1. State and explain the Doctrine of separation of powers in detail.

I) Doctrine of Separation of Powers- The doctrine of separation of power can

be traced to Aristotle. But it was formulated for the first time by the French
jurist, Montesqui. In India, we have three organs to function properly as
below –

 Executive = to implement the law

 Judiciary = to interprete the law
 Legislature = to make the law

Separation of power means all this three organs should not interfere in the
working of each other.

According to Wade and Phillips the theory of separation of powers signifies

the following three different things:

 That the same person should not form part of more than one of the
three organs of the government.
 That one organ of the government should not interfere with any other
organ of the government.
 That one organ of the government should not exercise the functions
assigned to any other organ.

II) Doctrine of Separation in India- In India, the doctrine of separation cannot

claim any historical background. The doctrine of separation of powers has
also not been accorded a constitutional status. In the constituent Assembly,
Prof. K. T. Shah, who was a member of the Constituent Assembly made a
proposal to incorporate the doctrine of separation of powers into the
constitution, but the Assembly did not accept it.

Though, the doctrine of powers, in its absolute, rigidity, is not inferable from
the provisions of the constitution, Article 50 of the constitution provides that
the state should take steps to separate judiciary from the executive in all the
states of the Union. But even then it cannot be said that Art 50 have
incorporated the whole doctrine. Indian Constitution has not indeed
recognized the doctrine of separation of powers in its absolute rigidly but the
functions of the differentiated parts or branches of the government have
been sufficiently differented and consequently it can be very well said that
our constitution does not contemplate assumption by one organ or part of
the state of functions that essentially belongs to another.
Example - President of India

i) Legislative power → Article 123 (Ordinance), 240 (Peace), 357

(Machinery Failure) of COI.
ii) Judicial power → Article 103 (Disqualify Member of Parliament)
of COI. iii)
iii) Administrative Power → Executive Head

III) Modern View- But now the trend of the Supreme Court regarding the
doctrine of separation of powers has been change. In the historic case
Kesvanand Bharati Vs. State of Kerala, 1973 the Court changed its view and
held that both the supremacy of the constitution and separation of powers
are parts of the basis structure of the Indian Constitution.

IV) Principles of Separation of Powers:

 Executive, legislature, judiciary should be independent of each other.

 No one organ should perform function that belongs to other

V) Case Laws:

The question raised in the case Keshvananda Bharti Sripadagalvaru and Ors.
v. State of Kerala and Anr., was that till what extend the constitution can be
amended by the legislature. The argument was that judiciary should not
interfere if the parliament decides to change the law even if it was
unconstitutional. However, the court held that the argument is vague and
the doctrine of separation of power is the basics structure of the constitution,
and it shall not be violated. This has always been integral part of the
constitution and the judiciary along with executive and legislature are bound
to follow the constitution which has provided distinction between the
relationship of these three organs. After this decision the doctrine was
recognised as an integral part of the basic structure off the Indian
constitution.

Further in Ram Jawaya Kapur v State of Punjab³, it was held by the court 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. These organs should exercise its powers beyond what is provided by
the constitution.

In Indira Nehru Gandhi v. Raj Narain, Chandrachud, J. (as he then was) also
observed that the ".. political usefulness of the doctrine of separation of
powers is now widely recognised...." No Constitution can survive without a
conscious adherence to its fine checks and balances. "Just as courts ought
not to enter into problems entwined in the 'political thicket', Parliament must
also respect the preserve of the courts. The principle of separation of powers
is a principle of restraint which 'has in it the precept, innate in the prudence
of self-preservation. that discretion is the better part of valour.”
 2. Examine the definition, nature and scope of Administrative law.

Meaning of Administrative Law:

Administrative law is an area of law that deals with the powers, duties and
obligations of various government bodies. There is no single definition of
"administrative law" as it has different meanings for different theorists, some
of it are mentioned as under:

1. KC DAVIS: According to him administrative law is the law relating to the

powers and procedures of administrative bodies, particularly the right
to judicial review of administrative acts. Administrative law is the area
of law that governs the relationship between the private sector and the
state executive when it acts as an administrative body.
2. IVOR JENNINGS: He has defined administrative law as the law of
administration. It defines the organisation, powers and responsibilities
of the administrative bodies.
3. PROFESSOR H.W.R. WAD:E He has defined administrative law as a law
which governmental powers.
4. GARNER: He defined administrative law as the rules which a court
recognizes as equivalent to law and which are concerned with the
government's administration.
5. GRIFFITH AND STREET: According to him the prominent aim of the
administrative law is to operate and control the administrative
authorities.

Nature of Administrative Law:

Administrative Law is a branch of public law. Public law is that part of law
which governs relationships between individuals and the government, and
those relationships between individuals which are of direct concern to
society. Administrative law deals with the relationship between individuals
and the government. It is mainly concerned with the control of the powers of
the administrative authorities. The main objective of the study of
administrative law is to unravel the way in which these administrative
authorities could be kept within their limits so that the discretionary powers
may not be turned into arbitrary powers.
Administrative law controls the administrative authorities so that they may
not become despotic. Administrative law aims at maintaining a balance
between administrative powers and the individual liberty. However a
distinction must be drawn between administrative law and constitutional law.
Administrative law is closely connected with constitutional law. It has even
been called as a branch of the Constitutional Law.

However at present administrative law has assumed the status of an

independent subject. Administrative law is mainly concerned with the
executive branch of the Government whereas the Constitutional Law gives
equal importance to the Legislative, Executive as well as the Judiciary.

In the words of HOLLAND, "the various organs of the Government are

described by Constitutional Law as at rest, but administrative law describes
them in motion.

Scope of Administrative Law:

The literature on administrative law, presents the reader with considerable

diversity of opinion. For some, it is the law relating to the control of powers of
the government and for the others it is the law made by the administration.
Yet others highlight the principal objective of administrative law as ensuring
governmental accountability, and fostering participation by interested
parties in the decision making process.

SCHWARTZ divides administrative law into three parts:

1. The powers vested in administrative agencies.

2. The requirements imposed by law upon the exercise of those powers.
3. Remedies available against unlawful administrative actions.

Further, the definition of administrative law given by JAIN AND JAIN presents
an apt example of the scope of administrative law. Based on their definition,
the scope and contents of administrative law can be divided into four
aspects:

1. Composition and the powers of administrative authorities:

The powers and functions of administrative authorities can be divided into

three divisions –

a. Administrative

Administrative powers and functions are the residue of the governmental

powers and functions that remain after legislative and judicial powers and
functions are taken away. It can further be divided into discretionary and
ministerial functions. Discretionary powers and functions are those wherein
the administrative authorities enjoy the opportunity to make a choice out of
available alternatives. Ministerial functions are those wherein the element of
discretion is either absent or relatively small.

b. Quasi-judicial

An act or function is treated as quasi-judicial act or function when it has

some trappings of judicial function. While exercising quasi-judicial functions,
the administrative authorities determine a matter affecting the rights of any
person. Such quasi-judicial acts are subject to the principles of natural justice
and the writ of certiorari.

c. Quasi-Legislative

Although the Constitution of India empowers Legislature to make laws for the
country, but keeping in mind various multifarious activities of a welfare
State, it is not possible for the legislature to perform all the functions.
Therefore the administrative authorities are conferred with quasi-legislative
powers and functions. The development of the legislative power of the
administrative authorities in the form of delegated legislation occupies a
very important place in the study of administrative law.

2. Methods of control of powers of administrative authorities This is the

most important aspect of the study of administrative law. The various
methods of control include parliamentary control, judicial control
(including control through writs), establishment of Inquiry Commissions
and the institution of ombudsman.

3. Procedure to be followed by these authorities in exercising their powers

Administrative law stipulates that the procedure to be followed by the
administrative authorities in exercising its powers must be fair and
reasonable. It emphasises on the concepts of natural justice and fair
hearing.

4. Remedies available to a persona Administrative law provides two kinds

of remedies to a person in case his rights have been infringed by the
administrative authorities. These are - Constitutional and Ordinary
remedies. Constitutional remedies include the remedies by way of writs
(under Articles 32 and 226 of the Constitution). Ordinary remedies or
 equitable remedies include such other remedies which may be
available even against a private individual. E.g. injunction, damages
etc. This has been made possible by way of Article 300 of the
Constitution which states that the Government shall sue and may be
sued, thus fixing contractual and tortuous liability of States.

3. Examine the factors responsible for the growth in Administrative law.

Definitions of Administrative Law:

Ivor Jennings has defines Administrative law is the law relating to the
administration. It determines the Organisation, powers and duties of the
administrative authorities. This is the most widely accepted definition.

According to Wade, administrative law is the law relating to the control of

Governmental power. According to him, the primary object of administrative
law is to keep powers of the government with in their legal bounce so as to
protect the citizens against their abuse. The powerful engines of authority
must be preventive from running amok.

According to K.C.Davis administrative law is the law concerning the powers

and procedures of administrative agencies, including especially the law
governing judicial review of administrative action.

