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ADMINISTRATIVE Law: Concept, Origin and

Development
Introduction:
 Administrative law is the branch of public law which defines the

relation between individuals and states.

 Administrative Law is that branch of law that is concerned with the

composition of power, duties, rights and liabilities of the various

organs of the Government that are engaged in public administration.

 The expression "Administrative Law" may mean two different things,

namely, (a) law relating to administration, and (b) law made by the

administration.

 The latter would itself be of two kinds. Firstly, it may be rules,

regulations, orders, schemes, bye-laws, etc., made by the

administrative authorities on whom power to make such subordinate

legislation is conferred by a statute. This may be called rule-making.

 Secondly, certain administrative authorities have power to decide

questions of law and/ or fact affecting particular person or persons

generally, i.e., adjudication. Most of such powers are exercised quasi-

judicially.

 Administrative law defines the roles, duties, and powers of

administrative bodies, and it limits the management of these bodies

to prevent them from misusing their power.

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Purpose
 Administrative law's main purpose is to protect individual rights and

interests while keeping the government's powers within legal

bounds.

 To build up excellent administrative capacity.

 To establish good governance.

 To protect individual rights.

 To protect public interest.

 To achieve social and national development.

Applicability of administrative law:

 Administrative law, also known as regulatory law, applies to all public

agencies and officials.

 Administrative law is applicable to the powers, procedures, and

acts of public administration.

Concept:

1. K.C. Davis has defined administrative law in the following words: “

Administrative Law is the law concerning the powers and procedures

of administrative agencies including specially the law governing

judicial review of administrative action.”

2. Dicey in 19th century defines administrative law as

Firstly, portion of a nation’s legal system which determines the legal

status and liabilities of all State officials.

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Secondly, defines the right and liabilities of private individuals in their

dealings with public officials.

Thirdly, specifies the procedure by which those rights and liabilities

are enforced.

3. Sir Ivor Jennings has defined, “Administrative Law as “the law

relating to the administration. It determines the organization,

powers and duties of administrative authorities.”

4. Austin has defined, “Administrative Law as the law, which

determines the ends and modes to which the sovereign power

shall be exercised.”

In his view, the sovereign power shall be exercised either directly

by the monarch or directly by the subordinate political superiors

to whom portions of those are delegated or committed in trust.

5. In the view of Friedman, Administrative Law includes the

following.
 The legislative powers of the administration both at

common law and under a vast mass of statutes.

 The administrative powers of the administration.

 Judicial and quasi-judicial powers of the administration, all

of them statutory.

 The legal liability of public authorities.

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 The powers of the ordinary courts to supervise the

administrative authorities.

Origin and Development of Administrative law:

 The origins of administrative law are debated, but there are several

theories about its development.

 Some says that view administrative law as a product of the French

Revolution.

 The scientific study of administrative law began in the early 19th

century after French revolution.

 Administrative law was existent in India even in ancient times. Under

the Mauryas and Guptas, there was well organized and centralize

Administration in India.

 The rule of "Dharma" was observed by kings and Administrators and

nobody claimed any exemption from it. The basic principle of natural

justice and fair play were followed by the kings and officers as the

administration could be run only on those principles accepted by

Dharma.

 In India, the concept of administrative law was introduced during the

British Raj. With the establishment of East India company (EIC) and

event of the British Rule in India. The powers of the government had

increased. Many Acts, statutes and Legislation were passed by the

British government regulating public safety, health, morality

transport and labour relations.

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 During the Second World War, the executive powers tremendously

increased Defence of India Act, 1939 and the rules made there under

conferred ample powers on the property of an individual with little or

no judicial control over them, In addition to this, the government

issued many orders and ordinances, covering several matters by way

of Administrative instructions.

Sources of administrative law in India:

 Constitution of India

 Acts and Statutes

 Ordinances, Administrative direction, notifications and circular.

 Judicial decision

Scope of Administrative Law:

Administrative law is limited to the powers and procedures of administrative

agencies.

 It is limited to procedure of establishment, organization and powers

of administrative bodies.

 Delegated legislations and rule making powers of the authorities.

 Judicial functions of administrative agencies.

 Remedies available writ and injuctions.

 Procedural guarantees such as the principles of natural justice.

 Government liability in tort.

 Public corporations.

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 It provides all the relevant remedies to persons whose rights are

infringed by the

operation of the organs during the course of administrative.

