MODULE 1

1.1Definition, nature and scope of administrative law

According to Ivor Jennings
“Administrative law is the law relating to the administration. It determines the organisation,
powers and duties of the administrative authorities.”
According to Wade
“Administrative law is the law relating to the control of the governmental powers.”
According to him the primary object of the administrative law is to limit the powers of
Government and to prevent citizens against their abuse.
According to KC Davis
“Administrative law is the law concerning the powers and procedure of the administrative
agencies, including especially the law governing the judicial review of the administrative
actions.”
What administrative law deals with?
Administrative law deals with the following problems:
 Who are the administrative authorities?
 What is the nature of the powers and nature exercised by the administrative
authorities?
 What are the limitations if any imposed on these powers?
 How the administration is kept restricted to its limits?
 What is the procedure followed by the administrative authorities?
 What remedies are available to person that are adversely affected by the
administration?
Meaning, Nature and Scope
Administrative law is the study of law that governs the activities of the administrative
agencies of the government which comprises:
Legislative: Legislature rule making
Executive: Implementation of law
Adjudication: Adjudication or giving judgments
Nature and Scope of Administrative Law
The administrative law has a growing importance and the interest and it is most outstanding
phenomenon in the welfare state today. Knowledge of the administrative law is as important
for the officials as responsible for carrying on administration as for the students of law.
Not a codified Law: Administrative law is not codified like the IPC or law of the contracts. It
is based on the constitution.
Judge made law: It is essentially a judge made law and it is a branch of public law which
deals with the constitution and delegation of power.
Deals with the organisation: Administrative Law deals with organisation and powers of the
administrative and quasi-administrative authorities.
Concerned with the official actions: Administrative Law is primarily concerned with the
official action and the procedure by which official action is reached. Example: Rule Making,
Rule Application, Monitoring actions or pure administration.
Control Mechanism: It includes control mechanism (judicial review) by which the
administrative authorities are kept within bounds and made effective.
Authorities: Administrative law is derived from the authorities from the constitutional and
statutory law.
Rights: Administrative Law relates to the individual rights as well as public needs and
ensures transparency, open and honest governance which is more people friendly.
Means or the End: The study of the administrative law is not an end in itself, but it is a
means.
Emergence and development: Administrative law emerges and develops wherever and
whenever any person becomes the victim of the arbitrary exercise of the public power.
Administrative law I not the branch of the philosophy of law, but of sociology of law.
Branches which govern: It is the body of law which governs the activities of the
administrative authorities of the government. Government agency action includes rule
making, rule adjudication, enforcement of specific regulations and the related agenda.

Sources of Administrative Law

Constitution of India
The constitution of India is the supreme governing body. We observe that there are various
areas such as the fundamental rights, writs, directive principles of state policy, executive,
legislative and judiciary, position of members of union public commission, tribunals etc.,
which form the basis of rule-making.
Acts and Statutes
We see that there are various laws such as Companies Law, Contracts Act, Administrative
Tribunal Act, Ombudsman Act, Lokpal and Lokayukta Act which acts as a source of
legislation.
Ordinances
When the parliament is not in session, the executive branch under Article 123 and 213 is
given the permission to make the ordinances.
Rules
It is defined under the General Clause Act, 1897. It is the rule made in exercise of power
conferred by any enactment. It may be applicable to a particular individual or general public.
Regulations and circulars
It signifies the decisions, orders and Acts of the government are made known to public. In the
sphere of the administrative rule making, it means or it is related to the situation where power
is given to fix the date for the enforcement of an Act. This can also be related to the
exemptions from the rate fixing and prices.
Orders
It covers various types of legislative and quasi-judicial decisions. It may be specific or
general. Specific orders refer to the administrative actions. General administrative rule
making forms a part of such rule making source.
Directions
It is an expression of the administrative rule making under the authority of law or the rule
made thereunder. These may be mandatory or recommendatory.
By-Laws
Rules made by semi-governmental authorities established under the Acts of the legislature.
Schemes and Notifications
It refers to the situation where the law authorizes the administrative agencies to lay down a
framework within which the detailed administrative action is to proceed.
Judicial Decisions
The landmark judgements such as Puttaswamy case related to privacy, Maneka Gandhi vs
Union of India related to right to travel abroad, Vishakha vs State of Rajasthan related to the
prevention of sexual harassment of women at workplace, MC Mehta vs Union of
India related to the control of the environmental pollution, PUCL vs UOI related to the rights
of workers who are working in mines form the basis of the establishment of the ‘tests’ which
may be used to clarify the scope of the provisions of the law and its interpretation. This
includes the ‘Right to Food’ as well.

Conditional legislation and Administrative Directions

The legislature makes the laws but laws the executive bring it into operation when the
condition demanding such operation are obtained. The executive has to decide whether the
required conditions have been satisfied or not for the law to be in operation and if the
required condition have been notified bringing the law into operation. This is called
conditional legislation.
Relationship between Administrative Law and Constitutional Law
The relationship between the administrative law is not clearly marked out but the fact remains
that the two are overlapping in several aspects. There exists a relationship which is
fundamental in with if one were to represent the two branches of law in a Venn diagram, then
both would have a common area known as the watershed area in the administrative law.
So, we see that constitutional law and the administrative law are parts of the public law. Keith
said that it is impossible to distinguish administrative law and all the attempts to do so are
artificial. Administrative law and constitutional law overlap at certain place and the area is
termed as watershed in the administrative law.
In India, in the watershed one can include the whole control mechanism provided in the
constitution for the control of the administrative authorities. These include Article 32, Article
136, Article 226, Article 300, Article 227, Article 311.
It may also include some administrative agencies to regulate a particular field i.e., Article
263 which creates the inter-state council. Similarly, we have Article 280, Article 262, Article
315 and Article 324.
Similarities between the constitutional law and administrative law
 Both are species of public law. This in other words means that both deals with the
government and individuals and the relations among them and the institution of the
government.
 Both deals with the distribution and the exercise of the governmental powers and
functions. Where the constitutional law ends, the administrative law begins.
 Both are concerned with imposing boundaries and the accountability on those that
exercise the governmental powers.
 Their application is founded on the constitutional study of the administrative law
involves copious reference of the constitutional law.
 Both of them are concerned with the human rights issues.
 Both of them rely on the statutes and case laws for their principles and operations.
 The principles of both are enforced by the same institutions i.e., courts, law
enforcement agents etc.
 Dissimilarities of the Administrative and Constitutional Law

Constitutional Law Administrative Law

According to Holland, constitutional law describes Administrative Law describes various organs
various organs at rest. of the government in motion.

According to Ivor Jennings, Constitutional law deals

Administrative law deals with details.
with fundamentals.

Constitutional law is majoritarian. Administrative law is anti-authoritarian.

Constitutional law deals with general principles related Administrative law deals with functions,
to the organs and organisation and powers of various organisation, powers, and duties of the
organs. administrative authorities.

This deals with rights. It lays emphasis on the public needs.

It is the supreme law of land. It is subordinate to Constitutional law.

Reasons for the growth of Administrative Law

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

1.2 Rule of law: origin, role of Indian judiciary, modern concept of rule of
law.
The British people strongly believed in the Divine Theory of State. The king was given the
power to govern the people by the Divine Authority (God). This theory propagates that,
“King can do no wrong, king is above law”. Parliamentary Democracy based on the principle
of equality rooted in Britain. All persons are governed by the same law and same set of rules
and regulations is called the Rule of Law.

The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the
time of King James I. Coke was the first person to criticise the maxims of Divine Concept.
He strongly believed that the King should also be under the Rule of Law. The Rule of Law
doctrine was later developed by A.V. Dicey in his book, “Introduction to the Law of
Constitution (1885The term Rule of Law thus, means the paramountcy of Law over
Government. The derivation of the phrase ‘ Rule of Law’ is from the French phrase ‘la
principe de legalite’ which implies principle of legality. By this phrase it refers to a
government based on principles of law and not of men. ).” The Rule of Law according to
Dicey means that no man is punishable or can be lawfully made to suffer in body or goods
except for distinct breach of law and no man is above the law.

Three principles proposed by A.V. Dicey

1. Absolute supremacy of Law

2. Equality before law
3. Predominance of legal spirit.

Dicey’s rule of law consists of following three meanings:

1. Equality before the law:
Dicey says it emphasises the impartiality of law. It means that there shall be no distinction
between the rich and the poor, officials and non-officials,majority and minority, no one can
be degraded and no one can be upgraded. Law gives equal justice to all.

2. Supremacy of law :
The Rule of Law rejects all kinds of arbitrary and discretionary powers of the government or
public officials. It implies that a man may be punished for a breach of law but he can’t be
punished for anything else. An alleged offence is required to be proved before the ordinary
courts in accordance with the legal procedure.

