lawsuits. This meant that the state could not be sued without its consent, regardless of
the nature of the claim.
Qualified Immunity: In contemporary legal systems, many jurisdictions have moved towards
qualified immunity. This means that while the state retains a level of protection, it can be sued
in specific circumstances or for certain types of claims. Qualified immunity is often subject to
statutory provisions and limitations.
Case Law –
State of Rajasthan v Vidhyawati
In this case, the incident revolves around Lokumal, a temporary motor driver employed by the
State of Rajasthan. Lokumal was tasked with driving a government jeep, which was under the
purview of the Collector of Udaipur. On February 11, 1952, while driving the jeep back from
a workshop after repairs, Lokumal negligently hit Jagdishlal, who was walking on the footpath.
Jagdishlal sustained severe injuries, including fractures to his skull and backbone and
succumbed to these injuries three days later in the hospital.
The plaintiffs in the case were the widow of Jagdishlal and their three-year-old daughter,
represented by her mother. They filed a suit for damages against Lokumal (Defendant No. 1)
and the State of Rajasthan (Defendant No. 2), seeking compensation of Rs. 25,000. Lokumal
did not contest the suit and remained ex-parte, while the State of Rajasthan contested it on
various grounds.
Trial Court Decision:
The Trial Court decreed the suit against Lokumal, recognising his rash and negligent driving
as the cause of the accident and subsequent death of Jagdishlal. However, it dismissed the suit
against the State of Rajasthan. The court reasoned that the jeep was maintained for the
Collector’s official duties, which, in its view, excluded the state from vicarious liability.
High Court Decision:
Aggrieved by the Trial Court’s decision, the plaintiffs appealed to the Rajasthan High Court.
The High Court overturned the Trial Court’s decision regarding the State of Rajasthan, holding
it liable for the compensation amounting to Rs. 15,000. The High Court asserted that the state
is responsible for the actions of its civil service drivers and distinguished vehicles used for civil
services and those for military or public service.

State of Rajasthan v Vidhyawati established the liability of the state for the tortious acts of its
employees. The case involved a government jeep driven negligently by a state employee,
resulting in a pedestrian’s death. The Trial Court held the driver liable but dismissed the suit
against the state.
The Rajasthan High Court reversed this, holding the state liable, which the Supreme Court
upheld. The court ruled that the state, like any other employer, is vicariously liable for its
employees’ actions and rejected the notion of sovereign immunity. This decision reinforced
state accountability and clarified the interpretation of Article 300(1) of the Indian Constitution.

Q3. SOVEREIGN AND NON-SOVEREIGN FUNCTIONS –

Sovereign functions of the state can be defined as those functions where the state is not
answerable before the court of law for their performance. These functions are mainly concerned
about the defence of the country, maintenance of the armed forces of the country, and
maintenance of peace in the territory. These functions can only be performed by the state for
external sovereignty and that is why they are not amenable to the jurisdiction of ordinary Civil
Courts and are primarily inalienable functions. But apart from this, there are various sovereign
functions of the state which are not primarily inalienable which include taxation, police
functions comprising maintenance of law and order, legislative functions, administration of law
and policies, and grant of pardon.
While non-sovereign functions are those functions that are amenable to the jurisdiction of an
ordinary civil court and if the state does any tortious act or breach of contract, it will be liable
for the wrong done.

Case Law –
Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India,
The court for the first time dealt with the difference between Sovereign and non-sovereign
functions. It stated that the Secretary of the State will not be liable for its sovereign functions
and would be liable for only the commercial functions. This judgment helped the court to
understand and interpret the functions of the state when the question of liability arose. But there
was no established protocol or norm to decide which function is sovereign and which is non-
sovereign.
 MODULE – IV
4.1 Corporations & Public Undertakings:
Q1. CHARACTERISTICS –
Public corporation is an autonomous body established by government for carrying out its public
mission and services. It is created by a separate act of parliament or state legislature and
therefore also known as statutory corporation. This public enterprise is treated as an artificial
person in eyes of law having distinct identity from its owners. It can be sued or sue others in
court of law with their own distinct name and personality. Public corporation have full
autonomy over its financial affairs. It can create its own budgets, is authorized to retain as well
as utilize its earnings for business activities.
• Special Statute: The public corporations are formed by a special act of parliament or
state legislature. Such act clearly defines the power, objectives, privileges, functions,
management structure and relationship with government.