Reasons for the Growth of Administrative Law:

The following factors are responsible for the growth of administrative law:

 There is a radical change in the philosophy of the role played by the

state. The negative policy of maintaining law and order and social
welfare is changing. The state has not confined its scope to the
traditional and minimum functions of defense and administration of
justice, but has adopted the positive policy and as a welfare state has
undertaken to perform varied functions.
 The judicial system was proved to be an inadequate to decide and
settle all types of disputes. It was slow, costly, inept, complex and
formalistic. It was already overburdened and it was not possible to
expect speedy disposal of even very important matters. The important
problems could not be solved by mere literally interpreting the
provisions of some statutes, but required consideration of various other
factors and it could not be done by the ordinary courts of law.
Therefore, industrial tribunals and labour courts. Were established,
which possessed the techniques and expertise to handle these
complex problems.
 The legislative process was also inadequate. It had no time and
technique to deal with all the details. It was impossible for it to lay
down detailed rules and procedures, and even when detailed
provisions were laid down by the legislature, they have found to be
defective and inadequate. Therefore, it was necessary to delegate
some powers to the administrative authorities.
 There is scope for experiments in administrative process. Here unlike,
in legislation, it is not necessary to continue a rule until
commencement of the next session of the legislature. Here a rule can
be made, tired for some time and if it is defective, can be altered or
modified within a short period. Thus, legislation is rigid in character,
while the administrative process is flexible.
 The administrative authorities can avoid technicalities. Administrative
law represents functional rather than a theoretical and legislative
approach. The traditional judiciary is conservative, rigid and technical.
It is impossible for courts to decide cases without formality and
technicality. Administrative tribunals are not bound by rules of
evidence and procedure and they can take a practical view of the
matter to decide complex problems.
 Administrative authorities can take preventive measures. Unlike
regular courts of law, they do not have to wait for parties to come
before them with disputes. In many cases, these preventive actions
may prove to be more effective and useful than punishing a person
after he has committed a breach of law. As freeman says, Inspection
and grading of meat answers the consumers need more adequately
than does a right to sue the seller after the consumer injured.
 Administrative authorities can take effective steps for the enforcement
of the aforesaid preventive measures e.g. suspension, revocation and
cancellation of license, destruction of contaminated articles etc., which
are not generally available through regular courts of law.
The Role of administrative law is to limit the powers of the government
agencies and keep a check in on the administrative authorities. it is not
always possible to rely upon some general statutes for rising disputes
between the individuals and the public authorities thus there should be a
proper law to govern such disputes, Administrative law act as the proper law
which governs the administrative actions.

4. What is delegated legislation? Analyze the factors leading to the

growth of delegated legislation.

Delegation' has been defined by Black's Law Dictionary as an act of

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

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

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

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

legislature delegated to it by the Legislature.
 The Subsidiary rules made by the Subordinate Authority in the
execution of the power bestowed on it by the Legislature.

Delegated legislation is, referred to as Subordinate, Ancillary, Administrative

legislation, and Quasi-Legislation.

Reasons for Growth of Delegated Legislation

The traditional theory of 'laissez-faire' has been given up by every state and
the old "police state" has now become a "Welfare sate". Because of the
radical change in the philosophy as to the role of the state, its functions have
increased. Consequently, delegated legislation has become essential.

The factors responsible for the growth of delegated legislation are:

a. Pressure Upon Parliamentary Time

As a result of the expanding horizons of state activity the bulk of legislation

is so great that it is not possible for the legislature to devote sufficient time
to discuss all the matters in detail. Legislature, therefore, formulates the
general policy and empowers the executive to fill in 'the detail' by issuing
necessary rules, regulations, by-laws, etc.

b. Technicality

The subject-matter of modern legislation is very often of a technical nature.

Legislature being him self a common man cannot be expected to discuss and
legislate on the same. That resulted in the conferring of powers to the
experts to deal with the technical problems. Example gas, atomic energy,
drugs, electricity.

c. Flexibility
Legislative process is slow and technical. At the time of passing any
legislative enactment, it is impossible to foresee all the contingencies which
may arise in future. A legislative amendment is slow and cumbersome
process, but by the device of delegated legislation, the executive can meet
the situation expeditiously, eg. Bank-rate, police regulations, export and
import, Foreign exchange etc.

d. Experiment

The method of delegated legislation permits the rapid utilisation of

experience experience and implementation of necessary changes in
application of the provisions in the light of such experience. In road traffic
matters, an experiment may be conducted and in the light of its application
necessary change can be made.

e. Emergency

In times of emergency, quick action is required to be taken. The legislative

process is not equipped to provide for urgent solution to meet the
emergency situation. Delegated legislation is the only convenient remedy.

5. Discuss judicial control over delegated legislation.

In spite of the existence of the Parliamentary Control, judicial form of control

of delegated legislation is considered as an integral form of control
mechanism. The fundamental justification for judicial control is based on the
constitutional obligation of the Courts to uphold the principle of rule of law. In
a constitutionally governed state it is the essential function of the judiciary to
ensure that the laws made by the Parliament are not Ultra vires under the
Constitution and the delegated legislation enacted under the statute are
within the ambit of both the parent statute and the constitution. In addition
Article 13(3)(a) of the Constitution has define the term law as order, rules,
bye-law, regulation and notification thereby clearly highlighting that not only
by means of laws made by the legislatures but also through the subordinate
executive laws, the state authorities should not attempt to take away or
abridge the rights conferred by the Part III of the Constitution. Judicial form of
control is said to be more effective form of control because the courts have
the power to strike down a law if it is ultra vires to the parent statute or to
the Constitution. The implementation of the procedural form of control is also
entrusted to the judiciary who determine the legality of the subordinate law
making process through the rules of procedural ultra vires. In Ram Krishna
Dalmia v Justice S.R.Tendulkar³ the constitution bench of Five Judges of the
Supreme Court after analyzing a series of earlier decision laid down the
scope and extent of the power of Judicial review of legislation in India.

(i) Parent act is Ultra Vires the Constitution: If the parent statute or the
enabling Act is in non conformity with the Constitution then the
different rules and regulations framed under such statute will also
be deemed to be unconstitutional, if it is in violation with the
express or implied limits of the constitution. The express limit under
the constitution are those provisions which specifically set the limits
on the powers of the state authorities such as no violation of the
fundamental rights specified under Part III of the constitution, strict
adherence with the distribution of the legislative powers as
specified under List I, II and III of the Seventh schedule, no violation
of the commerce clause under Article 301 of the Constitution, no
retrospective effect of criminal legislation as provided under Article
20 etc. it is necessary that both the Parent statute as well as the
delegated legislation should be in compliance with these express
limits of the constitution for the purpose of legal enforcement.
The implied limits in the context of delegated legislation has been
laid down in the cases of In Re: Delhi Laws Act case and Harishankar
Bagla v State of M.P. wherein it was acknowledged that legislature
can delegate the power of rule making to a subordinate body after
laying down the legislative policy and the general rules of conduct.
In the case of St. Johns teachers Training Institute v Regional
Director, National Council for Teacher Education, the Court applied
the inherent policy of the statute to uphold the constitutionality of
the delegated legislation. Thus the power to make subordinate
legislation is derived from the parent statute and it is essential that
the delegate on whom such power has been conferred has to act
within the limits of the authority specified under the Act and this
referred to as the implied constitutional limits on the power of
delegation of rule-making authority.
(ii) Delegated legislation is ultra Vires the Constitution: the court may
be asked to consider the question of Constitutionality of delegated
legislation itself. The parent statute may be constitutional, but the
delegated legislation emanating there under may be in conflict with
some provision of the constitution. In that case, the delegated
legislation will be invalid. Here, again the frame of reference to
assess the validity of delegated legislation is the constitution. For
example, In Dwarka Prasad Laxmi Narain v State of U.P., a few
provisions of the UP Coal Control Order, 1953, made under S.3(2) of
the Essential Supplies Act,1946 were declared ultra vires as
infringing Art.19(1)(g). Similarly, in Rashid Ahmad v. Municipal
Board5, certain bye-laws made by a municipality were held bad
under Art.19(1)(g). In Narendra Kumar v Union of India, the
Supreme Court specifically considered the point whether the
question of unconstitutionality of delegated legislation made under
a valid Act could be raise or not. The Court held that though a law
may not be unconstitutional, an order made there under may yet be
challenged under the Constitution, because the law could not be
presumed to authorize anything unconstitutional. Again, the
question of unconstitutionality of the rules falls more appropriately
under constitutional law.
In Indian Express Newspaper (Bombay) (P) Ltd. v Union of India, the
Supreme Court said that a piece of subordinate legislation does not
carry the same degree of immunity which is enjoyed by a statute
passed by a competent legislature. Further in the case of Union of
India v R. K. Chopra, Supreme Court said that the rules framed by
the President of India in exercise of the power conferred by the
proviso to Art. 309 of the Constitution of India have the force of law.

(iii) Doctrine of Ultra Vires: Subordinate legislation does not carry the
same degree of immunity which is enjoyed by a statute passed by a
competent legislature. Subordinate legislation may be questioned
on the ground that it does not conform to the statute under which it
is made. It may be further questioned on the ground that it is
inconsistent with the provision of the act or that it is contrary to
some other statute applicable on the same subject-matter.
Therefore, it has to yield to plenary legislation. It can also be
questioned on the ground that it is manifestly arbitrary and unjust.
That, any inquiry into its vires must be confined to the grounds on
which plenary legislation may be questioned, to the grounds that is
 contrary to the statute under which it is made, to the grounds that it
is contrary to other statutory provisions or on the ground it is so
patently arbitrary that it cannot be said to be in conformity with the
statute. It can also be challenged on the ground that it violates Art.
14 of the Constitution. Delegated legislation can be challenged
before the court on the ground of being ultra vires the parent act.
The Court can adjudge the legality and validity of delegated by
applying the doctrine of ultra vires. It need to be emphasized at the
very outset, that the doctrine of ultra vires concern itself with the
question: is the rule challenged within the scope of the authority
conferred on the rule-maker by the parent statute. The Court does
not concern itself with the wisdom or efficacies of the rules. It is for
the rule maker to decide as matter of policy, how to implement the
provisions of the statute and what measures to take to efficaciously
achieve the object of the act. It is not for the court to examine the
merit and demerit of the case. The doctrine of ultra vires has two
aspects: substantive and procedural. When delegated legislation
goes beyond the scope of the authority conferred by, or it is in
conflict with the parent statute it is invalid and this is known as
substantive ultra vires. When the rule making authority deviates
from the procedure, if any, prescribed by the parent statute for
making rules, it is known as procedural ultra vires.