3. Predominance of legal spirit :

According to the third principle of Dicey, general principles of the Indian Constitution are the
result of the decisions of the Indian judiciary which determine to file rights of private persons
in particular cases. According to him, citizens are being guaranteed the certain rights such as
right to personal liberty and freedom from arrest by many constitutions of the states
(countries). Only when such rights are properly enforceable in the courts of law, those rights
can be made available to the citizens. Rule of law as established by Dicey requires that every
action of the administration must be backed and done in accordance with law. In modern age,
the concept of rule of law oppose the practice of conferring discretionary powers upon the
government and also ensures that every man is bound by the ordinary laws of the land as well
as signifies no deprivation of his rights and liberties by an administrative action.[4]
Criticism
1. His theory was not fully accepted during that era also.
2. Failed to distinguish between discretionary and arbitrary power.
3. He misunderstood the concept of Droit administration which was actually successful
in France.
Modern Concept of Rule of Law:
The Rule of Law is a dynamic concept. It cannot be taken to mean that it is a fixed principle
of law from which there cannot be any departure. The concept Rule of Law has been
discussed by the International Commission of Jurists met in 1959 at New Delhi. The major
findings are:
1.Rule of Law – to safeguard and advance the political and civil rights of the individual in a
free society.
2.To establish social, economic, educational and cultural conditions under which the
individual may realise his legitimate aspirations and dignity.
3.It should not interfere with the religious belief and should not restrict freedom of speech or
freedom of person.
4.No discrimination on minority groups.
5.Adequate safe guards against abuse of power by the executives.
6. There should be an independent judiciary with security of tenure free from legislative and
executive interference.
7.The rule of law necessitates an independent legal profession.
Rule of Law under the India
In India, the concept of Rule of law can be traced back to the Upanishads. [7] In modern day
as well, the scheme of the Indian Constitution is based upon the concept of rule of law. The
framers of the Constitution were well familiar with the postulates of rule of law as
propounded by Dicey and as modified in its application to British India. It was therefore, in
the fitness of things that the founding fathers of the Constitution gave due recognition to the
concept of rule of law. [8]
The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly
incorporated in the Indian Constitution. The ideals of the Constitution viz; justice, liberty and
equality are enshrined in the Preamble itself (which is part of the Constitution).
The Constitution of India has been made the supreme law of the country and other laws are
required to be in conformity with it. Any law which is found in violation of any provision of
the Constitution, particularly, the fundamental rights, is declared void. [9] The Indian
Constitution also incorporates the principle of equality before law and equal protection of
laws enumerated by Dicey under Article 14 [10] .
After Independence:
1. The rule of law has been welcomed by the framers of our constitution. The preamble
assures to provide equality of status and of opportunity and to promote among them all. It
provides the most important fundamental rights to the citizens.
2. The Articles from 12 to 35 of Part III have to be protected by the Supreme Court and High
Courts.
3. Article 14 of the Constitution says that, “The state shall not deny to any person equality
before law within the territory of India. However, it is to be noted that there are few
exceptions to the rule of equality.
4. According to Article 361, The President or the Governor of a state are not answerable to
any court for exercising of powers and duties of his office or any act done by him in the
exercise of those powers and duties provided that the conduct of the President may be
brought under review, on a charge under Article 61, which provided for any person to bring
appropriate proceedings against the Governor of a state.
5. According to Article 20 (1) of the Constitution, No person shall be convicted of any
offence except for violation of a law in force at the time of the commission of the act
charged.
6. Article 21 emphasis that no person shall be deprived of his life or personal liberty except
according to the procedure established by the law.
7. Article 14 provides that no discussion shall take place in the Parliament with respect to the
conduct of any judge of the Supreme Court or High Court in the discharge of his duties
except upon a motion for presenting an address to the President praying for removal of the
Judge as hereinafter provided. The rule of law is regarded as a part of the basic structure of
the constitution and therefore, it cannot be abrogated or destroyed by the Parliament. Every
organ of the state is regulated and controlled by the Rule of Law. Our constitution is the
Mandate. It is the rule of law.

Role of Indian judiciary

There are a plethora of cases where the concept of rule of law was discussed and came into
light. Some of the cases are as follows:

ADM Jabalpur v. Shivkant Shukla

Background
In 1975, National Emergency under Article 352 of the Indian Constitution was imposed by
President Fakruddin Ali, on the advice of the then-Prime Minister Indira Gandhi, on the
ground of internal disturbances. Fundamental Rights under Article 14, 20 and 22 of the
Constitution were suspended for the period of Emergency, by a Presidential Order under
Article 359(1). Scores of political leaders who could prove to be a political threat were
arrested without any trial. Many petitions were filed in various High Courts across the
country, which gave judgements in favour of the petitioners. The Central Government
approached the Supreme Court, which became this very case.
This case is also known as the Habeas Corpus case, as the said writ was asked in the form of
relief by the petitioners. The term literally means “to produce the body” and the writ orders
the directs law enforcement agencies to present an arrested person in front of the Court and
explain the reason behind their detention.
Judgement
The judgement was passed with the majority of 4:1. The Court held that no person can move
the High Court asking for any writ to enforce any fundamental right detained under MISA, as
a claim to the writ of Habeas corpus is an enforcement of Right to Life and Personal Liberty
under Article 21 which is barred by the Presidential Order.
The majority agreed with all the contentions made by the appellants. To justify the
suspension of Fundamental Rights the Court said, “In period of public danger or
apprehension the protective law which gives every man security and confidence in times of
tranquility has to give way to interests of the State.” It was also stated that “Liberty is itself
the gift of the law and may by the law be forfeited or abridged,” when the question about the
status of Article 21 was raised.
Indira Nehru Gandhi vs Raj Narain case (1975)
Facts Of The Case
 In this case, an appeal was filed by the appellant against the decision of the Allahabad
High Court invalidating Smt. Indira Gandhi’s election on the ground of corrupt
practices. In the meantime, the Parliament passed the 39th Constitutional
 Amendment, which introduced and added a new Article 392A to the Constitution of
India.
 It was stated by this Article 392A that the election of the Prime Minister and the
Speaker cannot be challenged in any court n the country. It can be rather challenged
before a committee formed by the Parliament itself.
 Although the Supreme Court validated the election of Indira Gandhi but declared the
39th Amendment to be unconstitutional as it violated the basic structure of the
constitution.
 The 39th Amendment was made to validate with retrospective effect the election of
the then Prime Minister which was set aside by the Allahabad High Court.

Judgement
 The clause of struck down by the Court on the ground that it violated free and fair
elections which was an essential feature that formed the Basic Structure of the Indian
Constitution. The exclusion of judicial review in election disputes in this manner
resulted in damaging the Basic Structure.
 The Supreme Court held clause (4) of the Constitution 39th Amendment Act, 1975 as
unconstitutional and void on the ground that it was outright denial of the Right to
Equality enshrined in Article 14, It was held by the Court that these provision were
arbitrary and were calculated to damaged and destroy the Rule of Law.
 Justice H.R. Khanna held, that the democracy is the Basic Structure of the
Constitution and it includes free and fair election which cannot be violated.
NHRC V. State of Arunachal Pradesh
Facts
 A large number of Chakmas were displaced from erstwhile East Pakistan (Now
Bangladesh) by the Kaptai Hydel Power Project in 1964 and took shelter in Assam
and Tripura, most of them becoming citizens of India in due course of time. At the
request of the State Government, about 4,012 Chakmas were settled in parts of NEFA
(North-East Frontier Agency – now Arunachal Pradesh) with some land that had been
allotted to them in consultation with local tries. The relation between the citizens of
Arunachal Pradesh and Chakmas had deteriorated to such extents that there had been
complaints regarding attempts of forceful expulsion of the latter.
 On September 9, 1994, the People’s Union for Civil Rights issued letters to the Chief
Secretary, Arunachal Pradesh, and the Home Secretary, Government of India bringing
the attention of the National Human Rights Commission (hereinafter mentioned as
NHRC) to the issue.
Issues Involved:
 Whether ousting of a migrant tribe such as the Chakma violates Article 21 of the
Constitution of India.
  Whether the procedure followed for the registration and conferring of citizenship was
done by the book.
Judgement:
The petition was allowed, and the first and second respondents were directed by the Court, by
way of a writ of mandamus, as under-
The first respondent, the State of Arunachal Pradesh, shall ensure that the life and personal
liberty of each and every Chakma residing within the State shall be protected and any attempt
to forcibly evict or drive them out of the State by organised groups, such as the AAPSU, shall
be repelled, if necessary by requisitioning the service of para-military or police force, and if
additional forces are considered necessary to carry out this direction, the first respondent will
request the second respondent, the Union of India, to provide such additional force, and the
second respondent shall provide such additional force as is necessary to protect the lives and
liberty of the Chakmas. Except in accordance with law, the Chakmas shall not be evicted
from their homes and shall not be denied domestic life and comfort therein.
The application made for registration as citizen of India by the Chakma or Chakmas under
Section 5 of the Act, shall be entered in the register maintained for the purpose and shall be
forwarded by the Collector or the DC who receives them under the relevant rule, with or
without enquiry, as the case may be, to the Central Government for its consideration in
accordance with law; even returned applications shall be called back or fresh ones shall be
processed and forwarded to the Central Government for consideration.
While any application made for the registration as a citizen of India by the Chakmas under
Section 5 of the Citizenship Act, 1955, maybe pending consideration, the concerned person
or people shall not be evicted or be removed from their occupation by the first respondent,
State of Arunachal Pradesh, on the grounds that they are not the citizen of India until the
competent authority makes such decision.

1.3 Separation of power: position in USA, UK and India.

The doctrine of Separation of Powers emphasizes the mutual exclusiveness of the three
organs of government, viz., legislature, executive and judiciary. The main underlying idea is
that each of these organs should exercise only one type of function. There should not be
concentration of all the functions in one organ otherwise it will pose a threat to personal
freedom, for; in that case, it could act in an arbitrary manner. It could enact a tyrannical law,
execute it in a despotic manner and interpret it in an arbitrary manner without any external
control. The purpose underlying separation doctrine is to diffuse governmental authority so as
to prevent absolutism and guard against tyrannical and arbitrary powers of the state, and to
allocate each function to the institution best suited to discharge it. The rationale underlying
the doctrine that been that if all power is concentrated in one and the same organ, there would
rise the danger of state absolutism endangering the freedom of the people.
Origin
There is an old adage containing a lot of truth that “power corrupts and absolute power
corrupts absolutely”. To evolve effective control mechanism, man had been looking for
devices to contain the forces of tyranny and authoritarianism. “Separation of Powers” was
conceived to be one such device.
It may not be possible to state precisely the origins of the doctrine of separation of powers.
However, if we look to the writings of the Greek philosopher Aristotle, it is possible to
discern a rudimentary separation of powers doctrine
The English political theorist, JohnLocke (1632-1704), also envisaged a threefold
classification of powers. Writing in The Second Treatise of Government (1689), Locke drew
a distinction between three types of power: legislative, executive and federative.
In the early times, all power would vest in one monarch or king. The same king would make
the law enforce the law and decide the punishment for violation of the law. He was one in all
and all in one. A lot of affairs would run on the whims and fancies of the king. In the
16th century, Montesquieu a French scholar came up with a theory that said that
“concentration of power in one person would result in tyranny”. If the monarch had all
three powers in his hand, people’s liberty would suffer. He said the solution would be the
separation of governmental functions, which implies that three functions should not be
concentrated in a single entity and should be separated into three different independent
organs of the government. The theory of separation means that none of the three organs of the
government can exercise any form which properly belongs to the other two.
If there is a system of checks and balances where one organ keeps a check on the other two
organs by making sure that they don’t misuse their power, the government can run
harmoniously and smoothly.