Need of administrative law

 To ensure a better life for the people, it is necessary to keep a check

on the administration, consistent with the efficiency, in such a way

that it does not violate the rights of the individual.

 To bring the concept of good governance into existence.

 To ensure that the governmental functions are

 exercised according to law and legal principles and rules of reason

and justice.

Difference between Constitutional law and administrative

law

 Constitutional law is the fundamental law of the nation whereas

administrative law guides the way of administration.

 Constitutional law defines structure, powers and duties of the

government whereas administrative law deals with the procedures of

exercising rights, execution of duties and functions of the

government.

Principles of administrative law

 Natural justice

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 Rule of law

 Principle of accountability

 Good governance

 Due process

 Seperation of power.

Separation of Powers

Introduction

 Separation of powers is the division of the legislative, executive, and

judicial functions of government.

 The doctrine of separation of powers follows the principles tries

politics.

 The concept of this doctrine is to remove the abuse of power by the

authorities. This doctrine says that no organ of the government can

exercise the power other than what is given to them. There are four

principles on which this doctrine is based upon.

 Separation of powers is an organizational structure where

responsibilities, authorities, and powers are divided between groups

rather than being centrally held.

 Separation of powers is most closely associated with political

systems, in which the legislative, executive, and judicial powers of

government are vested in separate bodies.

 The principle of separation of power corroborates fairness,

impartiality and uprightness in the working of the government.

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 In most of democratic countries, it is accepted that the three

branches are legislature, executives and the judiciary.

Origin and development of separation of power

 The tripartite model of governance has its origin in Ancient Greece

and Rome by Aristotle in his work politica.

 English philosopher John Locke had earlier argued that the legislative

power should be divided between king and Parliament.

 Though the doctrine is traceable to Aristotle, but the writings of Locke

and Montesquieu gave it a base on which modern attempts to

distinguish between legislative, executive and judicial power are

grounded.

 The term “Trias politica” or “separation of powers” was coined by

Montesquieu, a French social and political philosopher.

 His publication, Spirit of the Laws, is considered one of the great

works in the history of political theory and jurisprudence, and it

inspired the Declaration of the Rights of Man of the UN and the

Constitution of the United States. Under his model, the political

authority of the state is divided into legislative, executive and judicial

powers. He asserted that, to most effectively promote liberty, these

three powers must be separate and acting independently.

 According to Montesquieu’s theory, powers are of three kinds:

Legislative, executive and judicial and that each of these powers

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should be vested in a separate and distinct organ, for if all these

powers, or any two of them, are united in the same organ or

individual, there will be no liberty.

 Between the 16-18th Centuries, the doctrine of separation of powers

became a major theme in the struggle of the masses against the

arbitrary rule of kings i.e. feudal monarchy.

 In 1787, the founding fathers of the United States of America

incorporated this principle into their constitution.

 The constituent Assembly of France in 1789 was of the view that

“there would be nothing like a constitution in the country where the

doctrine of separation of power is not accepted”.

Seperation of power in India

 In India there are three major powers of government and each of

them is performed by a separate organ. Legislature is responsible for

making the laws, executive is responsible for enforcing law and

judiciary is responsible for implementing laws.

 The major question that arises that there should be dependence of

these organs on each other or whether there should be a strict

separation of powers among them.

 There is a strict provision that defines separation of powers absolutely

but there are provisions in the Constitution of India that have made

distinction between the powers of the organs of the government.

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 Even though there is no express provision for this doctrine, but it is

followed in India in an implied manner. It has defined the roles of

each organ of the government.

 The judiciary is independent as laid down under Article 50.

 Articles 121 and 211 of the Constitution of India prohibit the

discussion of the conduct of the Supreme Court and High Court

judges in the Parliament and State Legislatures.

 Articles 53 and 154 of the Constitution of India define the executive

powers of the Union and the State, respectively. The President of

India holds the executive power of the Union, while the Governor of

a state holds the executive power of the state.

 The Indian Constitution lays down the structure and defines and

determines the role and functions of every organ of the State and

establishes norms for their inter-relationships and checks and

balances.

Instruments of Checks & Balances

1. Legislature Control on Judiciary: Impeachment and the removal

of the judges. Power to amend laws declared ultra vires by the Court

and revalidating it.

 Legislature Control on Executive: Through a no-confidence vote

it can dissolve the Government. Power to assess works of the

executive through the question hour and zero hour.