(iv) Non-compliance with the Court's Order: in the instant case, the
government attempt to evade the direction of the Supreme Court
and the Court struck it down.

(v) Non-application of mind: Delegated legislation may be struck down

on the ground of non application of mind on the part of delegatee to
the relevant facts in taking decisions.

6. Discuss parliamentary control over delegated legislation.

Parliament is vested with the power to allow a subordinate authority to make
enactments. An "Act of Parliament" makes the system of a particular law and
a summary of the purpose for the Act and entrusts different people or bodies
to assimilate more details to an Act of Parliament. Parliament through an Act
of Parliament permits others to make laws and guidelines through delegated
legislation. The enactment made by authorized person must be made as per
the guidelines set down in the Act of Parliament.

With the delegation of power by the legislature or Parliament to the

executive, a need for the Legislative or Parliamentary control arises to keep a
check on the rule making under the power entrusted to the executive and to
censure if there is any abuse of power. The delegated legislation is under the
control of the principal and it shall not defy the enabling statue or parent act.
The exercise of the delegated power can be amended or cancelled by the
principal in case of any abuse of power.

In Lohia Machines Limited v. Union of India' case, the Court observed that the
underlying object of parliamentary control is to keep watch over the
rulemaking authorities and if there is an excess of power exercise or there is
an abuse of power, it provides an opportunity to the parliament to criticize
them. This mechanism is described as a "legislative veto'.

In Avinder Singh v. State of Punjab² case, Krishna Iyer J. appropriately

expressed that parliamentary authority over designated enactment should
be a living continuity as a protected need. The authoritative command over
the organization in parliamentary nations like Indi more hypothetical than
practical. In truth, the control of the Parliament is not that effective as it
needs to be.

PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION IN INDIA

Due to accountability of the executive to the Parliament, the parliamentary

control of delegated legislation in India is implicit as an ordinary
constitutional function. The three types of controls that can be exercised are:

A. DIRECT GENERAL PARLIAMENTARY CONTROL

Direct and general control is exercised at the time of passing the enabling
act. It can be exercised in the following ways:

 Through the debate on the parent act, about delegation including

necessity, extent, type of delegation and the authority to which power
is delegated.
  Through questions and notices about any aspect of delegation of
legislative powers and in case of dissatisfaction a notice for discussion
under Rule 59 of the Procedure and Conduct of Business in Lok Sabha
Rules can be issued.
 Through moving resolutions and notices in the house, if the matter
regarding delegation of power is urgent and immediate, and reply of
the government is unsatisfactory.

B. DIRECT SPECIAL PARLIAMENTARY CONTROL

Direct special control over delegated legislation was made in the

Reorganization Acts of 1939 to 1969, which authorised the President to
reorganise the executive government by administrative rule-making. It is
exercised through the techniques of "laying" the rules and regulations
framed by the administrative authority on the table of the house within a
specified time. This process delivers two purposes, i.e.:

i. helps in notifying the legislature about all rules made by the

executive authorities through power vested in them by
delegated legislation.
ii. provides a forum to the legislators for questioning or
challenging the rules made by the executive.

In Narendra Kumar v Union of India' case, Section 3(6) of the Essential

Commodities Act, 1955 which reads as, "Every order made under this section
by the Central Government or by any officer or authority of the Central
Government shall be laid before both Houses of Parliament, as soon as may
be, after it is made" was called mandatory primarily.

Types of laying on the table i.e., placing before the Parliament:

a) Laying without further provision for control: This is a weak type of control
as it is formed only to inform the house and not to have any discussion. The
rules and regulations come into effect as soon as they are laid.

b) Laying with immediate effect but subject to annulment: The rules and
regulations come into action as soon as they are laid before the parliament
but they can be terminated when disapproved by the parliament within a
prescribed time.
c) Laying subject to negative resolution: It is a negative resolution procedure,
the rules and regulations comes into effect as soon as they are laid, but shall
be terminated if annulled by a resolution of the house.

d) Laying subject to affirmative resolution: It is positive resolution procedure.

Under this type of control, the rules shall not come into effect unless
approved by a resolution of each house of parliament, or the rules shall
cease to have effect unless approved by an affirmative resolution.

e) Laying in draft subject to negative resolution: When any act contains a

provision for this type of laying the draft shall come into force after forty
days from the date of laying on the table, unless disapproved before that
period.

f) Laying in draft subject to affirmative resolution: In this type of laying the

draft rules cease have any effect unless approved by the house.

In Atlas Cycle Industries Ltd. v. State of Haryana? case, the Court held that
the use of the word "shall is not conclusive in such cases and that the
intention of the legislature is more important. It shall be analysed while
laying of rules made by delegated legislation before the house whether the
provision in the statute is mandatory or merely directory.

C. INDIRECT PARLIAMENTARY CONTROL

Indirect control is exercised by Parliament through its Committees. In 1950,

the then Law Minister made a suggestion that Indian Parliament should also
have a committee similar to those present in England. In order to strengthen
Parliamentary control over delegated legislation, Scrutiny Committees were
established.

The main functions of the Committee are to examine:

 Whether the rules are in accordance with the general object of the Act,
 Whether the rules contain any matter which could more properly be
dealt with in the Act,
 Whether it is retrospective,
 Whether it directly or indirectly bars the jurisdiction of the court, and
questions alike. The Committee has between 1953 and 1961,
scrutinized about 5300 orders and rules has submitted 19 reports.

There is also a similar Committee of the Rajya Sabha which was constituted
in 1964. It discharges functions similar to the Lok Sabha Committee.
The Committee on Subordinate Legislation has made the following
recommendation in order to streamline the process of delegated legislation
in India:

 Power of judicial review should not be taken away or curtailed by rules.

 A financial levy or tax should not be imposed by rules.
 Language of the rules should be simple and clear and not complicated
or ambiguous.
 Legislative policy must be formulated by the legislature and laid down
in the statute and power to supply details may be left to the executive,
and can be worked out through the rules made by the administration.
 Sub-delegation in very wide language is improper and some
safeguards must be provided before a delegate is allowed to sub-
delegate his authority to another functionary.
 Discriminatory rules should not be framed by the administration.
 Rules should not travel beyond the rule-making power conferred by the
parent Act.
 There should not be inordinate delay in making of rules by the
administration.
 The final authority of interpretation of rules should not be with the
administration.
 Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has proved
to be a fairly effective body in properly examining and effectively improving
upon delegated legislation in India.
 7. Discuss the procedural control over delegated legislation.

It is not possible for the Parliament to exercise effective control over

delegated legislation. Therefore certain procedural safeguards have been
provided which are relevant to keep constant watch over the exercise of this
power by the administrative authorities. The methods of procedural control
can be studied under the following heads.

(i) Prior Consultation of Interests Likely to be affected by Proposed

Delegated Legislation:

In the United States the practice of prior consultations of the affected

interests is very much common. The Administrative Procedure Act in
S.553 requires the rule making authority to consult the interest likely to
be affected. The interested persons are given an opportunity by the
agency concerned to submit their representations within prescribed time.
There are various Acts in America which provide not only consultation of
interested bodies but also the consultation of certain advisory bodies
which are formulated for such purposes. In America consultation of
interests has tended to become a regular feature of the rule-making
process. The purpose of prior consultations of the affected interest is to
know their view points and to minimize the objection to administrative
legislation. This technique would also be useful in avoiding improper use
of rule making power by the executive. This has been especially true
where the interests affected are well organized and have a constant
contact with the administrative authorities. In America various bodies of
affected interests are consulted by the Ministry of Health before making
new statutory regulations about the use of preservatives in food. In
England, there is a lot of informal consultation. But consultation as a
matter of right arises only when it is prescribed by a statutory provision.
There is no statutory provision requiring consultation of affected interest
in the rule making process. From time to time, statutes specifically lay
down some requirement or process for the rule making authority to
consult designated bodies or interests. Usually, the statutory requirement
of consultation has been held to be mandatory by the courts.
In India there is no general provision of law, requiring consultation of the
affected interest in the process of rulemaking. Where consultation is
required, such words as "the power to make rules shall be subject to the
conditions of previous publication" are inserted in the parent Act. It is
notable that in some statutes provisions are laid down conferring the
power on the affected interests to initiate and frame rules them. it is now
a well-established proposition in India that no hearing or consultation can
be claimed by any one as a matter of right or natural justice, when the
administration is engaged in discharging a legislative function3 and the
same cannot be challenged on the ground of non-observance of the
Principle of natural justice. According to the Supreme Court: 'the rules of
natural Justice are not applicable to legislative action plenary or
subordinate'. The procedural requirement of hearing is not implied in the
exercise of legislative powers unless hearing was expressly prescribed.
For example, Section 9-A of the Forward Contracts (Regulations) Act,
1952, authorized the recognized association to make rules with respect to
several matters mentioned therein. These rules become effective after
having been approved by the Central Government. The Government can
also make such modification as it deems fit.