Separation of powers in India

The functioning of the constitutional bodies in India is based on the theory of separation of
powers. In India, the Parliament is a legislative organ, and Its function is to make laws. The
Parliament cannot enforce laws, nor can it encroach upon the function of the judiciary and act
as code. The executive organ is the president and the Council of Ministers, with Prime
Minister at its head. The executive is responsible for enforcing the laws made by the
legislature. It cannot venture into making laws and deciding cases. The judicial organ is the
Supreme Court. Its function is to interpret the laws made by the legislature and decide upon
the actions taken by the executive. The judiciary cannot usurp the function of the legislature
and start making laws, nor can it take any administrative decisions like the executive.
India being a federal nation, a similar model of separation of powers exists at the state level.
We have a state legislature, which is the Legislative Assembly and the Legislative Council.
The state executive, which is the governor, and the Council of Ministers. And the state
judiciary, which consists of the high courts and the lower judicial. The doctrine of separation
of powers has been adopted in most democratic countries, including India. What the doctrine
needs are that no organ should serve the functions and powers of the other organs. But
precisely applying the doctrine is not ideal, as no organ of the government can work with
absolute independence. The three organs of the government should work in coordination with
each other. If the government should function smoothly.
Separation of powers in the USA
The legislative branch is described in Article 1[vi] of the US Constitution. The legislative
branch is comprised of 100 US senators and 435 members in the US House of
Representatives. Which is known as the US Congress. Making laws is the foremost purpose
of the law-making organ, but it is also liable for accepting the federal judges and justices
approving the national budget and declaring war. Each state gets two senators and some
number of representatives depending on how many people live in that state.
The executive branch is explained in Article 2[vii] of the Constitution. The leaders of this
branch of government are the president and vice president who are responsible for enforcing
the laws of Congress and set forth. The President works intimately with a group of advisors
and councilors known as the Cabinet. These appointed individuals help the President in
making crucial findings within their area of skills and capabilities, such as defense and
Homeland Security, etc.-. The executive branch also appoints government officials,
commands armed forces, and meets with leaders of other nations. And the executive organ
engages nearly 4 million people to get everything done.[viii]
The third organ of the American government is the judicial branch and as stated in Article
three[ix]. This branch is comprised of all the courts in the land from the federal district
courts to US Supreme Court. These courts interpret the US nation’s laws and punish those
who break them. The highest court the Supreme Court settles disputes among states and hears
appeals from state and federal courts, and determines that federal laws or constitutional.
There are nine justices on the Supreme Court who are nominated for life.
Holding the Checks and Balances by one branch on others
The doctrine of separation of powers keeps these three branches of the government, namely
the legislature, executive, and judiciary separate from one and another so that no other branch
could pose threat to another.
Congress will keep its checks and balances on the executive by ratifying the treaty,
impeaching the president, and sometimes by withholding the money and by impeaching the
supreme court judges it keeps its checks on the supreme court too. Whereas the executive
branch can have the checks and balances on the legislature by using its veto power on the
laws that were made and by appointing the judges of the supreme court it endows its checks
and balances.
Similarly, the supreme court also utilizes its checks and balances on the legislative by judicial
review it can declare any law which is void that is passed by the legislature, and when the
orders passed by the president or vice president is unconstitutional it can make them void by
this the supreme court can hold the checks and balances.
The established representations of the powers of the organs of American government are:
 The law-making organ is liable for making the laws of the state and earmarking the
money which is needed to run the government.
  The executive organ is liable for accomplishing and implementing the public policy
which is made and aided by the legislative branch.
 The judicial organ is liable for elucidating the constitution and laws and applying their
simplifications to arguments and cases brought before them.
Separation of Power in England
Although Montesquieu has defined the concept of separation of power from British
constitution, but still at no point of time his doctrine was accepted in strict sense in English.
On the contrary, England has adopted the theory of Integration of Power. It is true that the
three powers are vested in three organs and each has its own peculiar features, but it cannot
be said that there is no sharing out of powers of the government, thus the King is the
executive head as well as an integral part of the legislature.
Similarly, all the ministers are also members of one or the other houses of the parliament. The
Lord Chancellor is head of the judiciary, chairman of the houses of commons (legislature) a
member of the executive and often a member of the cabinet. The house of commons
ultimately controls the legislature. The judiciary is independent but the judges of the Supreme
Court can be removed on an address from both houses of parliament.
In U.K, the concept of separation of power exists but not in formal sense as it is in U.S.A.
The concept of mixed government with checks and balances given by Blackstone is more
predominant in U.K. The three branches are not formally separated and continue to have
overlapped as it is in India.

Rai Sahib Ram Jawaya Kapoor v. State of Punjab

Facts of the case:
In this case, the petitioner, along with five others, was engaged in the business of preparing,
printing, and publications of textbooks for various school level classes, especially the primary
and secondary level books in the State of Punjab under the name of “Uttar Chand Kapur and
Sons”. It is done as per their right to carry out their own business and trade and is legally
valid. It was reported that the Education Department under the State government of Punjab
had come up with a policy on nationalizing this business of trading, publishing and printing
the textbooks, and the same was notified through different notifications for this purpose to
businessmen. Knowing this, the petitioners have filed a petition under Article 32 of the Indian
Constitution alleging that the act of nationalizing the publications and printings of books
would interfere with their right to freedom of trade and business under Article 19(1) (g) of the
constitution and had practically driven out them from this business. It was urged that such a
restriction has been laid on them without any proper legislative backings for such a policy,
and mere notifications not conforming to the requirements under Article 19(6) shall make the
policy invalid and unconstitutional. Thus, they sought the court to issue the writ of
mandamus, which would enable the state government to disable the said notifications.
Decision:
The court observed and held as follows.
With respect to the first question on whether there was a violation of fundamental rights of
the petitioners through the act by the state government, the court refused to accept the
petitioners argued that there was a violation of fundamental rights under article 19(1) (g). It
observed that, when it comes to school books, it is the school who should suggest the kind of
books, and it is not the right of publishers to insist the students or school for acceptance of
their books as textbooks. It noted that when a trader is lucky enough in the market, his goods
would be secured, but if he loses any such trade, then he or she shall not state that his or her
fundamental right to have the customers has been violated. Thus, it stated and held that the
scopes of such chances are incidental to each business, and there is no fundamental right in
the present case.
Lastly, With respect to the second issue, the court firstly the importance of articles 73 and
162 of the Indian Constitution as it deals with executive powers and the extent to which
parliament and state powers are executed. In that way, it was observed by the court that a
modern state should be expected to engage in all the activities that are required for the
welfare of the people of the country. It also observed that in order to carry on particular trade
or business, it is indeed required that special legislation is enacted for additional requirement
of powers other than what has been provided to an executive as per law. In that situation,
special legislation would be required to encroach upon the privacy rights, for that matter. As
the question of whether there was a violation of the fundamental rights of petitioners was
dismissed, it is also immaterial to state whether the government could, in a way, have powers
to establish a monopoly without law under article 19(6) of the constitution shall remain
immaterial as well. Thus the petition was dismissed by the Supreme Court of India.
P. Sambamurthy v. State of Andhra Pradesh
In Sambamurthy v. The State of A.P. arose a question of great legal importance having a far
reaching effect. In this case the Supreme Court held that Article 371-D (5) (Proviso) of the
Constitution violates the Rule of Law which is a basic structure and essential feature of the
Constitution. This constitutional provision empowered the State Government of Andhra
Pradesh to nullify any decision of the Administrative Services Tribunal. Declaring the
provision unconstitutional, the Supreme Court observed : "It is a basic principle of the rule of
law that the exercise of power by the executive or any other authority must not only be
conditioned by the Constitution but must also be in accordance with law and the power of
judicial review is conferred by the Constitution with a view to ensuring that the law is
observed and there is compliance with the requirement of law on the part of the executive and
other authorities. It is through the power of judicial review conferred on an independent
institutional authority such as the High Court that the rule of law is maintained and every
organ of the state is kept within the limits of the law. Now if the exercise of the power of
judicial review can be set at naught by the state government by overriding the decision given
against it, it would sound the death-knell of the rule of law. The rule of law would cease to
have any meaning because then it would be open to the state government to defy the law and
get away with it. The proviso to clause (5) of Article 371-D is therefore clearly violative of
the basic structure doctrine."

Asif Hameed and Ors. v. State of Jammu and Kashmir and Ors. (1989)
In this case, the Supreme Court opined that when any action of the state is challenged, the
court’s role is to assess the action in light of the law and determine whether the executive or
the legislature has operated within the limits set by the Constitution; if not, the court must
overturn the action. The court must do so while remaining within its self-imposed boundaries.
The court renders a decision based on the actions of a government branch. The court is not an
appellate authority when it exercises judicial review of administrative action. The
Constitution forbids the court from directing or advising the executive on policy concerns, or
from preaching on any issue that falls within the domain of the legislative or executive, as
long as these organs do not exceed their constitutional or statutory authority.

Panama Refining Co. v. Ryan

Brief Fact Summary. Congress made a delegation of power to the President of the United
States under Section:9(c) of the National Industrial Recovery Act which exceeded
constitutional limits. In 1933, the President issued Executive Order 6199 via the National
Industrial Recovery Act (NIRA). The order prohibited transporting petroleum and petroleum
products in interstate and foreign commerce if they had been produced in excess of the
amounts permitted by states. Panama Refining Co. operated an oil refinery and sought an
injunction against enforcing the regulations that were created under the NIRA.
Judgement
Writing for the 8-1 majority, Chief Justice Charles E. Hughes concluded the order was not
constitutional. Supreme Court held that in enacting the order, the President subsumed
legislative powers that Congress does not have the power to delegate. Congress cannot
delegate legislative powers to other branches of government in order to sustain the
democratic system of government. When it allows the executive branch to make rules,
Congress must provide policies and standards for formulating them. This was not the case in
the regulation of oil transportation. The lack of any limits on executive discretion concerned
the Court and rendered the order unconstitutional.
Kilbourn v. Thompson
Facts
Kilbourn (plaintiff) was called to testify before the United States House of Representatives
(defendant). but he refused to answer on the ground that the questions concerned private
matters., and the Speaker of the House issued a warrant for his commitment to prison.
Kilbourn brought suit, alleging that a body of Congress did not have the authority to hold him
in contempt without due process of law.
Judgement
Unanimously, in an opinion by Justice samuel f. miller, the Court held that neither house of
Congress can punish a witness for contumacy unless his testimony is required on a matter
concerning which "the House has jurisdiction to inquire," and, Miller added, neither house
has "the general power of making inquiry into the private affairs of the citizen." The subject
of this inquiry, Miller said, was judicial in nature, not legislative, and a case was pending in a
lower federal court. The investigation was fruitless also because "it could result in no valid
legislation" on the subject of the inquiry. Thus, the courts hold final power to decide what
constitutes a contempt of Congress, and Congress cannot compel a witness to testify in an
investigation that cannot assist remedial legislation.