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2. Executive Control on Judiciary: Making appointments to the

office of Chief Justice and other judges.

Executive Control on Legislature: Powers under delegated legislation.

Authority to make rules for regulating their respective procedure and

conduct of business subject to the provisions of this Constitution.

3. Judicial Control on Executive: Judicial review i.e., the power to

review executive action to determine if it violates the Constitution.

Judicial Control on Legislature: Judiciary can suggest amendment in

the legislation passed by parliament (Legislature).

Judicial Views:

It was held by the Supreme court in the case of Ram Jawaya Kapoor v.

State of Punjab (1955):that even though the doctrine of separation of

power is not mentioned in the constitution but the functions of one organ

should not be performed by the other. The Supreme Court ruled that the

Indian Constitution does not have an absolute separation of powers, but

the functions of the branches are sufficiently differentiated.

Supreme Court observed that Indira Nehru Gandhi v. Raj Narain (1975) the

basic structure of the constitution cannot be changed even when Article

368 provides the amendment of the constitution.The Supreme Court ruled

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that the Parliament cannot exercise a judicial function, such as adjudicating

a dispute over a Prime Minister's election.

It is observed in this case Golaknath v. State of Punjab that the constitution

of India is supreme, and no other authority can be above it”. The functions

of the three organs should be carried out within the respective power as

provided by the law of land. All the organs should work as per the law of

land.

Administrative Discretion

Meaning and Definition of Administrative Discretion:

 The word administrative discretion denotes two words administrative

and discretion. It means discretion which is used by administration in

their functions. Discretion means decision power.

 In other words the power to do something according their mind and

wisdom. Every person has discretion regarding their property he can

donate, transfer and sale.

 Individual discretion is different with administrative discretion. In

individual discretion there is no any restriction. But administrative

discretion means they have discretion within the given options. They

are not free to take the decision as an individual; they can take

decision only within the limits which is provided by legislative.

 Even court also exercises the power of discretion, when they punish

to someone. Discretion means choose an option from the given

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options on the basis of reason and argument it must not be based on

individual will.

Reasons behind the Development of Discretionary Powers:

There are many reasons behind the development of the power of

administrative discretion. Some reasons are given as follows:

 In present time administration face difficult and different- different

problems which can not solved by a single rule. Most of those

problems are new and rise first time, so a general rule can not apply

against those problems.

 When these problems rise and cannot be solved according to

circumstances than administrative authorities must be solved it.

 Every problem is based on a different circumstance, if we will apply

a same rule to all it can be cause of injustice.

 Administrative authorities can exercise their powers according to

their wisdom and circumstances. But they should not violate Article

14 of Indian Constitution. Every matter of same nature will be deal

with different rules.

 It may be possible that administrative discretion can be misused by

administrative authorities.

Administrative Discretion and Indian Constitution:

 Any statute cannot be challenged on the ground of alleged mala fide

intentions or mysterious motive. If any statute confers discretion to

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the executive enacted by competent legislature, it must impose some

limitations for the exercise their discretion.

 President of India is the supreme of Executive. He exercised much

discretionary power. He can impose national emergency if

 He is satisfied that any condition has been rise under article

352.

 He has power to enact and enforce ordinance.

 He can dissolve to Lok Sabha, when not any party is in majority.

He has discretion whose will call to form the government.

 He has also the power to grant pardon or remission of sentence

to person convicted of offences by court of law under article 72

and 161.

 He can also presidential rule on a state under article 356.

 But all these power are under some restrictions. These are not

arbitrary nature.

 Even judiciary has also exercised some discretion, when judges

punished to guilty person they have discretion where it is mentioned

imprisonment or fine or both, they can convict with any sanction.

Administrative Discretion and Fundamental Rights:

 Fundamental rights control the executive and legislative powers of

the government over the administrative discretion.

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 No Law may provide administrative finality, because court has

jurisdiction to check the administrative discretion. If discretion is

against fundamental rights it must be void and declared

unconstitutional by the court.

 Court will focus on some protective principles when it may be

necessary during exercise discretionary power in respect of

fundamental rights.

If court finds these laws against constitution, it will be declared

unconstitutional. Administration cannot violate article 14 & 19 when they

will exercise discretionary powers.