(ii) Prior Publicity of Proposed Rules and Regulation:

In India the practice of prior publication has been adopted wherever prior
consultation has been deemed necessary. According to Section 23 of
General Clauses Act, 1897, the authority shall publish the draft rules for
information of affected interests in such manner as it deems sufficient.
The authority shall take into consideration any such objection which may
be received by it while finalizing the rules.

In America the practice of prior publication has been adopted under

various Acts. For example, under Rules Publication Act, 1808, public notice
was given of proposals to make 'statutory rules ' and the department
concerned had to consider representations or suggestions made by
interested bodies, who were thus made aware of proposed rules of which
they otherwise might not have known. Such antecedent publicity was
characterized by the Donoughmore Committee as 'undoubtedly a
safeguard of the highest value particularly where it leads to consultation
with the interests concerned. A similar system of antecedent publicity is
provided for in the American Administrative Procedure Act, 1946-a statute
which imposes certain minimal procedural requirements upon the
administrative process in that country.

(iii) Publication:

The term Publication refers 'to the act of publishing anything; offering it to
public notice, or rendering it accessible to public scrutiny...an advising of
the public; making known of something to them for a purpose.' It comes
from the Old English word publicatio' whose origin can be traced back to
'publicare', which means to make public. The simple concept which
ascertains the publication of delegated legislation revolves around two
important principles.

Firstly, it is to provide the parties which are going to be affected by the

said legislation an opportunity of being heard as provided by the Principle
of Natural Justice. In the leading case of Harla v State of Rajasthan, the
Supreme recognized the importance of publication of rules in the
governance of the country. Natural justice requires that before a law
becomes operative it must be promulgated or published. It must be
broadcast in some recognizable manner so that all men may know what it
is, or, at the very least there must be some special role or regulation or
customary channel through which such knowledge can be acquired with
the exercise of due and reasonable diligence.

Secondly, according to the maxim ignorantia juris non excusat' (i.e.

ignorance of law is no excuse) and according to this rule no person can
claim the ignorance or him not knowing the law as an excuse. But this can
be applied only when the public were made aware of the existence of
such law and this can be done by the means of publication hence
Publication of Legislation and Delegated Legislation has evolved and is
regarded as a mandatory rule. It is a fundamental principle of law that
ignorance of law is no excuse (ignorantia juris non excusat). But there is
also another equally established principle of law that the public must have
access to the law and they should be given an opportunity to know the
law.

The very justification for the basic maxim is that the whole of our law,
written or unwritten, is accessible to the public-in the sense, of course, at
any rate, its legal advisers have access to it, at any moment, as of right.

In Union of India v M/s. Ganesh Das Bhojraj, it was said by the court that
publication in the Official Gazette is the established practice for bringing a
 rule or subordinate legislation to the notice of the people. Individual
service of notice to every member of the public about a general
notification is not required and all interested person can acquaint
themselves with the content of the notification in the Gazette.

And in the recent case of Gulf Goans Hotels Co. Ltd. v Union of India the
Supreme Court was required to decide whether the various notifications
relating to coastal regulation Zone could be deemed to be valid law. The
Court by referring to the Harla Case categorically held that since the
guidelines issued by the union of India were not published through the
customarily recognized official channel they failed to satisfy the essential
and vital parameters/requirements of law hence were not enforceable to
the prejudice of the Appellants.

8. Examine judicial control of administrative discretion.

The exercise of discretion must not be arbitrary, fanciful and influenced by

extraneous considerations. In matters of discretion the choice must be
dictated by public interest and must not be unprincipled or unreasoned. It
has been firmly established that the discretionary powers given to the
governmental or quasi-government authorities must be hedged by policy,
standards, procedural safeguards or guidelines, failing which the exercise of
discretion and its delegation may be quashed by the courts. This principle
has been reiterated in many cases.

Thus within the area of administrative discretion the courts have tried to fly
high the flag of Rule of Law which aims at the progressive diminution of
arbitrariness in the exercise of public power.

In India the administrative discretion, thus, may be reveiwed by the court on

the following grounds:

I. Abuse of Discretion

Now a day, the administrative authorities are conferred wide discretionary

powers. There is a great need of their control so that they may mot be
misused. The discretionary power is required to be exercised according to
law. When the mode of exercising a valid power is improper or unreasonable
there is an abuse of power. In the following conditions the abuse of the
discretionary power is inferred.

1. Use for improper purpose: 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.

2. Malafide or Bad faith: - 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 (bad faith) may be taken to mean dishonest
intention or corrupta motive. In relation to the exercise of statutory powers it
may be said to comprise dishonesty (or fraud) and malice. A power is
exercised fraudulently. If its repository intends to achieve an object other
than that for which he believes the power to have been conferred. The
intention may be to promote another public interest or private interest.

3. Irrelevant consideration: - The decision of the administrative authority is

declared void if it is not based on relevant and germane considerations. The
considerations will be irrelevant if there is no reasonable connection between
the facts and the grounds.

4. Leaving out relevant considerations: - The administrative authority

exercising the discretionary power is required to take into account all the
relevant facts. If it leaves out relevant consideration, its action will be invalid.

5. Mixed consideration: Sometimes the discretionary power is exercised by

the authority on both relevant and irrelevant grounds. In such condition the
court will examine whether or not the exclusion of the irrelevant or non-
existent considerations would have affected the ultimate decision. If the
court is satisfied that the exclusion of the irrelevant considerations would
have affected the decision, the order passed by the authority in the exercise
of the discretionary power will be declared invalid but if the court is satisfied
that the exclusion of the irrelevant considerations would not be declared
invalid.

6. Unreasonableness: - The Discretionary power is required to be exercised

by the authority reasonably. If it is exercised unreasonably it will be declared
invalid by the court. Every authority is required to exercise its powers
reasonably. In a case Lord Wrenbury has observed that a person in whom
invested a discretion must exercise his discretion upon reasonable grounds.
Where a person is conferred discretionary power it should not be taken to
mean that he has been empowered to do what he likes merely because he is
minded to do so. He is required to do what he ought and the discretion does
not empower him to do what he likes. He is required, by use of his reason, to
ascertain and follow the course which reason directs. He is required to act
reasonably.

7. 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.

8. Non-compliance with procedural requirements and principles of natural

justice: - If the procedural requirement laid down in the statute is mandatory
and it is not complied, the exercise of power will be bad. Whether the
procedural requirement is mandatory or directory is decided by the court.
Principles of natural justice are also required to be observed.

9. Exceeding jurisdiction: - The authority is required to exercise the power

with in the limits or the statute. Consequently, if the authority exceeds this
limit, its action will be held to be ultra vires and, therefore, void.

II. Non-exercise of Discretion

In the following condition the authority is taken to have failed to exercise its
discretion and its decision or action will be bad.

1. Non-application of mind: Where an authority is given discretionary powers

it is required to exercise it by applying its mind to the facts and
circumstances of the case in hand. If he does not do so it will be deemed to
have failed to exercise its discretion and its action or decision will be bad.

2. 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 won but in substance the
power is not exercised by it but by the other authority. The authority
entrusted with the powers does not take action on its own judgement and
does not apply its mind. For example in Commissioner of Police v.
Gordhandas the Police Commissioner empowered to grant license for
construction of cinema theatres granted the license but later cancelled it on
the discretion of the Government. The cancellation order was declared bad
as the Police Commissioner did not apply his mind and acted under the
dictation of the Government.

9. Explain the rule of fair hearing.

Audi Alteram Partem in Administrative Law embodies the fundamental notion

that both sides of a dispute must be heard before a decision is made. It
ensures fairness, transparency and the right to a fair hearing in legal
proceedings and administrative actions.

Audi Alteram Partem is a Latin phrase that translates to "hear the other
side." It is a fundamental principle of natural justice that ensures fairness in
legal proceedings and administrative actions. This principle requires that all
parties involved in a dispute or legal matter should have the opportunity to
be heard and present their case before a decision is made. Audi Alteram
Partem in Administrative Law is considered as a cornerstone of the rule of
law and is essential for upholding justice and preventing arbitrary decisions.

The principle of audi alteram partem is a fundamental aspect of natural

justice and fair legal proceedings. Its essential elements include:

 Notice:
Notice is a fundamental element of natural justice, ensuring that parties are
informed of any action proposed against them. It provides individuals with
the opportunity to respond and defend themselves. Without proper notice,
any subsequent order or decision is considered void ab initio or void from the
beginning. The right to notice is crucial as it allows individuals to understand
the facts and charges against them before a hearing. Notice must include
essential details such as the date, time and place of the hearing, as well as
the jurisdiction under which the case is filed. Additionally, it should clearly
state the charges and proposed actions against the individual. Failure to
include any of these details renders the notice invalid.

In the case of Punjab National Bank v. All India Bank Employees Federation,
the notice provided to the party lacked clarity regarding the imposition of
penalties. As a result, the penalty imposed was considered invalid due to the
improper notice.

Similarly, in the case of Keshav Mills Co. Ltd. v. Union of India, it was
emphasised that notices must be clear and unambiguous. Ambiguous notices
do not fulfill the requirement of providing reasonable and proper notice to
the parties involved.

i. Hearing:

Fair hearing is another crucial aspect of the principle of audi alteram partem,
ensuring that parties have the opportunity to present their case and be
heard before any decision is made. If an authority passes an order without
giving the affected party a fair hearing, the order is considered invalid.