1.4 Administrative tribunals: Composition, functions and Jurisdiction

History of Tribunalisation
The concept of tribunalisation came into existence in India with the establishment of the
Income Tax Appellate Tribunal before the independence of the country. After independence,
a need was being felt for resolving administrative disputes with flexibility and speed. The
core objective of tribunalisation was to provide specialised and speedy justice to the people.
After the drafting of the Indian Constitution, several rights for the welfare of the individuals
were guaranteed by the Constitution. People have the right to speedy trials and of specialised
quality which cannot be delivered by the prevailing judicial system due to the overburden of
cases and appeals, technicalities in procedure etc.
Hence, the need for the inception of the administrative tribunals couldn’t be ignored.
Growth 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.
Characteristics of Administrative Tribunals
The following are the few attributes of the administrative tribunals which make them quite
disparate from the ordinary courts:
1. Administrative tribunals must have statutory y 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.
Administrative Tribunals for service matter [Article 323A]
Article 323A provides the establishment of administrative tribunals by law made by
Parliament for the adjudication of disputes and complaints related to the recruitment and
conditions of service of Government servants under the Central Government and the State
Government. It includes the employees of any local or other authority within the territory of
India or under the control of the Government of India or of a corporation owned or controlled
by the Government.
The establishment of such tribunals must be at the centre and state level separately for each
state or for two or more states. The law must incorporate the provisions for the jurisdiction,
power and authority to be exercised by tribunals; the procedure to be followed by tribunals;
the exclusion of the jurisdiction of all other courts except the Supreme Court of India.
Tribunals for other matters [Article 323B]
Article 323B empowers the Parliament and the State Legislature to establish tribunals for the
adjudication of any dispute or complaint with respect to the matters specified under clause (2)
of Article 323B. Some of the matters given under clause (2) are a levy, assessment, collection
and enforcement of any tax; foreign exchange and export; industrial and labour disputes;
production, procurement, supply and distribution of foodstuffs; rent and it’s regulation and
control and tenancy issues etc. Such a law must define the jurisdiction, powers of such
tribunals and lays down the procedure to be followed.
In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached various
conclusions as to jurisdictional powers of the tribunal constituted under Articles 323A and
323B. The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article
323B on the ground that they excluded the jurisdiction of the High Courts and the Supreme
Court under Article 226/227 and 32 respectively.
The SC ruled that the tribunals created under Article 323A and 323B would continue to be
the courts of the first instance in their respective areas for which they are constituted. The
litigants are not allowed to approach the High Courts directly by overlooking the jurisdiction
of the concerned tribunal.
No appeal for the decision of the tribunal would lie directly before the Supreme Court under
Article 136 but instead, the aggrieved party would be entitled to move the High Court under
Article 226 and 227 and after the decision of the Division Bench of the High Court, the party
may approach the Apex Court under Article 136.
The Administrative Tribunals Act, 1985
In pursuance of the provisions in Article 323A, Parliament passed the Administrative
Tribunal Act, 1985, providing for all the matters falling within the clause(1) of Article 323-A.
According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre
and a State Administrative Tribunal (SAT) at the state level for every state.
The tribunal is competent to declare the constitutionality of the relevant laws and statutes.
The Act extends to, in so far as it is related to the Central Administrative Tribunal, to the
whole of India and in relation to the Administrative tribunals for states, it is applicable to the
whole of India except the State of Jammu and Kashmir (Section 1).
Objective for the establishment of Administrative Tribunals
The main purpose of the introduction of this act was :
1. To relieve congestion in courts or to lower the burden of cases in courts.
2. To provide for speedier disposal of disputes relating to the service matters.
Applicability of the Act
According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all
Central Government employees except –
 The members of the naval, military or air force or any other armed forces of the
Union
 Any officer or servant of the Supreme Court or any High Courts
 Any person appointed to the secretariat staff of either House of the Parliament.
Composition of the Tribunals and Bench
Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall
consist of a Chairman, Vice Chairman, Judicial and Administrative members. Every bench
must include at least one judicial and one administrative member. The benches of the Central
Tribunal shall ordinarily sit at New Delhi, Allahabad, Calcutta, Madras, Bombay and such
other place as the Central Government specifies. The Chairman may transfer the Vice
Chairman or other members from one bench to another bench.
Qualification and Appointment of Members
Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the
qualifications and appointment of the members of tribunals.
Chairman: To be appointed as a chairman, a person must have the following qualifications-
 He is or has been a judge of a High Court or
 He has held the office of Vice Chairman for two years or
 He has held the post of secretary to the Government of India or
 He has held any other post carrying the scale pay of secretary.
Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-
 Is or has been a judge of the High Court or
 Has for 2 years held the post of Secretary to the Government or holding any other post
carrying the same pay scale under the Central or State Governments or
 Has held for 5 years the post of an Additional Secretary to the Government of India or
any other post carrying the scales of pay of Additional Secretary.
Judicial Member: A person to be appointed as a judicial member must-
 Be or have been a judge of the High Court or
 Have been a member of Indian Legal Service and has held a post in Grade I of the
service for at least 3 years.
Administrative Member: A person to be appointed as an Administrative member must-
 Have held the post of an Additional Secretary to the Government of India or another
equivalent post for at least 2 years, or
 Have held the post of a Joint Secretary to the Government of India or other equivalent
post, or
 Have adequate administrative experience.
The Chairman, Vice-Chairman and other members shall be appointed by the President. The
Judicial Members shall be appointed by the President with the consultation of the Chief
Justice of India. The Chairman, Vice-Chairman and other members of the State Tribunal shall
be appointed by the President after consultation with the Governor of the concerned state.
Term of Office
According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the
tribunal shall hold the office for a term of 5 years or until he attains-
1. Age of 65 years, in the case of the Chairman or Vice-Chairman
2. Age of 62 years in the case of other members
Resignation and Removal
Section 9 of the Act prescribes the procedure of resignation by any member and removal of
any member.
The Chairman, Vice-Chairman or other members may resign from his post by writing to the
President.

They shall be removed from their office only by an order made by the President on the
ground of proved misbehaviour or incapacity after an enquiry made by a judge of the
Supreme Court. They shall have the right to be informed of the charges against them and
shall be given a reasonable opportunity of hearing. The Central Government may make rules
to regulate the procedure for the investigation of the charges against them.
Jurisdiction of Central Tribunal
Section 14 states that the Central Tribunal from the day of the appointment shall exercise all
the jurisdiction, powers and authority in relation to the following matters which were within
the jurisdiction of other courts (except the Supreme Court) before the enactment of this Act:
1. Recruitment of any civil service of Union or All India service or civil post under the
Union or civilian employees of defence services;
2. All service matters of the above-mentioned employees, and also of employees of any
local or other authority within the territory of India or under the control of the
Government of India or any corporation or society owned or controlled by the
Government;
3. All service matters of such persons whose services have been placed by the State
Government or any local or other authority or any corporation at the disposal of the
Central Government.

Procedure and Powers of Tribunals

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of
tribunals discussed below-
1. A tribunal is not bound to follow the procedure laid down by the Code of Civil
Procedure, 1908. It has the power to regulate its own procedure but must abide by the
principle of natural justice.
2. A tribunal shall decide the applications and cases made to it as rapidly as possible and
every application shall be decided after scrutinizing the documents and written
submissions and perceiving the oral arguments.
3. Tribunals have the same powers as vested by the civil courts under the Code of Civil
Procedure, 1908, while trying a suit, with regard to the following subject-matter-
4. Summoning and enforcing the attendance of any person and examining him on oath;
5. Production of documents;
6. Receiving evidence on affidavits;
 7. Ask for any public record or document from any office under Section 123 and 124 of
the Indian Evidence Act, 1872;
8. Issuing commissions for the examination of witnesses and documents;
9. Reviewing its decisions;
10. Deciding the case ex-parte;
11. Setting aside any order passed by it ex-parte;
12. Any other matter prescribed by the Central Government.

Distinction between Courts and Tribunals

Courts Administrative Tribunal

A Court of law is a part of the traditional The administrative tribunal is an agency created by
judicial system. a statue endowed with judicial powers.

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

It is strictly bound by all the rules of It is not bound by the rules of the Evidence Act
evidence and by the procedure of the Code and the CPC unless the statute which creates the
of Civil Procedure. tribunal imposes such an obligation.

It is presided over by an officer expert in the It is not mandatory in every case that the members
law. need to be trained and experts in law.

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

It is not obligatory to follow precedents and

It is bound by precedents, the principle of res
principle of res judicata but the principle of natural
judicata and the principle of natural justice.
justice must be followed.

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

The courts do not follow investigatory or

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

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

Facts: The constitutionality of the National Company Law Tribunal (NCLT) and National
Company Law Appellate Tribunal (NCLAT) on the following grounds-
1. Parliament does not have authority to vest the judicial functions in any tribunal that
have been traditionally performed by the High Courts since so long.
2. Transferring the entire company jurisdiction of the High Court to the tribunal are
violative of the doctrine of Rule of Law, Separation of Powers and Independence of
the Judiciary.
3. The various provisions of Part 1B and 1C of the Companies Act are defective and
unconstitutional, being in breach of constitutional principles of Rule of Law,
Separation of Powers and Independence of the Judiciary.
Judgment: the court upheld the constitutionality of NCLT and NCLAT in exercising the
powers and jurisdiction of the High Court subject to necessary changes to be made in
the Companies Act, 1956 as amended in 2002, through suitable amendments
The court acknowledged and upheld the constitutional power of the Parliament to constitute
tribunals for adjudication of disputes. The legislative competence of Parliament to provide for
the creation of courts and tribunals can be traced to Article 245, 246 and 247 of the
Constitution read with various entries in the Union List and the Concurrent List which is in
no way affected or controlled by Article 323A or 323B of the Constitution.
The court further added that it cannot be assumed that constitution of tribunals and
transferring judicial powers per se infringe the rule of law, separation of powers and
independence of the judiciary because the Constitution enables both courts and tribunals to
exercise judicial powers.
What matters the most is whether the constituted tribunals respect and maintain the principles
of separation of powers, rule of law and independence of the judiciary. The constitution of
NCLT and NCLAT must be subject to judicial review so that the court in the exercise of
judicial review look into the matter to check if these principles are compromised by such
tribunalisation and may interfere in between to preserve the same.
L. Chandra Kumar v Union of India
Main Issues/facts
1. Whether the Tribunals constituted and functioning under the Act can be said to be
effective substitutes for the High Courts in discharging the power of Judicial review?
If not, then what are the amendments required to make the tribunals conform to their
founding objectives?
2. Whether the power conferred by 3(d) of Article 323-B or by 2(d) of Article 323-A
upon State Legislatures or Parliament exclude the jurisdiction of all courts (except
Supreme Court under Article 136) in respect of complaints and disputes referred in
clause 1 of Article 323-A, and runs counter to the power of judicial review conferred
under Article 226/227 and Article 32 on High Courts and Supreme Court
respectively?
 3. Whether the Tribunals possess the competence to test the constitutional validity of a
statutory rule which are constituted under Article 323-A or under Article 323-B of the
Indian Constitution?