Administrative Discretion and Role of Judiciary: -

Now these days court has developed lot of new principles to control the

discretion. These principles are :

 Doctrine of ultra-vires,

 Abuse of administrative discretion,

 Improper purpose,

 Irrelevant consideration,

 Malice,

 Unreasonableness,

 Violation of procedure,

 Arbitrary use of discretion and administrative discretion.

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Judicial View

1. In the case of Ram Manohar Lohia v. State of Bihar, under the

defence of India rules, the authority was empowered to detain a

person to prevent sub version of Public order. The petitioner was

detained with the view to prevent him from acting in a manner

prejudicial to the maintenance of Law and order. The court set aside

order of detention. In the opinion of the court, the concept of law and

order was wider than the concept of public order.

2. Supreme Court in the case of Nalini v. District Magistrate has

held that under the relevant statute power was conferred on the

authority to rehabilitate persons displaced from Pakistan as a result

of communal violence but it was exercised to accommodate a person

who had come from Pakistan on a medical leave. The order was set

aside.

3. Maneka Gandhi v. Union of India,8 the supreme court held that

an order passed under section 10 (3) c of The Passport Act, 1967,

empowering for impounding a passport, could be declared bad under

article, 19 (1) (a) & (g) if it imposes unreasonable restrictions on the

freedoms covered by the two clauses.

4. In Air India v. Nargesh Meerza, the question was on the validity

of service regulation framed by air India providing for the termination

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of services of an airhostess on her first pregnancy. Supreme Court

held that the regulation to be extremely arbitrary, unreasonable,

abhorrent to the notions of a civilized society and interfering with the

ordinary course of human nature.

Principle of accountability

 Accountability is the acknowledgement and assumption of

responsibility for actions, decisions, and their consequences.

 The principle of accountability in administrative law is the idea that

public officials are responsible for their actions and should be held

accountable to the public.

 This principle is also known as the Doctrine of Accountability.

Origin of the doctrine of accountability in

administrative law:

 The doctrine of accountability evolved through the cases in the court.

 The case Attorney General vs. Hongkong ( 1993) in this case a

prosecutor appointed by the Crown was paid a bribe to bury the

matter of property which was acquired by illegal means. It was held

by the Court that money or gifts accepted by a public officer to breach

his duty is the bribe. In this case prosecutor is appointed to serve

public in legal matter, he is accountable, but he misused his power.

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 This judgement was followed by the Supreme Court in India in the

case of Attorney General of India vs. Amritlal Prajivandas

(1994).The validity of the SAFEMA Act (The Smugglers and Foreign

Exchange Manipulators (Forfeiture of Property) Act, 1976) was

challenged in this case because it mandated for the properties to be

released which were received as a result of smuggling or any other

malafide activity.

 In the case of Neelabati Behra vs. State of Orissa, it was held

that compensation should be awarded in the case of violation of

fundamental rights due the abuse of the public officer. Public official

is accountable in the case of violation of fundamental rights.

 In the case of Medical Council of India (Dr Ketan Desai v. The

State) The petition was against the President of Medical Council of

India – Ketan Desai for granting recognition to medical colleges in

Ghaziabad, Pune and Punjab by accepting bribe.

Judgement: It was held by the court that actions taken by Desai are

directly under the ambit of a public servant since the maintenance of

uniform standards and to accordingly give recognition to medical

colleges on the basis of such criteria is the main goal of the Medical

Council. In this case, Desai has taken undue advantage of his position

as a President of medical Council and misused his power. Accordingly,

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he was charged with a penalty as fine and take into custody as well

in addition to being removed from his position

The purpose of accountability:

 The principle of accountability aims to prevent the abuse of power by

public officials.

 It also aims to ensure that public officials are fair and impartial in

their actions.

Application of principle of accountability in administrative

law:

 The principle of accountability is a basis for judicial review of

administrative actions.

 It gives Courts the power to recognize when public officials are not

fulfilling their duties.

 It gives victims of abuse of power a way to seek redress.

Application of principle of accountability in India

 The Right to Information Act, 2005 has introduced of

transparency in the decision-making in the government as well as

access to information. Public can ask information about the working

of government and can hold accountable to public officer.

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 The Citizen's Charter defines responsibilities of various agencies

of the government. Example: Central Board of Direct Taxes)

provides standards which include the specified timelines for issue

of refunds or redressal of grievances.