• Separate legal entity: These public enterprises have a separate legal entity with
perpetual succession and common seal. It is treated as an artificial person in eyes of law
having existence which is independent of government. Public corporation can buy, hold
or sell properties in its own name.

• Funded by the government: Public corporation generally get its capital from
government. Various financial institutions and agencies linked to government also
contributes to capital of public corporation. However, the shares of such corporations
cannot be purchased by individual investors.

• Enjoys financial autonomy: These public enterprises have financial autonomy under
which they themselves create their budget and have power to retain their earnings.
Public corporations do not have any regulatory and prohibitory statutes which are
applicable on utilization of public funds.

• Managed by board of directors: The management of these corporations is in the hands

of board of directors. These directors are nominated or appointed by the Government
with no interference in day-to-day functioning of these corporations. They are expected
to work efficiently on sound commercial principles which means that they can make
profits but not at the consumer’s expense.

• Service motive: Public corporation carry out their activities primarily with the aim of
services to public. They need to be self-supporting and earn reasonable profits.

• Own staff: These public bodies have their own group of employees who are appointed
by themselves. They are not the servants of government and nor governed by civic
service rules. A public corporation itself decides the renumeration and service
conditions of its staff.
 • Free from government control: They are completely free from any control of
government. Public corporations are free to exercise their set of powers which are
vested to them as per the act.

• Public accountability: This is one of the key features of public corporations. Although
they have autonomy over their administrative areas and finance, yet they are
accountable to legislature.

Q2. CLASSIFICATION OF PUBLIC CORPORATION –

A logical classification of public corporations is not possible, and neither Parliament nor the
courts have made any serious attempt in that direction. But jurists have tried to categorise public
corporations.
a) Commercial corporations - This group includes those corporations which perform
commercial and industrial functions. The managing body of a commercial corporation
resembles the Board of Directors of a public company. As their functions are Commercial in
nature, they are supposed to be financially self-supporting and they are also expected to earn
profit. State Trading Corporation, Hindustan Machine Tools, Indian Airlines Corporation and
Air India International are some of the commercial corporations.

b) Development corporations - The modern State is a welfare state .As a progressive state, it
exercises many non-sovereign functions also. Development corporations have been established
with a view to encourage national progress by promoting developmental activities. As they are
not commercial undertakings, they may not be financially sound at the initial stage and may
require financial assistance from the government. Oil and Natural Gas Corporation, Food
Corporation of India, National Small Industries Corporation, Damodar Valley Corporation,
River Boards, Warehousing Corporations, are development corporations.

c) Social services corporations - Corporations which have been established for the purpose of
providing social services to the citizens on behalf of government are not commercial in nature
and therefore, are not expected to be financially self supporting.In fact,as their object is to
render social service, they are not required to conduct their affairs for the purpose of earning
profits. Hospital Boards, Housing Board, Rehabilitation Housing Corporation are examples of
social services corporations.

d) Financial corporations - This group includes financial institutions, like Reserve Bank of
India (RBI), State Bank of India, Industrial Finance Corporation of India, Life Insurance
Corporation of India and Film Financing Corporation. They advance loans to institutions
carrying on trade, business or industry on such terms and conditions as may be agreed upon.
They may give financial assistance on reasonable terms to displaced persons in order to enable
them to settle and trade, business or industry (e.g.Rehabilitation Finance Corporation).
Q3. LIABILITIES OF PUBLIC CORPORATION –
• Limited autonomy:
Public corporations have limited autonomy and flexibility in reality. Their autonomy is limited
to some extent. In practice, public corporations are interfered a lot in their workings by
government officers, ministers and other politicians.
• Misuse of monopolistic power:
These corporations may misuse the monopolistic power available to them with regard to their
field of operations. Although they are indifferent to needs and issues of customers, yet they
don’t hesitate in exploiting consumers.
• Labor issues:
Public corporations faces more difficulties in bridging the gap in between the labor and
management. There are frequent demands for abnormal increase in wages by staff even if the
corporation is operating at losses. These all losses are paid out of the funds of government.
• Rigid constitution:
Public corporation has a very rigid constitution which can be changed only by amending the
statute of its formation. This reduces the flexibility of these corporations in doing its operations.
• Clash of divergent interests:
There may be conflicts among representatives of different groups in corporation’s board of
directors. These clashes influence the efficient functioning of corporation and may hamper its
growth.
• Problem in passing a special act:
A special act which need to be passed for creation of public corporation is a time consuming
and quite difficult process. The scope of establishing these corporations is very restricted.