Judgment
The judgment was delivered by the Constitution Bench of seven judges. The bench observed
that the judicial review is the most essential and basic structure of the Indian Constitution
similarly the jurisdiction conferred under the Article 32 on the Supreme Court and under the
Article 226 and 227 on the High Court is also a part of basic structure which cannot be
amended and altered as the decision given by the bench in the Kesavananda Bharati case. It
is also said that for securing the independence of the judiciary, the superior courts have been
given the power of judicial review. Though the Indian Parliament has the power and right to
amend the Constitution it cannot amend the basic structure of the Constitution. It was held
that Section 28 of the Administrative Tribunal Act, 1985 excludes the power of judicial
review of all the High Courts and the “exclusion of jurisdiction” clauses in all other Acts and
legislations enacted under the aegis of Article 323A and 323B would be ultra vires of the
Constitution. The jurisdiction conferred on the Supreme Court as well as on the High Courts
is part of the inviolable basic structure of the Constitution, thus, Clause 2(d) and Clause 3(d)
of Articles 323A and 323B of the Indian Constitution to the extent that they exclude the
jurisdiction of the high courts are unconstitutional. It was also held that there will be no
Constitution prohibition against the Tribunals in performing a supplemental role, they will
not be considered as the substitutes of the High Courts or the Supreme Courts.
Madras Bar Association v. Union of India
Facts of the case
The President of India on 4th April 2021 promulgated an Ordinance, on the recommendations
of the Central Government, while exercising its powers under Article 123 of the Indian
Constitution because, even though the bill was tabled in the Lok Sabha in Budget Session,
2021, no debate and discussion could follow the same and hence the said law was introduced
as an ordinance.g
The Ordinance titled, the Tribunals Reforms (Rationalisation and Conditions of Service)
Ordinance, 2021, which per se, called for amendments in as many as nine statutes- The
Copyright Act, 1957; The Airports Authority of India Act, 1994; The Trade Marks Act,
1999; The Geographical Indications of Goods (Registration & Protection Act), 1999; The
Patents Act, 1970; The Control of National Highways (Land & Traffic Act, 2002; to replace
the existing tribunals with High Courts, established under each of these statutes, citing poor
adjudication of disputes coupled with delay in dispensing justice; along with questioning the
‘judicial independence’ of such tribunals, claimed to be working under the influence of the
executive by many Advocate Bar Associations since quite long.
The President of India on 4th April 2021 promulgated an Ordinance, on the recommendations
of the Central Government, while exercising its powers under Article 123 of the Indian
Constitution because, even though the bill was tabled in the Lok Sabha in Budget Session,
2021, no debate and discussion could follow the same and hence the said law was introduced
as an ordinance. Moreover, it amended the provisions of the Finance Act, 2017 in order to
make the Central Government responsible for making rules regarding the appointments,
salaries, tenures of the members of tribunals, and their appointment shall be made by a
Search-Selection Committee headed by the Chief Justice of India or any Supreme Court
Judge nominated by him. Sections 184 and 186 of the Finance Act were amended by Sections
12 and 13 of the Ordinance, respectively, limiting the maximum age of appointment of a
chairman or a member of any tribunal to 50 years, i.e., no person over the age of 50 years is
eligible for appointment to the tribunals for any position. It also fixed the members’ term at
four years or the attainment of 70 years for the Chairperson and 67 years for any other
member, whichever is earlier, and limiting their salaries.
Hence, the Madras Bar Association approached the Supreme Court in order to declare the
Sections 12 and 13 of the Ordinance ultra vires Articles 14, 21, 50 of the Indian Constitution
and the Principles of Judicial Independence and Separation of Powers, which happen to be
integral to the basic structures of the Indian Constitution.
Findings of the court
A three-judge bench of the Supreme Court, comprising of Justices L Nageswara Rao, S
Ravindra Bhat, and Hemant Gupta, on 14th July 2021 struck certain provisions of the
Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021
unconstitutional, which fixed the term of the members of the Tribunals to 4 years, by a 2:1
majority.
Justices L Nageswara Rao and S Ravindra Bhat, in their majority judgment, opined that this
specific clause in the Ordinance violated the past directions of the Supreme Court wherein the
terms of all such chairmen and members of Tribunals was fixed to be five years. In his
dissenting judgment, Justice Hemant Gupta was of the opinion that laws could not be struck
down merely because they are not in accordance with the precedents of the Apex Court.
With regard to the appointments made by the Search-Selection Committee, the Apex Court
issued a direction mandating that all such appointments must be made within three months of
receiving the recommendation, instead of the earlier discretionary provision, with only one
name to be suggested for every post, instead of two.

1.5 Statutory corporations

Statutory corporations are defined as autonomous corporate bodies that are created by a
special act of Parliament or state legislature having predefined functions, duties, powers and
immunities as defined by the act of the legislature.
Statutory corporations enjoy autonomy in case of finance and are answerable to the particular
legislature under which it was formed.
Features of Statutory Corporation
The following are the features of statutory corporation:
1. Corporate Body: Statutory corporations are corporate bodies. They are artificial persons
which are created by the law and are regarded as a legal entity. These corporations are
managed by a board of directors who are appointed by the Government.
These corporations have the right to enter into contracts and are able to do any kind of
business under the company name.
2. State Owned: Statutory corporations are fully owned by the state, the state lends full
support by subscribing to the capital in whole.
3. Autonomous Employee System: The employees of the statutory corporations are not
regarded as government servants although being owned by the Government. The employees
are recruited and paid as per the rules laid down by the corporation.
4. Financial Autonomy: Statutory corporations have financial autonomy or independence.
They are not managed under any kind of accounting, budget and audit. However, in times of
need, the statutory corporations can borrow money from the government.
5. Answerable to the legislature: The statutory corporations enjoy freedom in case of internal
management and running of the operations of the corporation, but are answerable to the state
or government legislature that created it.
Merits of Statutory Corporation
Following are the merits of statutory corporation:
1. Expert Management: Statutory corporations are managed by directors who are very much
experienced in their respective fields. This imparts professionalism in the management of the
statutory corporations.
2. Autonomy in Administration: Statutory corporations enjoy autonomy in the administration
of the corporation.
3. Quick decision making: Statutory corporations have significantly less file work and
formalities as compared to other forms of organisations which results in quick decision
making.
4. Efficient Staff: The employees of the statutory corporation are provided fair wages,
facilities and proper working conditions along with developmental programs. All these
contribute towards making employees motivated to perform more efficiently.
5. Ease of raising capital: As these corporations are owned by the government, fundraising is
easy as they can raise funds by issuing bonds at low interest rates.
Demerits of Statutory Corporation
Following are the demerits of statutory corporation:
1. Autonomy only on paper: Although statutory corporations are autonomous, the working of
these corporations are hampered by interference from ministers, political parties that impacts
their autonomy.
2. Rigid laws: The statutory corporations enjoy flexibility in operations, but rigid rules and
regulations make changing any of the existing rules a time-consuming process. Any
amendment that needs to be made to the existing set of rules needs to be presented in
parliament which makes it tedious.
3. Lacks Initiative: These corporations lack any profit motive and therefore the employees
and management are not interested in taking any initiative for generating profit.
4. Clash of Interest among members: The members of board directors are selected by the
government and there may exist differences of opinion among directors, which leads to a
clash of interests among them