 Checks and balances: The framers of the Indian Constitution,

while adhering to the principle of separation of powers between

Legislature, Judiciary and Executive also provided for appropriate

checks and balances for administrative objectivity and

accountability.

 Judicial Review: Constitution empowers to High Court and Supreme

Court to take review of administrative action. Art.13, 32, 226

support this. Action or decision taken by administrative authorities

can be challenged in High court and Supreme Court if it contravenes

any provision of Constitution or fundamental rights, natural justice.

 Comptroller and Auditor General (CAG): As per Art. 146 of

Indian Constitution, Comptroller and Auditor General (CAG) is

appointed for accounting the expenditure incurred by the

ministries and departments. The Finance and Appropriation

Accounts prepared by them are audited by the CAG of India who

submits a report thereof to the Parliament in terms of Article 151 of

the Constitution

Administrative adjudication

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Introduction

 Administrative adjudication is a name give to the administrative

exercise of judicial functions.

 It is a name given to the various ways of deciding disputes outside

the ordinary courts.

 Administrative adjudication is constitutional, though it is a negation

of the principle of separation of powers.

 Administrative adjudication is the participation or involvement of the

executive arm of government in judicial function.

 Prof White, “Administrative adjudication means the investigation and

settling of a dispute involving a private party on the basis of a law

and fact by an administrative agency.”

 Prof Dimock defines, ‘Administrative Adjudication as the process by

which administrative authorities settle issues arising in the course of

their work when legal rights are in question'.

 Administrative adjudication is usually performed through the

machinery of Tribunals and Inquiries.

 Administrative adjudication is a way that government agencies make

rules by having a trial-like process. This is different from just making

rules without a trial.

Example: A company that is accused of violating environmental regulations

may have to go through administrative adjudication. The agency will hold

a hearing where both sides can present evidence and arguments. The

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agency will then make a decision about whether the company violated the

law, and what penalties or corrective actions are appropriate.

 The process by which an Administrative Authorities issues an order,

such order being affirmative, negative, injunctive, or declaratory in

form.

Advantages of administrative adjudication

 Cases are handled speedily as compared to ordinary Courts.

 There is no need to pay a much transport fee or appearance fee in

comparison to ordinary court of law because it takes short time for

decision.

 Administrative authority use flexible process to adjudicate, no rigid

rules of evidence and procedures which applies in normal judicial

process.

Judicial review of administrative adjudication:

There are two grounds for judicial review of administrative adjudication:

 The grounds of ultra vires: If authority used excessive power

beyond the rule.

 Breach of natural justice and fair hearing: If administrative

authority didn’t followed actual procedure defined by law and not took

all point into consideration, not given equal opportunity to both

parties.

Administrative adjudication in India

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 Administrative adjudication has been started in pre-independence in

India.

 In 1941 the income tax tribunal was created to unburden the courts.

 Later, articles 323A and 323B were inserted under Indian

Constitution by 42nd amendment which provide establishment of

tribunals.

 Article 323A provides for the establishment of a tribunal to deal

with the complaint/disputes relating to the

recruitment/conditions of services of the Centre and State

Government.

 Article 323A (1) Parliament may, by law, provide for the

adjudication or trial by administrative tribunals of disputes and

complaints with respect to recruitment and conditions of

service of persons appointed to public services and posts in

connection with the affairs of the Union or of any State or of

any local or other authority within the territory of India or under

the control of the Government of India or of any corporation

owned or controlled by the Government.

o It provides for the establishment of an administrative

tribunal for the Union and a separate administrative

tribunal for each State or for two or more States;

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o It specifies the jurisdiction, powers (including the power

to punish for contempt) and authority which may be

exercised by each of the said tribunals;

o It also provides the procedure (including provisions as to

limitation and rules of evidence) to be followed by the

said tribunals;

 Whereas article 323B empowers the Centre and State

Government to establish a tribunal to deal with specific

matters.

o levy, assessment, collection and enforcement of any tax;

o foreign exchange, import and export across customs frontiers;

o industrial and labour disputes;

o ceiling on urban property;

o elections to either House of Parliament or the House or either

House of the Legislature of a State

o production, procurement, supply and distribution of foodstuffs

(including edible oilseeds and oils)

o rent, its regulation and control and tenancy issues

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 Then after Administrative Tribunal Act 1985 was also enacted which

provides the procedure, and compositions of the administrative

tribunals established under the act.