In the case of Harbans Lal V Commissioner and others, it was emphasised

that a fair hearing is an essential part of natural justice. Parties should be
given a reasonable opportunity to be heard, either orally or in writing, as
determined by the authority. However, this requirement may vary if the
statute under which the action is taken provides otherwise. The authority has
a duty to ensure that affected parties have the opportunity for an oral or
personal hearing.

ii. Evidence:

Evidence is a critical component of any legal proceeding and it must be

presented when both parties are present. The judicial or quasi-judicial
authority will base its decision on the evidence presented before it. In the
case of Stafford v Minister of Health, it was held that no evidence should be
accepted in the absence of the other party. If any such evidence is recorded,
it is the duty of the authority to make it available to the other party.

Similarly, in the case of Hira Nath v Principal, it was established that this
principle extends beyond formal evidence. Any information, such as previous
convictions, on which the court may rely without giving the affected party a
chance to deny it, should be made known to the party.

iii. Cross-examination:

Cross-examination is a vital aspect of the legal process, allowing parties to

challenge evidence presented against them without necessarily revealing the
identity of the person providing the evidence. While the court is not
obligated to disclose the identity of the person or the material against them,
the opportunity for cross-examination must be provided.

In the case of Kanungo & Co. v Collector of Customs, the issue arose when
the police, acting under the Sea Customs Act, seized watches from a
business property based on information provided by an undisclosed
individual. Despite the importance of cross-examination in challenging the
evidence, the court ruled that the principle of natural justice was not violated
by denying the concerned person the opportunity to cross-examine the
witness in matters involving goods seized under the Sea Customs Act.

iv. Legal Representation:

Legal representation, while not always deemed essential for a fair hearing in
administrative proceedings, can significantly impact a party's ability to
understand and effectively navigate the legal process. In certain
circumstances, the denial of the right to legal representation may constitute
a violation of natural justice.

In cases such as J.J. Mody v State of Bombay and Krishna Chandra v Union of
India, it was established that refusing legal representation amounts to a
breach of natural justice. This is because the party may not fully comprehend
the intricacies of the law and thus should be afforded the opportunity to be
represented by legal counsel.

Conclusion:

Audi Alteram Partem, as a principle of natural justice, embodies the essence

of fairness and due process in legal proceedings. Its concept revolves around
the fundamental idea that all parties should have the opportunity to present
their case and respond to allegations before a decision is made.
The essentials of Audi Alteram Partem in Administrative Law include the right
to notice, a fair hearing, the presentation of evidence, cross-examination and
legal representation. While there are exceptions to its application, such as in
cases of impracticability or legislative functions, Audi Alteram Partem
remains crucial in upholding justice, preventing arbitrary decisions and
ensuring transparency and fairness in legal systems worldwide.

10. Explain the doctrine of promissory estoppel.

The doctrine of promissory estoppel is basically an equitable doctrine. The

Doctrine of Promissory Estoppel means where one party by his words or
conduct made to the other a clear promise which is intended to create legal
relations or even affect a legal relationship to arise in the future, knowing or
intending that it would be acted upon by the other party to whom the
promise is made, and it is fact so acted upon by the other party, the promise
would be binding on the party making it and he would not be entitled to go
back upon it, if it would be inequitable to allow him to do so. It clearly means
that administrative action would be marked by certainty, predictability and
consistency.

In Gujarat State Financial Corp. v Lotus Hotels (AIR 1983 SC 848) it was held
by the Supreme Court that the writ of mandamus can be issued against the
government or its instrumentalities for the enforcement of contractual
obligation because here, the doctrine of promissory estoppel is applicable to
against the government. Here, the lotus hotels entered into the contract with
the State Financial Corporation of Gujarat for a loan for the purpose of
construction of a hotel. On this agreed promise, the petitioner took certain
loans and thus incurred liabilities. Furthermore, the loan was refused on the
basis of acting of two pseudonymous letters attacking the character of the
proprietors of loan which was already sanctioned.

Doctrine of Promissory Estoppel is based on obligation or equity and is not

based on vested right. In equity, the court has to strike a balance between
individuals' right as well the interest of public. In Union of India v Ganesh
Rice Mills (1998) 9 SCC 630, it was held by the court that the Finance
Minister's statement on the floor of the House did not meant a promise or
any form of representation to the assesse. Thus, in this case, the government
is not estopped from recovering the disputed cess contrary to such
statement.

Doctrine of Promissory Estoppel is available against the exercise of executive

function of the State. In Express Newspapers Pvt. Ltd. Union of India (AIR
1986 SC 872), The Doctrine of Promissory Estoppel was used to prevent the
government for quashing the action of the Minister for approval of a lease as
it was within the scope of his authority to grant such permission. This
ultimately resulted in checking whether there is fraud on the exercise of
power or not. Here, the Express Newspapers were given notices of re-entry
upon forfeiture of lease of land granted to them on which the lessee has
raised buildings for the purpose of printing and publishing the newspapers.
Thus, it was held by the Supreme Court that the action had been politically
motivated and there is clear violation of mala fide intention.

v. Following mentioned are some of the cases wherein the Doctrine of

Promissory Estoppel is not applicable:

1) The administration is not bound to refrain from withdrawal of tax

exemption or tax holiday
2) The administration is no bound to enact a proposed legislation.

3) The administration is not bound to refrain from performance of statutory

duty or discretion.

4) The administration in not bound to create or abolish a civil post, making a

change in the condition of service of persons employed in connection with
the affairs of the State.

vi. Following mentioned are the essential characteristics to make promise

binding on the government:

1) The promise made by the State must be within the scope of law.

2) There must be pure intention to enter into a legal relationship.

3) The other party must act accordance of the promise or will be forbidden to
do anything.

Conclusion:

In this modern era, the promise of Government to citizens or for that matter
even the non-citizens is of great importance especially in case where the
government enters into a promise for a contractual or a business transaction.
It becomes quite important to protect the interests of citizens when such
persons with their earnest money invests with the government and later
receives dejection or cheating from the government, thereby not abiding by
their promise. In such a situation, the individual's investment becomes in a
position of danger thereby leaving the person helpless.

Thus, to deal with such a situation, the Doctrine of Promissory Estoppel came
into function. The Indian Judiciary played a vital role in making the State
responsible for its promise and further made accountable the State to abide
by the promise so made.

11. Explain the liability of the government in relation to contract.

Articles 294, 298, 299 and 300 complete the constitutional code of
contractual liability of the government. Article 294 makes provision for the
succession by the present governments of the Union and the States to
property, assets, rights, liabilities and obligations vested in the former
governments. Article 298 lays down that for the purpose of carrying out the
functions of the State, government can enter into contracts. Article 299
contains essential formalities which a government contract must fulfil. Article
300 provides the manner in which suits and proceedings against or by the
government may be instituted. However, the constitutional code for public
contract is not complete, therefore, it is supplemented by the provisions of
the Indian Contract Act, 1872. A government contract in order to be valid,
besides satisfying the requirements of Article 299, must also fulfil the
requirements of Section 10 of the Indian Contract Act dealing with the
essentials of a valid contract.

The Constitution of India lays down the certain formal requirements for
contracts in Article 299(1).

i. The contract must be expressed to be made by the President or the

Governor, as the case may be.—

These requirements are made mandatory. In Chatturbhuj Vithaldas Jasani v.

Moreshwar Parashram , the court held that the constitutional provisions were
inserted not merely for the sake of form but to safeguard the government
against unauthorised contracts. In this case the question which arose for
consideration was whether a person who has entered into a contract with the
government in violation of the form prescribed in Article 299 was disqualified
to be elected to the legislature under Section 7(b) of the Representation of
the People Act, 1951. This con tract had been entered into by a person
authorised in this behalf but was not expressed in the name of the President.
The Court held that the contract is void.

Though the word "expressed" in Article 299(1) might suggest that the
government contract must be in some particular form, the Supreme Court in
Union of India v. Rallia Ram held that no formal document need be executed.

Article 299 though provides that the government contracts must be ex

pressed in the name of the President or the Governor, as the case may be
yet clause 2 states that they shall not be personally liable in respect of any
contract or assurance.
 ii. The contract must be executed on behalf of the President or the
Governor, as the case maybe.—

Another formality of Article 299(1) is that the competent authority must

execute the contract on behalf of the President of India or Governor of the
State, as the case may be. If such authority by mistake or otherwise does not
sign on behalf of the Chief Executive the contract shall become invalid, as it
also belongs to the category of mandatory conditions.

However, the court has mitigated the harshness of this rule by holding in
Davecos Garments Factory v. State of Rajasthan, that in the absence of any
specific rule, if the competent authority has signed the con tract deed in its
official capacity, the requirement of the formality of Article 299(1) shall be
deemed to have been complied with. In this case, the con tract for the supply
of police uniforms was signed by the Inspector-General of Police who did not
write after his signatures "signed on behalf of the Governor".

iii. The contract must be executed by a person authorised by the

President or the Governor, as the case maybe.—

The condition that government con tracts must be signed by 'authorised

person' only is certainly very fundamental if State is to be protected from
spurious claims made on the strength of unauthorised contracts. Article 299
does not lay down any specific mode of authorisation and, therefore, the
normal governmental procedure of notification in the Official Gazette may be
considered as proper authorisation. Lack of proper authority would render
the contract invalid.