MODULE 2

2.1 Meaning, classification and Reasons for growth of Delegated legislation

Meaning of delegated legislation

‘Delegation’ has been defined by Black’s Law Dictionary as an act of entrusting a person
with the power or empowering him to act on behalf of that person who has given him that
power or to act as his agent or representative. ‘Delegated legislation’ means exercising of
legislative power by an agent who is lower in rank to the Legislature, or who is subordinate to
the Legislature. Delegated legislation, additionally alluded to as an auxiliary legislation, is an
enactment made by an individual or body other than Parliament. Parliament, through an Act
of Parliament, can allow someone else or some body to make enactment. An Act of
Parliament makes the system of a specific or particular law and tends to contain an outline of
the purpose for the Act. By delegating the legislation by Parliament to the Executive or any
subordinate, it empowers different people or bodies to integrate more details to an Act of
Parliament. Parliament along these lines, through essential enactment (for example an Act of
Parliament), licenses others to make laws and guidelines through delegated legislation. The
enactment made by authorize person must be made as per the reason set down in the Act of
Parliament.
According to M.P Jain, this term can be used in two senses:[1]
 Exercise by subordinate agency or agency that is lower in rank to legislature
delegated to it by the Legislature.
 The Subsidiary rules made by the Subordinate Authority in the execution of the power
bestowed on it by the Legislature.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and
Quasi-Legislation.
Classification Of Delegated Legislation
The different kinds of such legislation are :
1. Title based classification
2. Discretion based classification
3. Purpose based classification
4. Authority based classification
5. Nature based classification
Title based Classification:
i) Rules: These are framed by the concerned statutory authority named in the Act. E.g.
Income Tax Rules.
ii) Orders: The Govt. is empowered to issue the orders according to the Parent Act.
iii) Regulations: These are generally made by such autonomous statutory authorities like
Universities, public corporations etc.
iv) Notification: It is a statutory instrument under which the Govt. heralds its power to make
rules or exercise some power under a Statute (Act), e.g. : Defence of India Act provided as
follows: The Central Govt. may by notification etc.
v) Standing Orders: These are made by an Industrial establishment dealing with the
conditions of service agreed to by employer and workers. But, these are to be certified by the
prescribed authority (i.e., Commissioner) for their validity.
vi) Rules made by the Courts: The Supreme Court Rules 1950, the High Court Rules & the
Rules of Practice (for Lower courts). These are made by the Courts. (These are also subject to
Ultra Vires Doctrine).
vii) Schemes: These are the ways & means to implement certain measures e.g. Bonus
schemes. It may be in any other area as a Scheme under Motor Vehicles Act to take over or
nationalize certain routes etc.
Discretion based classification
(i) Contingent or conditional legislation
A statute that provides control but specifies that they are to go into effect only when a given
administrative authority finds the existence of conditions defined in the statute itself. It is
fact-finding, not discretionary. Such as,
 future applicability left to the subjective satisfaction of the delegate as to indicating the
proper time
 Act enforced but power to withdraw the same from operation delegated to satisfaction of
the delegate.
 Power exercisable upon the delegate’s satisfaction of objective facts by a class of people
seeking benefit of the exercise of such power to deprive the rival class of persons of statutory
benefits.
Last category of conditional legislation attracts the principles of natural justice. Though
delegated legislation as such does not attract the principles of natural justice, but it applies in
the case of conditional legislation where a person is deprived of his statutory rights.
(ii) Subordinate legislation
The process consists of the discretionary elaboration of rules and regulations. The distinction
is one of discretion. ‘It may be noted that this distinction is hardly real. In contingent
legislation also, a certain amount of discretion is always present. The contingent legislation
formula is a fiction developed by the U.S. Supreme Court to get away from the operation of
separation of powers. Whereas conditional legislation contains no element of delegation of
legislative power and is, therefore, not open to attack on the ground of excessive delegation,
delegated legislation does confer some legislative power on some outside authority and is,
therefore, open to attack on the ground of excessive delegation.
Purpose based classification
On the basis of different purposes it is made to serve.
(i) Enabling Act: such Acts contain an ‘appointed day’ clause under which the power is
delegated to the executive to appoint a day for the Act to come into operation.
(ii) Extension and Application of Act: extension and application of Act in respect of a
territory or for duration of time or for any other such object.
(iii) Dispensing and Suspending Acts: power is delegated to the administrative authority to
make exemptions from all or any provision of the Act in a particular case or class of cases or
territory, when at the discretion of the authority, circumstances warrant it.
(iv) Alteration Acts: Alteration is a broad term and includes both modification and
amendment. The power of modification is limited to consequential changes, but if
overstepped it suffers challenge on the ground that it is not within the legislative intent of
modification. Sometimes includes the power to remove difficulties so that the various statutes
may coexist.
Amendment- e.g. power to change the schedule of an Act.
(v) Taxing Act: The policy of the taxing statute must be clearly laid down by the legislature.
(vi) Supplementary Acts: Power is delegated to the authority to make rules to carry out the
purposes of the Act.
(vii) Approving and Sanctioning Acts: Power is delegated not to make rules, but to approve
the rules framed by another specified authority.
(viii) Classifying and Fixing Standard Acts: Power is given to administrative authority to fix
standard of purity, quality or fitness for human consumption. Courts have upheld on grounds
of necessity.
(ix) Penalty for Violation of Acts: Power may be delegated to administrative authority to
prescribe punishment for violation of rules.
(x) Clarify the provisions of the statute’ Act: Power is delegated to the administrative
authority to issue interpretation on various provisions of the enabling Act.
Authority based classification
Based on the position of the authority making the rules.
Sub-delegated legislation: When the rule-making authority delegates to itself or to some
other subordinate authority a further power to issue rules, such exercise of rule-making power
is known as sub-delegated legislation
Rule-making authority cannot delegate power unless such power of delegation is contained in
the enabling act. Such authorization may be either express or by necessary implication.
Maxim ‘delegatus non potest delegare’ indicates that sub-delegation of power is normally not
allowable, though the legislature can always provide for it.
If the authority further delegates its law-making power to some other authority and retains a
general control of a substantial nature over it, there is no delegation as to attract the doctrine
of ‘delegatus non potest delegare.’ The maxim was originally invoked in the context of
delegation of judicial powers and implied that in the entire process of adjudication, a judge
must act personally except in so far as he is expressly absolved from his duty by a statute.
Sub-delegation in very wide language is improper and some safeguard must be provided
before the delegate is allowed to sub-delegate his power
Nature-based classification
On the basis of nature and extent of delegation
(i) Normal delegation
(a) Positive- where the limits of delegation are clearly defined in the enabling
Act.
(b) Negative- where power delegated does not include power to do certain
things, i.e., legislate on matters of policy.

(ii) Exceptional delegation

Instances of exceptional delegation may be:
-power to legislate on matters of principle
– power to amend Acts of Parliament
– power conferring wide discretion that is almost impossible to know the limits
– power to make rules without being challenged in a court of law
Power to bring Act into Action As it is already given that in a specified date this Act will
come into force prescribed by Central or State Government by giving a notice in the Official
Gazette.
In A.K. Roy vs. Union of India, case Supreme Court held that executive has the power to
bring the Act into force and it should not be excessive in delegated power of legislation. So,
here the court rejected the contention that the power was excessive in nature as per
vprescribed. It was practically difficult for enforcement. Therefore, power is given to the
executive authority to decide the date of enforcing the act.
Conditional Legislation the rules are framed or designed by the legislature but to implement
or enforce it, is done by the executive organ, so executive has to look that what all conditions
need to be fulfilled to bring it in operation. If all conditions are satisfied then it is well and
good otherwise notice will be issued to bring the law into operation and it is known as
Conditional Legislation.
Types of Conditional Legislation-
 Power to bring the act into action.
 Power to extend the time period or life of the act.
 Power to extend the application of the act to any territory and to make restriction or
make an alteration in the act itself.
 Exempt the operation on certain ground or subjects of territories.

Factors Responsible for The Rapid Growth of Delegated Legislation

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

Position in the USA: Two phenomena operate in the USA namely—

1. Separation of Power and
2. “Delegatus non potest delegare”.(One to whom a power is delegated, cannot himself
further delegate that power)

Since Congress was itself a delegate, how can it delegate its power. The framers of the
American Constitution were imbued with the political theories propagated by John Locke and
Montesquieu. John Locke has said: "The legislature cannot transfer the power of making laws
to any other hands: for it being but a delegated power from the people, they who have it
cannot pass it over to others."

According to Locke "the legislature neither must, nor can, transfer the power of making laws
to anybody else, or place it anywhere but where the people have. "Montesquieu had
developed this doctrine of separation of powers.

The framers of the American Constitution adopted the doctrine in its full force as seen in the
provisions of the US Constitution: Art. 1, section 1. All legislative powers herein granted
shall be vested in the Congress of the United States, which shall consist of a Senate and
House of Representatives.

Art. 2, section 1. The executive power shall be vested in a President of the United States of
America.

Art. 3, section 1. The judicial power of the United States shall be vested in one Supreme
Court and in such inferior courts as the Congress many, from time to time, ordain and
establish.

Alongside this doctrine of separation of powers the American constitutional law had negated
doctrine of separation of powers.

Position in England: In England the Parliament is Supreme, unhampered by any

constitutional limitations with wide legislative powers on the executive. Parliament being
supreme and it power to legislate being unlimited, there is nothing to prevent Parliament from
delegating its legislative power to the executive officers or other subordinate bodies. Sir Cecil
Carr in this "Delegated Legislation" quoted in the Report of the Committee on Ministers'
Powers, usually referred to as the Donoughmore Committee, said : "The first and by the far
smallest part is made by the Crown under what survives of the prerogative.

The second and weightiest part is made by the King in Parliament and consists of what we
call Acts of Parliament. The third and bulkiest part is made by such persons or bodies as the
King in Parliament entrusts with legislative power." As observed by Sir Cecil Carr, "the truth
is that if Parliament were not willing to delegate law-making power, Parliament would be
unable to pass the kind and quantity of legislation which modern public opinion requires." In
England, the practice of delegating legislative power has certainly been facilitated by the
close fusion of the legislative and executive power resulting from the development the
cabinet system of government in England.

Position in India
Pre Independence: In Queen v. Burah, only Conditional Legislation has been validated by
the Privy Council and therefore delegated legislation is not permitted as per its reasoning.
The administration of civil and criminal justice of a territory can be vested in the hands of
those officers who were appointed by the Lieutenant-Governor from time to time.
The Privy Council has stated that it is better to take help from the subordinate agency in
framing the rules and regulations that are going to be the part of the law and giving another
body the essential legislative features that has only given to the Legislature through the
Constitution. He also stated about the essential legislative function that included in
determining the legislation policy.
In King v. Benori Lal Sharma, Condition legislative was again applied by the Privy Council,
the same as in the case of Queen v. Burah. In this case the validity of the Emergency
Ordinance given by Governor-General of India was challenged inter alia. It was challenged
on the ground that he is taking the power of the Provincial Government. He was setting up
special criminal courts for particular kind of offences but for the settling of any court, power
has been given only to the Provincial Government. The judicial committee held that this is
not delegated legislation. Privy Council also held that it is an example of an uncommon
legislative power by which the local application of the provision of State determined by the
local administrative body when it is necessary.
Post independence- he Delhi Laws Act, 1912, giving power to the Government to extend to
Delhi and Ajmer-Marwar with such restrictions and modifications as it thought fit any law in
force in any other part of India, was held intra vires-As regards constitution of the delegation
of legislative powers the Indian Legislature cannot be in the same position as the prominent
British Parliament and how far delegation is permissible has got to be ascertained in India as
a matter of construction from the express provisions of the Indian Constitution. It cannot be
said that an unlimited right of delegation is inherent in the legislature power itself. This is not
warranted by the provisions of the Constitution and the legitimacy of delegation depends
entirely upon its being used as an ancillary measure which the legislature considers to be
necessary for the purpose of exercising its legislative powers effectively and completely. The
legislature must retain in its own hands the essential legislative functions which consist in
declaring the legislative policy and laying down the standard which is to be enacted into a
rule of law, and what can be delegated in the task of subordinate legislation which by its very
nature is ancillary to the statute which delegates the power to make it. Provided the legislative
policy is enunciated with sufficient clearness or a standard laid down the courts cannot and
should not interfere with the discretion that undoubtedly rests with the legislature itself in
determining the extent of delegation necessary in a particular case.
2.3 parliamentary control and procedural control of Delegated legislation

Legislative control/parliamentary control

The underlying object of parliamentary control is to keep watch over the rule-making: -
authorities and also to provide an opportunity to criticize them if there is abuse of power on
their part. Parliament has control in that the enabling or parent Act passed by Parliament sets
out the framework or parameters within which delegated legislation is made. In India, the
question of control on rule-making power engaged the attention of the Parliament.