 Many of these tribunals follow the investigatory system. These

tribunals are neither exclusively judicial nor administrative; therefore

they are called Quasi-judicial bodies.

Review of administrative adjudication:

 In India the administrative adjudication is done by the tribunals, the

decision of tribunals can also be reviewed by the High court and then

the Supreme Court.

Rule of Law

Introduction

 Rule of law is a general legal maxim according to which decisions

should be made by applying known principles or laws, without the

intervention of discretion in their application.

 This maxim is intended to be a safeguard against arbitrary

governance..

 The term “rule of law” means that the government, all local or other

public authorities and public servants’ are not above the law, they

are instead bound by law. The government, the public servants and

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the public authorities should be subjected to the jurisdiction of the

law courts, and for similar wrong should be tried and penalized

similarly.

Concept

 All persons are governed by the same law and same set of rules and

regulations is called the Rule of Law.

 “The rule of law is the doctrine that no individual is above the law and

that everyone must answer to it”.

 “All government officials and all private citizens must follow the laws

of the nation and must be treated equally under the law. The

government is created by and for the people and is answerable to the

people,”

 No branch of government is above the law, and no public official may

act arbitrarily or unilaterally outside the law.

Origin and development

 The rule of law is an ancient ideal, and was discussed by ancient

Greek philosophers such as Plato and Aristotle around 350 BCE.

 If law is the master of the government and the government its slave,

then the situation is full of promise and men enjoy all the blessing

that the Gods shower on a state.

 Aristotle endorsed the rule of law, writing that “law should govern”,

and those in power should be “servants of the laws’.

 In England, The Rule of Law was first originated by Sir Edward Coke,

the Chief Justice in England at the time of King James I. Coke was

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the first person to criticize the maxims of Divine Concept. He strongly

believed that the King should also be under the Rule of Law.

 The British people strongly believed in the Divine Theory of State.

The king was given the power to govern the people by the Divine

Authority (God). This theory propagates that, King can do no wrong,

king is above law

 King John in Magha Carta of 1215 postulated:“No free man shall be

taken or arrested or deceived or exiled or in some way destroyed,

nor will we go upon him nor will send for him, except under a lawful

judgment of his and by the law of the land.”

 The Rule of Law doctrine was later developed by A.V. Dicey in his

book, Introduction to the Law of Constitution (1885). The Rule of Law

according to Dicey means that no man is punishable or can be lawfully

made to suffer in body or goods except for distinct breach of law and

no man is above the law. The term Rule of Law thus, means the

paramount of Law over Government. Dicey’s formation of the concept

of ‘rule of law’, which according to him forms the basis of the English

constitutional law. Contains three principles –

o Supremacy of the law – According Dicey, Rule of law means the

absolute supremacy or predominance of regular law as opposed

to the influence of arbitrary power or wide discretionary power.

o Equality before law- Dicey’s states that there must be equality

before the law or the equal subjection of all clauses to the

ordinary law of the land administered by the ordinary law

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courts. He criticized French administrative tribunals to decide

the matters of officers.

o Predominance of the legal spirit- According to Dicey, there is

written guarantee of rights under various Constitution, but

protects the rights based on consequence with Individual

rights.

Dicey’s theory of Rule of Law is not totally accepted in modern state

because of there is need of Administrative tribunals to lower the burden of

ordinary Courts. Discretionary power is needed for smooth and flexible

administration which was opposed by Dicey.

Rule of Law in India

 The concept of Rule of Law indirectly incorporated under 13, Article

14, Article 21 of Indian Constitution.

 All rules regulations, ordinances, bye-laws, notifications customs and

usages are “laws” within the meaning of article 13 of the constitution

and if they are inconsistent with or contrary to any of the provisions

therefore, they can be declared as ultra virus by the Supreme Court

and by high court.

 Article 14 of Indian Constitution deals with Principle of equality before

law.

Common persons, the government and public authorities are also

subject to be tried and punished similarly. They are not immune from

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ordinary legal process nor is any provision made regarding separate

administrative courts and tribunals.

1. As per Article 21 of Indian Constitution, ‘No person can be deprived

of his life or personal liberty except according to procedure

established by law.’

Judicial Pronouncement

2. It was suggested in the majority opinion in Keshvananda Bharti vs.

State of Kerala. That “Rule of Law” and “Democracy” were amongst

the “Basic Structure “ of the Indian constitution not amenable to the

amending process under Article 368 of the constitution.