Q4. CONTROL OVER PUBLIC CORPORATION –

In India, the different forms of control to which the public corporation may be subject to are:
• Parliamentary Control:
These public corporations are solely controlled by the government. As public authorities they
are subject to the normal controls of constitution and administrative laws to supervision by the
Minister, who in turn is answerable to Parliament, and by Courts through the control which
they exercise over administrative authorities. The annual reports of these corporations are
submitted to the government of India giving an account of the activities and then they are laid
before both the houses of the parliament.
• Control by the public:
The public also has control over the public corporations in India. These corporations are owned
by the government and created by special statutes. These corporations are autonomous in
functioning. These corporations are built up for the overall good of the nation and the public.
So the public can also control the public corporations.
• Government Control:
In the framework of economic planning in India, the policies, investment decisions and
programmes for growth and expansion of public corporations have to be co-ordinated with
national priorities and the mobilisation and allocation of resources. Similarly, wage and
employment policies of different public enterprises with implications for other enterprises and
the national economy are subjected to the same overall co-ordination.
• Central Agency Control:
Labour Ministry regulates employment policies, provides general guidance on industrial
relations and intervenes through its agencies in industrial disputes involving public enterprises.
Home Ministry has a watchdog role through the Central Vigilance Commission, Central Bureau
of Investigation, and Central Industrial Security Force.
Commissioner for Scheduled Castes and Tribes may receive direct resentations from
economically and socially backward communi-ties in regard to the placement and promotion
of their members in public enterprises.
• Judicial Control:
The judiciary also controls the public corporations in India. The judiciary has a powerful
control over the public corporations. Different powers are vested to the public corporations by
the judicial system. The judicial system consists of judges and courts. If there is any misuse of
power by the public corporations then the corporation is answerable to the judicial system of
the state of India.

4.2 Informal Methods of Settlement of disputes and Grievance Redressal Procedures:

Q1. CONCILIATION AND MEDIATION –
The aim of the conciliation process is to arrive at mutually agreeble, fast and inexpensive
dispute settlement. Section 62 discusses that the commencement of conciliation will begin
when one party sends an invitation in writing to conciliate on the point of contention to the
other party. The procedure will commence if the other party accepts the invitation in writing to
conciliate. If the other party turns down the invitation or the party who is willing for the
conciliation does not get an answer from the other party in the timeline of thirty days, then it
will be regarded as rejection of the invitation.
Advantages of conciliation:
• The process of conciliation is confidential in nature.
• It is an informal process and has a simple and uncomplicated process.
• It is flexible and the parties can also choose not to participate in the process at any point.
Disadvantages of conciliation:
• Conciliation does not posses the same the legal authority that a court proceeding has.
The decision of the conciliator is not binding legally.
• The procedure of conciliation is too informal and casual.
• There is no guarantee that the conciliation procedure will conclude successfully. The
proceedings may conclude without the parties settling their disputes.

Mediation is a process of alternative dispute resolution, and it is a voluntary and informal

process for the resolution of disputes. The mediators enable the parties to listen to one another,
mitigate risks and resolve the disputes between them harmoniously.
The mediators cannot impose their judgement on the parties, but they can recommended and
help the parties to reach a mutually accepted agreement. In mediation, both parties are obligated
to reach an agreeable outcome. The role of the parties in mediation is not to convince the
mediator but suggest a common solution which is acceptable by both parties.
Advantages of mediation:
• Mediation is voluntary, and any party can draw out from the procedure at any step of
the proceedings.
• The procedure in mediation is fast, speedy, efficient and economical.
• Mediation is very flexible and simple. It can be altered to suit the needs of every case.
Disadvantages of mediation:
• Mediation is a discretionary process and people cannot be compelled to participate in
mediation proceedings.
• The result of the mediation may depend upon the skills of the mediator. An unskilled
or inexperienced mediator may make the mediation futile and pointless.
• Mediation may conclude without the parties successfully arriving at a settlement
agreement.