Every delegate is subject to the authority and control of the principal and the exercise of
delegated power can always be directed, corrected or cancelled by the principal. Hence
parliamentary control over delegated legislation should be a living continuity as a
constitutional remedy. The fact is that due to the broad delegation of legislative powers and
the generalised standard of control also being broad, judicial control has shrunk, raising the
desirability and the necessity of parliamentary control.
In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to
delegate its legislative power to the executive because of some reasons, it is not only the right
of the Legislature, but also its obligation, as principal, to see how its agent i.e. the Executive
carries out the agency entrusted to it. Since it is the legislature which grants legislative power
to the administration, it is primarily its responsibility to ensure the proper exercise of
delegated legislative power, to supervise and control the actual exercise of this power, and
ensure the danger of its objectionable, abusive and unwarranted use by the administration.

In U.S.A., the control of the Congress over delegated legislation is highly limited because
neither is the technique of “laying” extensively used nor is there any Congressional
Committee to scrutinise it. This is due to the constitutional structurization in that country in
which it is considered only the duty of courts to review the legality of administrative rule-
making.

In England, due to the concept of Parliamentary sovereignty, the control exercised by

Parliament over administrative rule-making is very broad and effective. Parliamentary control
mechanism operates through “laying” techniques because under the provisions of the
Statutory Instruments Act, 1946, all administrative rule-making is subject to the control of
Parliament through the Select Committee on Statutory Instruments.
In India parliamentary control of administrative rule-making is implicit as a normal
constitutional function because the executive is responsible to the Parliament. There are three
types of control exercised:

1.Direct General Control

Direct but general control over delegated legislation is exercised:
(a) Through the debate on the act which contains delegation. Members may discuss anything
about delegation including necessity, extent, type of delegation and the authority to which
power is delegated.
(b) Through questions and notices. Any member can ask questions on any aspect of
delegation of legislative powers and if dissatisfied can give notice for discussion under Rule
59 of the Procedure and Conduct of Business in Lok Sabha Rules.
(c) Through moving resolutions and notices in the house. Any member may move a
resolution on motion, if the matter regarding delegation of power is urgent and immediate,
and reply of the government is unsatisfactory.
And “test of Mandatory” & “Test of Directory” are two main test.
Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into
impact then in such a case laying need is mandatory.
Where the provision is mentioned that the rules should be drafted in a particular format then
it becomes mandatory to follow the format.
Test of Directory – Where the laying need is next to enforce the rule into operation then it
will be directory in nature.

2. Direct special control

This control mechanism is exercised through the technique of “laying” on the table of the
House rules and regulations framed by the administrative authority. The notable use of this
technique was made in the Reorganization Acts of 1939 to 1969, which authorised the
President to reorganise the executive government by administrative rule-making.
Laying on Table- In almost all the Commonwealth countries, the procedure of ‘Laying on
the Table’ of the Legislature is followed. It serves two purposes: firstly, it helps in informing
the legislature as to what all rules have been made by the executive authorities in exercise of
delegated legislation, secondly, it provides a forum to the legislators to question or challenge
the rules made or proposed to be made.
Legal consequences of non-compliance with the laying provisions
3. Indirect control
This is a control exercised by Parliament and its committees. Another name for such type of
committee is Subordinate legislation. The main work of the committee is to examine
1. Whether rule are according to general object of the act.
2. It bars the jurisdiction of the court in direct or indirect ways.
3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural Justice.
5. Expenditure involved in it is from Consolidated fund.
Procedural and Executive Control
There is no particular procedure for it until the legislature makes it mandatory for the
executive to follow certain rules or procedure.
To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines
are given which need to be followed while whether it is mandatory or directory to follow it
or not. It includes three components:
1. Pre publication and consultation with an expert authority,
2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain specified parameters are given:
1. Scheme of the Act.
2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale

2.4 Judicial control of Delegated legislation

Judicial review upgraded the rule of law. The court has to see that the power delegated is
within the ambit of the constitution as prescribed. Judicial review is more effective because
court do not recommend but it clearly strikes down the rule which is ultra vires in nature. As
per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate
that State should not make any law which abridge the right given in Part iii of the
Constitution. It is dependent on two basic grounds:
1. It is ultra vires to the Constitution of India, and
2. It is ultra vires to the enabling Act.
Following are the grounds on which judiciary can control/ review the delegated legislation
which is as follows:
When the Parent Act is ultra vires the Constitution:
This is a situation where it is observed that if the Parent Act violates the provisions of the
Constitution, it is void and unconstitutional.
The delegation made under such Act is also void, in the case of Chintaman Rao vs. State of
M.P, AIR 1951 SC 118, the District Collector under delegated authority passes an order for
prohibiting Beedi manufacturing, where it was held that the order passed is ultra vires
because it violates the fundamental right guaranteed under Article 19(1)(g) of Indian
Constitution which talks about freedom of trade and profession which has been guaranteed to
all citizens of India.
In certain cases it can be observed that certain provisions of the Act may be unconstitutional
on the ground of being excessively delegated which doesn�t mean that the whole act is
unconstitutional.
Delegated Legislation not authorised by the enabling act:
In most countries where there is excess of authorities it invalidated the subordinate
legislation. In many cases the court has made an effective application of its mind to seek that
there is proper delegation of power and the power does not goes beyond the scope of enabling
authority by the delegated Act by defining the limits of the law- making power.
Delegated Legislation is Ultra vires the Parent Act:
The validity of delegated legislation can be questioned on the ground that it is ultra vires of
the Parent Act. It was observed in the case of Ram Prasad v. State of U.P, ,the Uttar
Pradesh Panchayat Raj Rule 87 framed under the Parent Act (U.P Panchayat Act, 1947) was
held to be ultra vires of the Parent Act.
Sub- delegation:
A general and a basic rule from the law of agency is that a delegate cannot re- delegate its
authority, but in certain cases it is not applied to the countries who have written constitution.
The principle of sub delegation is subject to criticism and not accepted, unless there is a
provision express or implied to that effect. Hence, the validity of an act under sub-delegation
can be questioned ultra vires.
Non-compliance of Court’s order:
If it has been observed that the government tries to escape and avid the direction given by the
Supreme Court, then the Court has the power to struck down that particular act.

Non-application of Mind:
Delegated legislation can also be struck down by the judiciary if it is observed that the
delegatee has not made an application of their mind in delegating the powers to the relevant
facts and situations while taking the decisions.

2.5 Conditional legislation

When the law is complete and certain conditions are laid down as to how and when the law
would be applied by the delegate, it is conditional legislation. It includes no law-making
powers but only the power of determining when it should come into force or when it should
be applied.
Supreme Court in Hamdard Dawakhana v. Union of India [1] stated that in conditional
legislati5ron, the delegate’s power is that of determining when a legislative declared rule of
conduct shall become effective.
Conditional Legislation can be found in the occurrences where :-
I. The legislature empowers the executive to expand the activity of a current law to a specific
area or region.
II. To determine and decide the time of application of an Act to a given area.
III. To broaden the span of a Temporary Act, subject to maximum period fixed by the
legislative assembly.
IV. To determine and decide the degree and limits within which the statute or Act should be
employable and operative.
V. Lastly, to introduce a special law if the contemplated situation has arisen in the opinion of
the government.
Conditional Legislation allows better implementation and better reach of laws as it gives
them ample discretion to work and to make decisions regarding implementation in the best
manner possible. Thus, all the modern socio-economic welfare schemes are a formation of
the legislature, but they have become successful in the country because of their
implementation. All the “when, where and how” aspects of implementation have been ticked
generously by the government because of the discretion that they have been given by the
legislature for the implementation of the Acts framed by the lawmakers. But this discretion
cannot be exercised beyond the power that has been delegated. If exceeded, then that action is
null and void.
In re Delhi Laws Act, AIR 1951 (bible case)
Facts
In Re Delhi Laws Case, there were some pre-existing Acts, which contained some delegation.
Let’s take a look at which sections of the respective Act talks about delegated legislation.
1) The Delhi Laws Act,1912: Section 7 says that “the provincial government may, by
notification in the official gazette, extend with such restriction and modification as it thinks
fit to the province of Delhi or any part hereof, any enactment which is in force in any part of
British India at the date of such notification.”3
2) The Ajmer- Marwar (extension of laws) Act, 1947: Section 2, “the Central Government
may, by notification in the official gazette, extend to the province of Ajmer-Marwar with
such restrictions and modifications as it thinks fit any enactment which is in force in any
other province at the date of such notification.
3) Part C States (Laws) Act, 1950: Section 2 runs as follows, authority was delicate to the
Central Govt. for two purposes & two provisions were made.
i) To Extend & apply with restriction and modification recruitment in force in part A state to
part C state.
ii) There’s an ability where a delegation of powers to Central Govt. can be done to repeal or
amend any corresponding law.
Before Independence, during the formation of this Act, the states were divided into three
kind’s i.e the Part A States/ Part B States/ Part C States. These Acts were sent to the President
and they entertained the doubt regarding a delegation power i.e whether such delegation was
proper and permissible. So, the President of India referred to the SC under art. 123 of
Constitution6 for seeking the opinion on delegated power given to the Executive/
Administration in the mentioned Acts.”
In short, whether the Indian Parliament and State Legislature had the power to
transfer its sole functions of a legislative body to executive authority. And if so, then to
what limits can it be done so?
Based on the opinion of the seven judges (which the researcher is going to talk about it
further), Supreme Court decided their Judgment:
1. “Separation of Power” is not presented as something related to the Indian Constitution
from its inception.
2. Indian Parliament was never a representative of anyone. Hence, the doctrine of “delegatus
non potest delegare” (no transfer of power can be anymore transferred) cannot be held to be
applying here.
3. Parliament cannot relinquish itself by making a parallel authority.
4. Only auxiliary capacities or non-essential tasks can be given.
5. There's a restriction on the giving of authority. The Legislative powers should not transfer
its vital processes to determine the legislation's policy and to enforce it into definitive
standards of behaviours.
Overall, the judgment legitimized the delegation of the legislative power by the legislature to
the administrative organ/ it gives an overall limit on delegation by the legislature.