The equality aspects of Rule of Law and of democratic republicanism are in

Article 14 of the constitution of India. In the case N.H.R.C. vs. State of

Arunachal Pradesh, the court said, ‘We are a country governed by the Rule

of Law. Our constitution confers certain rights on citizens. Every person is

entitled to equality before laws. No person can be deprived of his life or

personal liberty except according to procedure established by law.’

Delegated legislation

Introduction

 The term ‘delegated legislation’ refers to the exercise of legislative

power by an individual who is lower in status than the legislature or

is subordinate towards the legislature.

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 Delegated legislation is a law or rule made by a group or person other

than parliament, but with the authority granted by parliament. It's

also called secondary or subordinate legislation.

 Such power to make delegated legislation should be conferred by

laws to the authorities.

 Legislative powers used by subordinate authorities. Subsidiary rules

are made by subordinate authorities.

History of Delegated Legislation

 The historical context of power delegation is linked back to the

Charter Act of 1833 during the rule of East India Company. The

Charter Act of 1833 placed administrative powers solely in the hands

of the Governor-General-in-Council.

 The Government of India Act, 1935, was passed in 1935 with a

delegation scheme.

Need for Delegated Legislation in Administrative Law

Complexity of administrative activities increased.

All legislatures not having the knowledge of particular field to make proper

legislation.

Expert’s involvement in rule making is required to regulate a particular

field. Therefore delegated legislation is required with the actual legislations.

Example: 1.Tax Authority can make proper rules to regulate tax.

2. Involvement of IT expert to regulate the field of information

and technology.

Types of delegated legislation

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Orders: These are orders issued by the government.

Statutory Instruments: This is the most common form of delegated

legislation. Usually it is formulated by government ministers.

Example: 1.Press Council of India is a statutory body has a power to frame

guidelines to regulate news industry.

2. Rule made by Election Commission

By-laws: These are enacted by local authority or some other public

corporations applicable to a defined geographical area or sector.

Example: 1. Law made by Municipal Corporation.

2. Law made by Gram Panchayat.

Delegated Legislation in India

 The historical context of power delegation is linked back to the

Charter Act of 1833 during the rule of East India Company. The

Charter Act of 1833 placed administrative powers solely in the hands

of the Governor-General-in-Council.

 The Government of India Act, 1935, was passed in 1935 with a

delegation scheme.

 The Indian Constitution grants the legislature the authority to

delegate its responsibilities to other bodies and to establish policies

for implementing the laws it enacts but there is no direct expression

under Indian Constitution.

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 In the case of D. S. Gerewal v. State of Punjab, the Supreme

Court clarified that Article 312 of the Indian Constitution deals with

the power of delegated legislation.

 Supreme Court’s Ruling:—The Supreme Court has held in an appeal

filed before them that article 312 does not exclude the delegation of

power to frame rules for regulation of recruitment and the conditions

of service of All India Services.

 Article 13 of Indian Constitution provides "law" includes any

Ordinance, order, bye-law, rule, regulation, notification, custom or

usage having in the territory of India the force of law.

Judicial Control over Delegated Legislation:

Judicial control of delegated legislation is the power of the courts to review

the validity of delegated legislation. Judiciary can take review of delegated

legislation and suggest some correction, can set ultra vires or can declare

invalid legislation.

Delegation may be challenged as unconstitutional-

 If delegated legislation contravene any provision of the Constitution

or fundamental rights protected under Indian Constitution can be set

as ultra vires/ unconstitutional.

Dwarka Prasad v State of U.P. (AIR 1954 SC 224): The court held a

rule under the U.P. Coal Control Order as ultra vires Article 19(1) (g)

because it placed unreasonable restrictions by giving arbitrary powers to

the executive in granting exemptions. The rule allowed the State coal

controller to exempt any person from the license requirements, which the

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court found to be an excessive delegation of power and an unreasonable

restriction on the right to carry on any occupation, trade, or business.

Air India v Nargesh Meerza (AIR 1981 SC 1829): The court quashed

a service regulation that was discriminatory and violative of Article 14. The

regulation provided for the termination of services of an air hostess on the

first pregnancy, which the court found to be an unreasonable and arbitrary

restriction on the employment of women.

 Delegated legislation can be challenged if it is unreasonable,

arbitrary, or discriminatory, thus violating Articles 14 and 19 of the

Constitution.