Q2. OMBUDSMAN –
An ombudsman is an official who is charged with representing the interests of the public by
investigating and addressing complaints of maladministration or a violation of rights. It is an
authority appointed by the government and even by the private bodies. An ombudsman is an
intermediate person who tries to resolve the complaints which one party has raised against the
other. He is appointed to safeguard citizens against abuse or misuse of administrative power by
the executive.
In India the ombudsman is also known as the Lokpal or Lokayukta. It is mainly an anti-
corruption ombudsman of the country.
A Lokpal is at the center and a separate Lokayukta's are there for each state. Earlier the concept
of ombudsman was not adapted by India but over a period of time, there was an increase in the
need for establishing a complaints and grievance redressal mechanism. It was becoming
difficult for common man to get justice as he was becoming the victim of administrative and
political corruption. So there was a need for providing an institution which can effectively deal
with the cases of corruption and maladministration and to which the citizens may turn to
without any expenses or formalities.
In the case of Balla Rama Rao v. Office of the Baking Ombudsman it was held that, the powers
and functions and jurisdiction of the Banking Ombudsman are clearly delineated and defined.
He cannot act outside the purview of the scheme. It also stated that, the powers and duties of
the Banking Ombudsman will be in relation to the banking services.
In the case of Life Insurance Corporation of India and Anr. v. The Insurance Ombudsman and
Ors., the question arose was whether an insurance company can challenge or file a writ petition
against the decision or award of the Insurance Ombudsman. Over this the IRDA stated that, it
does not provide an opportunity or a licence to the insurer to challenge the award of the
Insurance Ombudsman in any proceedings. It urges the insurers to honour it.

Q3. LOKPAL & LOKAYUKTA ACT, 2013 –

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”. They inquire into allegations of corruption against certain public
bodies/organizations and for other related matters.
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.
Lokpal search committee:
As per the Lokpal Act of 2013, the Department of Personnel and Training needs to create a list
of candidates who are interested to become the chairperson or members of the Lokpal. The list
was then to be presented to the proposed eight-member search committee. The committee on
receiving the list shortlists the names and place them before the selection panel, headed by the
Prime Minister.
The selection panel has discretion in selecting the names from the list presented by the search
committee. In September 2018, a search committee was constituted by the government which
was headed by former Supreme Court judge Justice Ranjana Prakash Desai. The Lokpal and
Lokayukta Act of 2013 also mandates that all states must set up the office of the Lokayukta
within one year from the commencement of the Act.

Q4. CENTRAL VIGILANCE COMMISSION –

Central Vigilance Commission is the apex vigilance institution, free of control from any
executive authority, monitoring all vigilance activity under the Central Government and
advising various authorities in Central Government organizations in planning, executing,
reviewing and reforming their vigilance work.
Vigilance means to ensure clean and prompt administrative action towards achieving efficiency
and effectiveness of the employees in particular and the organization in general, as lack of
Vigilance leans to waste, losses and economic decline.
The CVC is not controlled by any Ministry/Department. It is an independent body which is
only responsible to the Parliament.
Functions of CVC?
The CVC receives complaints on corruption or misuse of office and to recommend appropriate
action. Following institutions, bodies, or a person can approach to CVC:
• Central government
• Lokpal
• Whistle blowers
A whistleblower is a person, who could be an employee of a company, or a government agency,
or an outsider (like media, higher government officials, or police) disclosing information to the
public or some higher authority about any wrongdoing, which could be in the form of fraud,
corruption, etc.
It is not an investigating agency. The CVC either gets the investigation done through the CBI
or through chief vigilance officers (CVO) in government offices.
Structure of Governance of CVC?
The Central Vigilance Commission has its own Secretariat, Chief Technical Examiners' Wing
(CTE) and a wing of Commissioners for Departmental Inquiries (CDI). For investigation work,
CVC has to depend on two external sources CBI and Chief Vigilance Officers (CVO).
Limitations of CVC?
CVC is often considered a powerless agency as it is treated as an advisory body only with no
power to register criminal case against government officials or direct CBI to initiate inquiries
against any officer of the level of Joint Secretary and above.
Although CVC is “relatively independent” in its functioning, it neither has the resources nor
the power to take action on complaints of corruption.