However, again in order to avoid hardship which this requirement may entail,
the court has held in State of Bihar v. Karam Chand Thapar & Bros. Ltd. that
in the absence of any specific authorisation, implied authorisation may be
considered as substantial compliance with this requirement of Article 299(1).

iv. Ratification.—

The question whether an agreement which does not fulfil the requirements of
Article 299(1) can be ratified by the government has been answered in the
negative by the Supreme Court in Mulamchand y. State of M.P. Therefore, the
government cannot ratify a contract if it does not comply with the
requirements of Article 299(1) as to enable it to enforce it against a private
party. However, if the parties to the contract agree to ratification, there
seems to be no reason why ratification may not be allowed.

v. Enforcement of liability. –
The question then arises that if a govern ment contract is void for its non-
compliance with the requirement of Article 299(1) and it cannot be ratified
either, can the party claim the benefit of Sections 70, 230(iii) or 235 of the
Contract Act. Application of Section 70 does not pose much problem.

In New Marine Coal Co. v. Union of India¹9, the Supreme Court held that the
government must make compensation for the coal supplied which has been
consumed by it, even though the contract does not comply with the
requirements of Article 299 of the Constitution. Therefore, if a person has
done something for government under an invalid contract without doing it
gratuitously and the government has obtained any benefit out of it,
government is bound to make compensation.
 12. Explain the liability of the government in relation to tort.

Tortious liability of the administration is dealt in Article 300 of the Indian

Constitution. An overview of Article 300 provides that first part of the Article
relates to the way in which suits and proceedings by or against Government
may be instituted. It enacts that a State may sue and be sued by the name
of the Union of India a State may sue and be sued by the name of the State.

The Second part provides, inter alia, that the Union of India or a State may
sue or be sued if relation to its affairs in cases on the same line as that of
Dominion of India or a corresponding Indian State as the case may be, might
have sued or been sued of the Constitution had not been enacted. The Third
part provides that it would be competent to the Parliament or the legislature
State to make appropriate provisions in regard to the topic covered by Article
300(1).

Article 300 of India Constitution:

(1)The Government of India may sue or be sued by the name of the Union
of India and the Government of a State may sue or be sued by the
name of the State any may, subject to any provision which may be
made by Act of Parliament or of the Legislature of such State enacted
by virtue of powers conferred by this Constitution, sue or be sued in
relation to their respective affairs in the like cases as the Dominion of
India and the corresponding provinces or the corresponding Indian
States might have sued or been sued if this Constitution had not been
enacted.
(2)If at the commencement of this Constitution any legal proceedings are
pending to which the Dominion of India is party, the Union of India
shall be deemed to be substitute for the Dominion in those
proceedings.

Any legal proceedings are pending to which a Province or an Indian State

is a party, the corresponding State shall be deemed to be substituted for
the province or the Indian State in those proceedings.

The first case, which seriously discussed the question of Sovereign Immunity,
is the Pand O Navigation Company v. Secretary of State for India, in this case
a piece of iron funnel carried by some workmen for conducting repairs of
Government steamer hit the plaintiff horse-driven carriage and got injured.
The Plaintiffs sued for damage. The plaintiff filed a suit against the Secretary
of State for India- in council for the negligence of the servants employed by
the Government of India. The Supreme Court delivered a very learned
judgment through the Chief Justice. The Supreme Court at Calcutta, CJ held
that "the Government will be liable for the actions done by its servants while
doing non-sovereign functions but it won't be liable for injuries caused while
pursuing sovereign functions.

Similarly 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. Since then, the distinction between the
sovereign and non-sovereign functions of the State has been the basis of a
number of judicial pronouncements.

Other Provisions dealing with the Tortious Liability of the Administration:

 Under Article 294 (4) of the constitution, the liability of Union

Government or a state Government may arise 'out of any contract or
otherwise. The word otherwise suggests that the said liability may
arise in respects of tortuous acts also. Under article 300 (1), the extent
of such liability is fixed. It provides that the liability of the Union of
India or State Government will be same as that of Dominion of India
and the Provision before the commencement of the Constitution.
 The English law with regard to immunity of the Government for
tortuous acts of its servants is partly accepted in India. The High Court
observed: as a general rule this is true, for it is an attribute of
sovereignty and universal law that a state cannot be used in its own
courts without its consent.' Thus a distinction is sought to be made
between 'sovereign functions' and 'non-sovereign functions' of the
state. The State is not liable in tort.
 Under section 80 of the Code of Civil Procedure, 1908, no suit can be
instituted against the government until the expiration of two months
after a notice in writing has been given.
 Under section 82 of the Code of Civil Procedure, 1908, when a decree
is passed against the Union of India or a State, it shall not be executed
unless it remains unsatisfied for a period of three months from the date
of such decree.
 Under article 112 of the Limitation Act, 1963, any suit by or on behalf
of the Central Government or any State Government can be instituted
within the period of 30 years
 13. What are Administrative Tribunals? Discuss the categories and
characteristics of Administrative Tribunals.

The 42nd Amendment to the Constitution introduced Part XIV-A which

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

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

The purpose of establishing tribunals to the exclusion of the jurisdiction of

the High Courts was done to reduce the pendency and lower the burden of
cases. Therefore, tribunals are organised as a part of civil and criminal court
system under the supremacy of the Supreme Court of India.

From a functional point of view, an administrative tribunal is neither an

exclusively judicial body nor an absolute administrative body but is
somewhere between the two. That is why an administrative tribunal is also
called 'quasi-judicial' body.

Categories Administrative Tribunals Administrative

i. Tribunals for service matter [Article 323A]

Article 323A provides the establishment of administrative tribunals by law

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

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

ii. Tribunals for other matters [Article 323B]

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

In the landmark case of L. Chandra Kumar v. Union of India, the court

reached various conclusions as to jurisdictional powers of the tribunal
constituted under Articles 323A and 323B. The Supreme Court struck down
clause 2(d) of Article 323A and clause 3(d) of Article 323B on the ground that
they excluded the jurisdiction of the High Courts and the Supreme Court
under Article 226/227 and 32 respectively.

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

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

 Characteristics Administrative Tribunals:

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

1. Administrative tribunals must have statutory origin i.e. they must be

created by any statute.

2. They must have some features of the ordinary courts but not all.

3. An administrative tribunal performs the quasi judicial and judicial functions

and is bound to act judicially in every circumstance.

4. They are not adhered by strict rules of evidence and procedure.

5. Administrative tribunals are independent and not subject to any

administrative interference in the discharge of judicial or quasi-judicial
functions.

6. In the procedural matters, an administrative tribunal possesses the powers

of a court to summon witnesses, to administer oaths and to compel the
production of documents, etc.

7. These tribunals are bound to abide by the principle of natural justice.

8. A fair, open and impartial act is the indispensable requisite of the

administrative tribunals.

9. The prerogative writs of certiorari and prohibition are available against the
decisions of administrative tribunals.
 14. Discuss the rule against bias and the different kinds of bias.

The rule against Bias is a fundamental aspect of natural justice, requiring

that any decision-making authority consists of impartial individuals who act
fairly and without prejudice. In this context, bias refers to any preconceived
opinion or predisposition that might influence a person’s judgment
concerning a party or an issue.

Bias encompasses anything that could lead someone to decide a case based
on factors other than the presented evidence. The rule against bias aims to
prevent any improper factors from influencing a judge’s decision in a specific
case. It is rooted in the understanding that it is human nature to avoid
deciding against one’s own interests.

The Rule Against Bias means that decision-makers and judges should not
have any personal, financial, or preconceived feelings or opinions that could
influence their judgment in a case. They should be impartial and treat
everyone fairly and without favouritism to ensure a just and fair outcome.
The rule against bias is fundamental to natural justice and fair administrative
proceedings.

The "Nemo in propria causa judex" principle emphasizes that no one should
act as a judge in their own case, commonly known as the rule against bias.

Types of Bias under Rule Against Bias

The rule against bias can be categorised into different types of bias, such as:

i. Personal Bias
Personal bias occurs when there is a relationship between the decision-maker
and one of the parties involved, leading the decision-maker to act unfairly
and render a judgment in favour of the person to whom they are connected.
Such biases can arise from various personal and professional relationships. It
is essential to provide reasonable evidence of bias to challenge an
administrative action based on personal bias successfully.

In a specific case, Ramanand Prasad Singh vs. UOl, the Supreme Court held
that even though one member of the selection committee had a brother
participating in the competition, the entire selection procedure could not be
invalidated. Instead, to avoid the act of bias, the respective panel member
connected to the candidate should be asked to recuse themselves from the
committee. This way, a fair and impartial decision can be reached.

ii. Pecuniary Bias

Pecuniary bias refers to a situation where a judicial body or authority stands

to gain any form of financial benefit, no matter how small, which can lead to
biased decision-making. In the case of J. Mohapatra & Co. v. State of Orissa
(AIR 1984 SC 1572), the Supreme Court invalidated the decision of the
Textbooks' selection committee because some of its members were also
authors of the books being considered for selection. The Court held that
merely withdrawing a person while considering their own books is insufficient
to eliminate the possibility of quid pro quo with other committee members.

iii. Subject Matter Bias

Subject matter bias occurs when the deciding authority is directly or

indirectly involved in the subject matter of a particular case.

In the case of Muralidhar vs. Kadam Singh, the court refused to quash the
Election tribunal's decision, despite the chairman's wife being a member of
the Congress party, whom the petitioner defeated. In this instance, the court
did not find sufficient grounds to prove subject matter bias.

iv. Departmental Bias

The problem of departmental bias is a prevalent issue in various

administrative processes, and its unchecked existence can erode the concept
of fairness in proceedings. If not effectively addressed at regular intervals, it
can lead to a negative perception of fairness in the entire system.