Statutory power has been improperly exercised-

If authorities used excessive power not mentioned under related existing

Statute or contravene any provision of existing Statute, such delegation

can be challenged in Court of law.

Mala Fide:

Administrative rule-making can be challenged on the ground of bad faith or

ulterior purpose.

For example, the Bombay High Court invalidated a rule under the Drug

and Cosmetics Act, 1940, which required manufacturers to add a poisonous

substance to render the product non-potable, as it was deemed an attempt

to enforce prohibition policy under the guise of prescribing standards.

Judicial Review of Administrative Actions

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Introduction

Judicial review is the court’s power to review the actions of other branches

of government, especially the court’s power to deem invalid actions

exercised by the legislative and executive as ‘unconstitutional’.

Judicial review of administrative action is the process by which a court

reviews the actions of a government agency or tribunal to determine if they

are legal.

It is a check on the power of the executive and legislative branches of

government.

How it works

A court reviews a decision made by a government authorities or tribunal.

The court assesses the decision for legal errors.

The court may invalidate the decision if it is unlawful or unconstitutional.

The court may also remand the decision back to the original decision-maker

for reconsideration.

Importance of judicial review of administrative actions:

Judicial review protects citizens' rights and upholds the rule of law

It ensures that administrative authorities act fairly, reasonably, and

transparently

It prevents arbitrary and unlawful actions by administrative authorities

Judicial review in India deals with:

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Judicial Review of Legislative Actions;

Judicial Review of Administrative Actions;

Judicial review of Judicial Actions.

Jurisdiction of Court

The power of judicial review in India is significantly vested upon the High

Courts and the Supreme Court of India.

Grounds of judicial review

The doctrine-ultra-vires is the basic structure of administrative law. It is

considered as the foundation of judicial review to control actions of the

administration. Ultra-vires refers to the action which is made in an

excessive manner or outside the ambit of the acting party.

Generally, the grounds for judicial review in India are as follows-

1. Jurisdictional Error: There might be a ‘lack of jurisdiction’,

‘excess of jurisdiction’ or ‘abuse of jurisdiction’. The court may

reject an administrative action on the ground of ultra vires in all

these three situations.

2. Irrationality: A general established principle is that the

discretionary power conferred on an administrative authority

should be exercised reasonably. A decision of an administrative

authority can be held to be unreasonable if it lacks logic or

prevalent moral standards.

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3. Procedural Impropriety: It is a failure to comply with the

laid down procedures. Procedural Impropriety is to cover two areas

which are failure to observe rules given in statute and to observe

the basic common-law rule of justice.

4. Legitimate Expectation: It includes some expectation

by the victim person from the authority about

communication or any notification and authority has not

fulfilled it.

In Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators

Association(1972), the Corporation had given undertakings to the effect

that the taxi drivers’ licenses would not be revoked without their prior

consultation. But the corporation acted in the breach of its undertaking.

The court ruled that the taxi drivers had a right to be consulted.

Principle of Natural Justice

In this lesson you will be introduced to the concept of ‘Natural Justice’.

Natural Justice in simple terms means the minimum standards or principles

which the administrative authorities should follow in deciding matters which

have the civil consequences. There are mainly two Principles of Natural

Justice which every administrative authority should follow whether or not

these are specifically provided in the relevant Acts or rules.

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Principles are:

1. No one should be the judge in his/her own case

2. Each party should be given the opportunity to be heard

Origin of the concept natural justice

The principle of natural justice is a very old concept that dates back to

ancient times.

This concept was also known to Greek and Roman people. Natural justice

was recognised in the days of Kautilya, arthashastra, and Adam. When Eve

and Adam ate the fruit of knowledge, according to the Bible, they were

forbidden by the god.

Eve was given a fair chance to defend herself before the sentence was

handed down, and the same procedure was followed in the case of Adam.

The concept of natural justice was later accepted by English jurists. Natural

justice is derived from the Roman words 'jus-naturale' and 'lex-naturale,'

which laid out the principles of natural justice, natural law, and equity.

Use of Natural Justice in India

This concept was introduced in India at an early stage.

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The court held in Mohinder Singh Gill vs. Chief Election Commissioner that

the concept of fairness should be present in all actions, whether judicial,

quasi-judicial, administrative, or quasi-administrative in nature.

By.Dr. Sadhna Gaikwad