In the case of Krishna Bus Service Pvt Ltd. v. State of Haryana (AIR 1985 SC
1651), private bus operators alleged that the General Manager of Haryana
Roadways, who was also involved in a rival business within the state, would
not be able to perform his duties impartially. They argued that he might show
leniency in inspecting vehicles belonging to his own department. The
Supreme Court quashed the notification in question because it found a
conflict of interest between the duty of the General Manager and the
department's interests. This conflict of interest led to a loss of public
confidence in the fairness of administrative justice.

v. Pre-Conceived Notion Bias

Pre-conceived notion bias is when a judge or decision-maker already holds a

pre existing opinion or idea about a case before it is heard, potentially
influencing their judgment. It is a delicate issue in administrative law, as
judges are not expected to be entirely impartial like blank sheets of paper,
but preconceived notions can compromise a fair trial.

In the case of Kondala Rao v. APSRTC (AIR 1961 SC 82), the Supreme Court
did not quash the order of the Minister who heard objections from private
operators regarding the nationalization of road transport. It was argued that
the Minister had previously presided over a meeting where nationalization
was favoured, suggesting a pre-conceived notion on the matter.

However the court rejected this contention, emphasizing that the decision of
the committee was not final and irrevocable but merely a policy decision. In
this context, the Court implied that the Minister's prior involvement did not
necessarily imply bias in the hearing process, as the decision was still open
to discussion and modification.

vi. Bias on Account of Obstinacy

Bias on account of obstinacy refers to a situation where a decision-maker

shows unreasonable and unwavering persistence in upholding their own
decision or judgment, even when there are valid reasons to reconsider it.
This type of bias was discovered in a case where a Calcutta High Court judge
upheld his judgment while sitting in appeal against his ruling. While it is not
possible for a judge to directly violate the rule of not sitting in appeal against
their own judgment, they can indirectly violate it, as demonstrated in the
case.

In the case of A.U. Kureshi v. High Court of Gujarat (2009) 11 SCC 84, a
judicial officer (the appellant) was dismissed from service after being found
guilty in a disciplinary inquiry. The appellant had previously acquitted an
accused under the Gambling Act and returned the seized money. A complaint
was later filed against the appellant, leading to a disciplinary inquiry. The
High Court recommended the appellant's dismissal based on the suggestion
of the Disciplinary Committee.

The Supreme Court held that a judge who was part of the Disciplinary
Committee should not have decided the matter on the judicial side. It was
improper for a member of the Disciplinary Committee to adjudicate on a
challenge against the same dismissal order while acting in a purely judicial
capacity.

Such actions create an apprehension of bias on the part of the judge.

Consequently, the Supreme Court set aside the High Court's order and
remitted the matter for fresh consideration, adhering to the principle that no
judge should decide a dispute they have dealt with in any capacity other
than a purely judicial one.

Conclusion

The rule against bias is a crucial principle of natural justice and fair
administrative proceedings. It ensures that decision makers remain impartial
and free from any personal, financial, or preconceived biases that could
influence their judgment. The rule guards against different forms of bias,
such as personal bias, pecuniary bias, subject matter bias, policy notion bias,
pre-conceived notion bias, and bias on account of obstinacy.

15. Analyse the significance of ombudsman in Administrative law.

The Ombudsman in administrative law embodies the essence of democracy

by acting as a check and balance on governmental power. Their unwavering
commitment to justice ensures that the rights of citizens are protected, that
the rule of law is upheld and that government agencies are held accountable
for their actions.

The Ombudsman in administrative law stands as a guardian of individual

rights, a promoter of governmental transparency and a catalyst for
continuous improvement in the functioning of the state. Through their
diligence and dedication, they bolster the foundations of a just and equitable
society.

Meaning of Ombudsman in Administrative Law

An Ombudsman in administrative law is an independent official or body

appointed by the government to oversee and investigate complaints and
grievances against administrative actions and decisions made by
government agencies, departments or public officials.

The primary purpose of an Ombudsman in administrative law is to ensure

transparency, fairness, accountability and adherence to legal and procedural
standards within the administrative processes of the government.

This official is often referred to as a grievance officer. The Ombudsman’s job

is to examine the complaints made by citizens when they believe that a
government agency is not doing its job properly. In simple terms, if the
government isn’t doing things right, citizens can report their concerns to this
official, who works for the government but is independent and impartial.

Importance of Ombudsman in Administrative Law

Regarding the importance of the Ombudsman in administrative law, it's

essential to understand that this official is not a super administrator to whom
you can appeal just because you're not happy with a decision made by a
government official. The main role of the Ombudsman is to investigate
complaints of mismanagement or unfair treatment.

In terms of its usefulness, think of the Ombudsman in administrative law as a

guardian of the government's actions and a protector of regular people. The
Ombudsman looks into all complaints made by citizens when they believe
that the government is using its power improperly, not doing its job well or
being unfair. The Ombudsman has extensive authority, including access to
government records. People who file complaints don't have to provide
evidence; the Ombudsman investigates and can provide remedies to those
who have been wronged.

The Ombudsman's role is to make sure complaints are valid and address
them appropriately. They can even take action on their own if they see a
problem and their authority is not limited like that of a Civil Court.

M.P. SPECIAL POLICE ESTABLISHMENT v. STATE OF MADHYA PRADESH (2004)

8 SCC 788

The Supreme Court has ruled that the Governor may act independently in
the matter of grant of sanction of prosecution against the Chief Minister or
any Minister as in the matters there would be real danger of bias in the
opinion rendered by the Council of Ministers and even in the case of grant of
sanction to prosecute an ex-minister when decision of the Council of
Ministers is shown to be irrational and based on non-consideration of
relevant facts.
JUSTICE K.P. MOHAPATRA v. RAM CHANDRA NAYAK (2002) 8 SCC 1

The Supreme Court while dealing with functions of Lokpal under s.7 of Orissa
Lokpal and Lokayukta Act, 1995 has held that the functions of Lokayukta are
of utmost importance in seeking that unpolluted administration of State is
maintained and maladministration as defined under s.2 (h) of the Act is
exposed, so that appropriate action against such maladministration and
administrator can be taken. The investigation which Lokpal is required to
carry out is quasi-judicial in nature.

Conclusion

The role of Ombudsman in administrative law is pivotal in upholding the

principles of transparency, fairness and accountability within the workings of
government. This independent authority serves as a beacon of hope for
individuals and organisations who encounter administrative issues, ensuring
that their grievances are heard and resolved impartially. The Ombudsman's
multifaceted functions, from mediating disputes to conducting thorough
investigations, shine a light on potential shortcomings within the
administrative apparatus. Through their recommendations and proactive
measures, Ombudsmen help governments enhance their processes, reducing
the likelihood of future conflicts.

16. Discuss the classification of administrative action.

Administrative action is a comprehensive term and defies exact definition. In

modern times the administrative process is a by-product of intensive form of
government and cuts across the traditional classification of governmental
powers and combines into one all the powers, which were traditionally
exercised by three different organs of the State. Therefore, there is general
agreement among the writers on administrative law that any attempt of
classifying administrative functions or any conceptual basis is not only
impossible but also futile. Even then a student of administrative law is
compelled to delve into field of classification because the present-day law
especially relating to judicial review freely employs conceptual classification
of administrative action. Thus, speaking generally, an administrative action
can be classified into four categories:

i. Rule-making action or quasi-legislative action –

Legislature is the law-making organ of any state. In some written

constitutions, like the American and Australian Constitutions, the law making
power is expressly vested in the legislature. However, in the Indian
Constitution though this power is not so expressly vested in the legislature,
yet the combined effect of Articles 107 to III and 196 to 201 is that the law
making power can be exercised for the Union by Parliament and for the
States by the respective State legislatures. It is the intention of the
Constitution-makers that those bodies alone must exercise this law-making
power in which this power is vested. But in the twentieth Century today
these legislative bodies cannot give that quality and quantity of laws, which
are required for the efficient functioning of a modern intensive form of
government. Therefore, the delegation of law-making power to the
administration is a compulsive necessity. When any administrative authority
exercises the law-making power delegated to it by the legislature, it is known
as the rule-making power delegated to it by the legislature, it is known as the
rule-making action of the administration or quasi-legislative action and
commonly known as delegated legislation.

Rule-making action of the administration partakes all the characteristics,

which a normal legislative action possesses. Such characteristics may be
generality, prospectivity and a behaviour that bases action on policy
consideration and gives a right or a disability. These characteristics are not
without exception. In some cases, administrative rule-making action may be
particularised, retroactive and based on evidence.

ii. Rule-decision action or quasi-judicial action –

Today the bulk of the decisions which affect a private individual come not
from courts but from administrative agencies exercising ad judicatory
powers. The reason seems to be that since administrative decision-making is
also a by-product of the intensive form of government, the traditional judicial
system cannot give to the people that quantity of justice, which is required in
a welfare State.

Administrative decision-making may be defined, as a power to perform acts

administrative in character, but requiring incidentally some characteristics of
judicial traditions. On the basis of this definition, the following functions of
the administration have been held to be quasi-judicial functions:

1. Disciplinary proceedings against students.

2. Disciplinary proceedings against an employee for
misconduct.
3. Confiscation of goods under the sea Customs Act, 1878.
4. Cancellation, suspension, revocation or refusal to renew
license or permit by licensing authority.
5. Determination of citizenship.
6. Determination of statutory disputes.
7. Power to continue the detention or seizure of goods
beyond a particular period.
8. Refusal to grant 'no objection certificate' under the
Bombay Cinemas (Regulations) Act, 1953.
9. Forfeiture of pensions and gratuity.
10. Authority granting or refusing permission for
retrenchment.
11. Grant of permit by Regional Transport Authority.

Attributes of administrative decision-making action or quasi-judicial action

and the distinction between judicial, quasi-judicial and administrative action.

iii. Rule-application action or administrative action –

Though the distinction between quasi-judicial and administrative action has

become blurred, yet it does not mean that there is no distinction between
the two. If two persons are wearing a similar coat, it does not mean that
there is no difference between them. The difference between quasi-judicial
and administrative action may not be of much practical consequence today
but it may still be relevant in determining the measure of natural justice
applicable in a given situation.

In A.K. Kraipak v. Union of India, the Court was of the view that in order to
determine whether the action of the administrative authority is quasi-judicial
or administrative, one has to see the nature of power conferred, to whom
power is given, the framework within which power is conferred and the
consequences.

Therefore, administrative action is the residuary action which is neither

legislative nor judicial. It is concerned with the treatment of a particular
situation and is devoid of generality. It has no procedural obligations of
collecting evidence and weighing argument. It is based on subjective
satisfaction where decision is based on policy and expediency. It does not
decide a right though it may affect a right. However, it does not mean that
the principles of natural justice can be ignored completely when the
authority is exercising "administrative powers". Unless the statute provides
otherwise, a minimum of the principles of natural justice must always be
observed depending on the fact situation of each case.

No exhaustive list of such actions may be drawn; however, a few may be

noted for the sake of clarity:

1. Making a reference to a tribunal for adjudication under the Industrial

Disputes Act.
2. Functions of a selection committee.

Administrative action may be statutory, having the force of law, or non

statutory, devoid of such legal force. The bulk of the administrative action is
statutory because a statute or the Constitution gives it a legal force but in
some cases it may be non-statutory, such as issuing directions to
subordinates not having the force of law, but its violation may be visited with
disciplinary action. Though by and large administrative action is discretionary
and is based on subjective satisfaction, however, the administrative
authority must act fairly, impartially and reasonable.

iv. Ministerial action –

A further distillate of administrative action is ministerial action. Ministerial

action is that action of the administrative agency, which is taken as matter of
duty imposed upon it by the law devoid of any discretion or judgment.
Therefore, a ministerial action involves the performance of a definitive duty
in respect of which there is no choice. Collection of revenue may be one such
ministerial action.

1. Notes and administrative instruction issued in the absence of any

2. If administrative instructions are not referable to any statutory
authority they cannot have the effect of taking away rights vested in
the person governed by the Act.

17. Discuss the meaning of Tribunal for the purpose of special leave
to appeal under Article 136 of the Indian Constitution.
The Constitution of India under Article 136 vests the Supreme Court of India
with a special power to grant special leave to appeal against any judgment
or order or decree in any matter or cause passed or made by any
Court/tribunal in the territory of India.

This is special power bestowed upon the Supreme Court of India which is the
Apex Court of the country to grant leave to appeal against any judgment in
case any substantial constitutional question of law is involved or gross
injustice has been done.

"Special leave petition" or SLP hold a prime place in the Indian judicial
system. It provides the aggrieved party a special permission to be heard in
Apex court in appeal against any judgment or order of any Court/tribunal in
the territory of India.

 Special Leave petition or SLP can be presented under following

circumstance:

SLP can be filed against any judgment or decree or order of any High Court
/tribunal in the territory of India; or

SLP can be filed in case the High court refuses to grant the certificate of
fitness for appeal to Supreme Court of India.

 Time frame within which SLP can be filed:

SLP can be filed against any judgment of High Court within 90 days from the
date of judgement; or

SLP can be filed within 60 days against the order of the High Court refusing
to grant the certificate of fitness for appeal to Supreme Court.

 Contents of SLP:

This petition is required to state all the facts that are necessary to enable the
court to determine whether SLP ought to be granted or not. It is required to
be signed by Advocate on record. The petition should also contain statement
that the petitioner has not filed any other petition in the High court.

It should be accompanied by a certified copy of judgement appealed against

and an affidavit by the petitioner verifying the same and should also be
accompanied by all the documents that formed part of pleading in Lower
court. Any aggrieved party can file SLP against the judgment or order of
refusal of grant of certificate.
  The scope of power vested with the Supreme Court of India under
Article 136:

The constitution of India vest "discretionary power" in the Supreme Court of

India. The Supreme Court of India may in its discretion be able to grant
special leave to appeal from any judgment or decree or order in any matter
or cause made or passed by any Court/tribunal in the territory of India. The
Supreme Court of India may also refuse to grant the leave to appeal by
exercising its discretion.

An aggrieved party from the judgment or decree of high court cannot claim
special leave to appeal as a right but it is privilege which the Supreme Court
of India is vested with and this leave to appeal can be granted by it only.

An aggrieved party can approach the Apex Court under Article 136 in case
any constitutional or legal issue exists and which can be clarified by the
Supreme Court of India. This can be heard as civil or criminal appeal as the
case may be.

This is "residual power" vested with the Supreme Court of India.

 Case laws:

Smt. Tej Kumari vs. CIT (2001) 247 ITR 210

The Full Bench of the Patna High Court held that in case a SLP is summarily
rejected or dismissed under Art 136 of the Constitution then such a dismissal
does not lay down any law. The decision of the High Court against which the
SLP is dismissed in limine would not operate as res-judicata. However, when
Supreme Court dismisses an SLP with reason, it might be taken as the
affirmation of the High Court views on merits of the case, thus there is no
reason to dilute the binding nature of precedents in such cases.

N. Suriyakala Vs. A. Mohan doss and Others (2007) 9 SCC 196

The Supreme Court observed with regard to scope of Article 136 that Article
136 of the Constitution is not a regular forum of appeal at all. It is a
"residual" provision which enables the Supreme Court to interfere with the
judgment or order of any court or tribunal in India in its discretion.

Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar AIR 2004 SC 2351

This Court observed that Article 136 is an "extraordinary jurisdiction" vested

by the Constitution in the Supreme Court with implicit trust and faith, and
extraordinary care and caution has to be observed in the exercise of this
jurisdiction. The court further observed that Article 136 does not confer a
right of appeal on a party but vests a vast discretion in the Supreme Court
meant to be exercised on the considerations of justice, call of duty and
eradicating injustice.

18. Discuss the privilege of the Government to withhold documents.

The constitution of India seeks to establish a Democratic Rebuild where

under the equality clauses there is no question of privileged position or
immunity in favour of the state. However, government vis-à-vis the individual
is always a government. There are numerous privileges and immunities
which are legally recognized and enforced in favour of the government.

Government Privilege to Withhold Documents: Position in India

i. Predominance of Public Interest

In India, the government can claim the privilege of withholding documents

from the court under Section 123 of the Evidence Act, 1872/ Section 129 of
the BSA, 2023. This section states that no one can provide evidence from
unpublished official records relating to the affairs of the State without the
permission of the head of the Department.

As a general rule, the requirement is that both the parties to the dispute
must produce all the relevant and material evidence in their possession. If
any party fails to produce such evidence, an adverse inference can be drawn
under section 114 of the Evidence Act/ section 119 of BSA.

Section 123 of IEA/ Section 129 of BSA gives a great advantage to the
Government in as much as inspite of non-production of relevant evidence
before the court, no adverse inference can be drawn against it if the claim of
privilege is upheld by the court. This thing undoubtedly constitutes a very
serious departure, from the ordinary rules of evidence. The basis on which
this departure can be justified is the principle of the "overriding and
paramount character of public interest" i.e. when the public interest served
by disclosure is outweighed by the public interest served by non-disclosure of
documents.

The leading case on the subject is, State of Punjab v Sodhi Sukhdev Singh ,
decide by the supreme court. In this case, the respondent who was a District
& Session Judge was removed from service by the President of India. He
made a representation aginst the removal. In pursuance of the
representation, the council of ministers secured the advice of the public
service commission and therefore decided to re employ him. He then filed a
suit for declaration that his removal was illegal and void. He wanted
production of certain documents. The state claimed privilege in respect of
them. The supreme court by majority held that the documents in question
were protected under section 123 of Evidence Act and could be withheld
from production on the ground of public interest.

ii. Balancing of Public Interest:

In State of U.P. v Raj Narayan, Raj Narayan had filed an election petition
against the then prime minister Smt. Indira Nehru Gandhi. During the trial,
he made an application for production of certain documents. The U.P.
Government claimed privilege in respect of those documents. The Allahbad
High Court rejected the claim for privilege. On appeal, the supreme court set
aside the Allahbad judgement.

iii. Ideal of Open Government as alternate measure:

The final decision in regard to the validity of an objection against disclosure

raised under section 123 of IEA/ Section 129 of BSA would always be with the
court by reason of section 102/ Section 105 of BSA. The court is not bound
by the assertions made by the government in support of plea against non-
disclosure. The court has the power to balance the injury to the state or the
public service against the risk of injustice, before reaching the decision.

iv. Class Privilege:

In State Of Bihar v Kirpalu Shankar, the supreme court held that government
files are privileged documents and no contempt proceedings, civil or criminal
can be initiated on the basis of notings on the files as the privilege is
necessary in order to maintain the independent functioning of civil services
and fearless expression of views.

Similarly the court in Doy Pack Systems Pvt. Ltd. v. Union of India, laid down
that it is the duty of the court to prevent disclosure of documents where
article 74(2) of the constitution is applicable.

Extra questions:
Q. Explain the writ jurisdiction under Article 32 and 226 of the Indian
Constitution in reducing the administrative excess.

Q. Examine Right to Information in India.