Gwalior Ryon Silk Manf. Co. Ltd. v. Asst. Commissioner of Sales

In this case under section 8(2)(b) of the Central Sales Act, 1956, Central Government was
authorised to calculate the tax in certain cases at the rate of 10% or at the rate applicable in
the appropriate State. The said section was challenged on the ground that Parliament in not
fixing the rate itself and in adopting the rate applicable within the appropriate State has not
laid down any legislative e policy and had abdicated its legislative function. A new test was
propounded by Court to determine the constitutionality of delegated legislation. According to
Justice K.K. Mathew, so long as legislature can repeal the enabling Act delegating law
making power, it does not abdicate its legislative function and, therefore, the delegation must
be considered as valid howsoever broad and general delegation may be. However, the
majority led by Justice Khanna did not agree to this "abdication test" and reiterated the
already well established test of policy and guidelines.
D.S. Grewal v.The State of Punjab(op)
Facts: This case questions the constitutionality of All India Service Act, 1951. The appellant
was appointed to All India Service and posted to the State of Punjab. He held the charge of
Superintendent of Police in various districts but was reverted or returns to the post of
Assistant Superintendent of Police in August 1957 and was posted to Dharamsala in March in
the year 1958.
In the same month, he was informed that an action has been taken against him under Rule 5
of the All India Services (Discipline and Appeal) Rules, 1955. An enquiry committee was set
up against him under the leadership of Shri K. L. Bhudiraja. He then immediately made an
application under Article 226 of the Indian Constitution before the Punjab High Court
challenging the constitutionality of the Act and legality of the enquiry against him. Six
contentions were made by the appellant lawyer.

Judgment: K.N. Wanchu, Justice of the Supreme Court at that time, dealing with the power
of delegated legislation under Article 312 of the Indian Constitution. As the case has been
very serious the appellant can be removed or compulsorily dismissed from the post by the
Central Government and therefore Central Government has instituted enquiry against him.
There is nothing mentioned in Article 312 of the Indian Constitution that takes away the
power of delegation.
Sikkim v. Surendra Sharma(op)
Facts: After Sikkim became the State of the Union of India, the Directorate of Survey and
Settlement of Government of Sikkim created and advertised for certain temporary posts. Like
other people, the respondent has also applied for the post. They got selected and were
appointed in different capacities. After the survey work got completed some of the employees
got terminated from the job. In 1982, some of the employees, who were �not locals�, filed
a writ petition in the High Court of Sikkim challenging the decision of the Government
asking why it has fired the employees from the service on the ground that they were not
locals.

Judgment: The judge held that the termination of the employees solely on the ground that he
is not local is impermissible under Article 14 and 16 of the Indian Constitution. It was held
that all rules and legislations created under the power which is granted under sub-clause (k)
of the Article 371F constituted subordinate legislation. This article was added to the
Constitution through the 36th Constitutional Amendment.
Lachmi Narain v. UOI
Facts
In Lachmi Narain v. UOI, the validity of Section 2 of Union Territories (Laws) Act, 1950 and
Section 6 of Bengal Finance (Sales Tax) Act, 1941 was to be determined. The issue was that
whether notification issued by Central Government in purported exercise of its powers under
Section 2 ultra vires of Central Government.
Judgement
The Court stated that ‘we are of opinion that the impugned notification, dated December 7,
1957, purporting to substitute the words “such previous notice as it considers reasonable” for
the words “not less than three months’ notice” in Section 6(2) of the Bengal Act, is beyond
the powers of the Central Government, conferred on it by Section 2 of the Union Territories
(Laws) Act, 1951.’ In consequence, the notifications, dated April 1, 1958, September 19,
1959, June 29. 1966 and July 31, 1970, in so far as they withdrew the exemptions from tax in
the case of durries, pure silk, country liquor, Kirana articles, etc. without complying with the
mandatory requirement of not less than three months’ notice enjoined by Section 6(2) of the
Bengal Act, are also invalid and ineffective.
As the result, Court allowed these appeals, set aside the judgment of the appellate bench of
the High Court, and declare the notification dated December 7, 1959, and the subsequent
notifications in so far as they withdrew the exemptions from tax mentioned above, to be
unconstitutional.

Darshan Lal Mehra v. Union of India (excessive delegation case)

In the case of Darshan Lal Mehra v. Union of India, the Supreme Court upheld the
constitutionality of ‘theatre tax’ which was imposed by Lucknow Mahanagar Palika, at the
rate of Rs. 5 per cinema show held in a building which had a rental value of Rs. 10,000 or
more and Rs. 3 per show in other cases, under the U.P. Nagar Mahapalika Adhiniyam, 1959
which allowed the Mahapalikas to impose a tax “for the purposes of this Act” and rejected
the contention that the use of this expression was a case of excessive delegation, holding that
the obligations and functions of Maharlikas are well defined and tax can be imposed only in
accordance with the provisions of the Act. Further, the classification of cinema houses on the
basis of rental value was also upheld as, the Court observed, the rental value reflected the
seating capacity, quality, and locality of cinema houses, all factors which affect the
entertainment value and the tax is imposed on entertainment, meaning that the classification
is based on intelligible differentia (difference in rental value) and has a rational nexus with
the object (tax on entertainment).
Atlas Cycle Industries Ltd. v. State of Haryana
Facts
On 29 December 1964, the Development Officer of the Directorate-General, Technical
Development, New Delhi, carried out a spot review of the balance sheet. From a review of
the books of accounts of the said appellant, it was discovered that from 1 January 1964 to 12
January 1965, the company had purchased 60.03 metric tons of plain iron sheets from
multiple suppliers at a rate higher than the maximum permissible price set for such sheets by
the Iron and Steel Controller, by the authority conferred by the Iron and Steel Control Order,
1956.
Similar charges under Section 120B of Indian Penal Code read with Section 7 of the Essential
Goods Act and Section 7 read with Section 15(3) of the Control Order are imposed by a
special magistrate. The Appellants applied under Section 251 of the Code of Criminal
Procedure because the allegations had already been presented before the Court. They also
responded to their prosecution, claiming that the notification from the government that set the
maximum selling prices of different Iron & Steel categories, including the product in question
in the present case, was not put before the parliament, and was therefore not valid. The order
framing the charge was also contended to be a nullity.
Judgement
It should be noted that sub-section (6) of Section 3 of the Act generally requires that any
order made in accordance with Section 3 by the Central Government or any officer or
authority of the Central Government shall be brought before both Houses of Parliament and
laid down as soon as possible after it has been made. But it does not provide whether it would
be subject to negative or affirmative resolution by either House of the Parliament.
It further does not specify as to the time during which the order has to be laid down before
both the houses nor does it specify the penalty for the non-compliance or non-observance
with the instructions for laying the order before both the Houses of the Parliament.
From the cases and provisions cited it can be clearly concluded that the legislature’s intention
was never to make the order or notification void by failing to comply with section 3(6) of the
Essential Commodities Act. Consequently, failure to submit the order or notification before
both Parliament Houses can not result in the notification being annulled. Due to this, it
becomes unnecessary for the court to deal with the other claim raised by the respondent to the
effect that the aforementioned notification was of a subsidiary character, it was not necessary
to make it valid by laying it before both Houses of Parliament. Therefore the appeal was
dismissed.

Govind Lal Chhagan Lal Patel v. APM Committee

Facts: An Inspector of Godhra Agricultural Produce Market Committe filed a complaint
against the appellant charging him with purchasing a certain quantity of ginger in January and
February 1969, without obtaining a licence. Trial Magistrate acquitted the appellant on the
ground that the relevant notification in regard to the inclusion of ginger was not shown to
have been promulgated and published as required by the Act. On appeal to the High Court,
appellant was convicted. After this appellant preferred an appeal to the Supreme Court.
Decision: The Supreme Court held that the question whether statute is mandatory or directory
depends upon the intent of the legislature and not upon the language in which the intent is
clothed. The meaning and intention of the legislature must govern the implementation of the
Act and these are ascertained, not only from the phraseology of the provision, but also by
considering its nature, its design and the consequences which would follow from construing it
in one way or the other. The use of word "shall" or "may" is not conclusive on the question
whether the particular requirement of law is mandatory or directory. The circumstance that
the legislature has used the language of compulsive force is always of great relevance and in
absence of anything contrary in the context indicating that a permissive interpretation is
permissible, the statute ought to be construed as peremptory
Hamdard Dawakhana Waqf v. Union of India
In Hamdard Dawakhana v. Union of India [AIR 1960 SC 554], the Supreme Court observed
that "the distinction between conditional legislation and delegated legislation is this, that in
the former the delegates power is that of determining when a legislative declared rule of
conduct shall become effective and the latter involves delegation of rule-making of conduct
shall become effective and the latter involves delegation of rule-making power which may be
exercised constitutionally by the administrative agent. This mean that the Legislature after
having laid down the broad principles of its policy in the legislation can leave details to be
supplied by the administrative authority. Under delegated legislation the delegate
supplements the legislation by supplying details within the limits prescribed by the statute, on
the other hand, in the case of conditional legislation the power of legislation is exercised by
the Legislature conditionally leaving to the discretion of an external authority, the time and
manner of carrying its legislation into effect as also the determination of area to which it is to
extend".

MODULE 3
3.1 Meaning, Nature and Scope of Judicial Review, Limits on exercise of
Judicial review.
Meaning of Judicial Review
Judicial Review can be understood as a form of court proceeding, usually in the
Administrative Court where the lawfulness of a decision or action is reviewed by the judge.
Where there is no effective means of challenge, judicial review is available. The concern
behind Judicial Review is that whether the law has been correctly applied with and right
procedures have been followed.

Scope of judicial review

Judicial review is not absolute, as some situations need to be met in order to demur against
any law in the Supreme Court or the high courts, i.e., a law can be questioned only if:
 The law violates the fundamental rights that are enshrined by the Constitution.
 The law infringes upon the provisions listed in the Constitution.
 The enacted law goes beyond the capacity or power of the official(s) in charge that
enacted it.
Meaning of Review
Review is a tool that is used by an aggrieved party, to request a court of law to take a second
look at its decision or verdict. Review is used in situations where there is no provision for an
appeal. Review is not a statutory right of the people and is considered a discretionary right of
a court as it can reject the request for a review. Review is sought in the same law court from
where the original decision came. There is no system of a second review. Review can be
undertaken suo motu by a court of law.
Meaning of Appeal
When a party to a decision of the Court is not satisfied with the verdict and decides to appeal
against the decision, it is said to be an appeal. There are always people who feel cheated or
disappointed by a verdict of the Court. These people seek relief from the judgment as they
appeal in a higher court of law for the reversal or modification of the verdict. An appeal is,
therefore, a plea for a second judgment on the same matter by the aggrieved party. In most
judicial systems, an appeal is considered a right of the people and a tool to seek redressal if a
party feels it has been wronged by the decision of the Court. An appeal is always preferred in
a higher court of law. In case an appeal fails, a second appeal can be filed. An appeal is
always filed by one of the concerned parties.

Features of Judicial Review

Power of judicial review can be exercised by both the Supreme Court and high courts:
Under Article 22 6 a person can approach the high court for violation of any fundamental
right or for any legal right. Also, under Article 32 a person can move to the Supreme Court
for any violation of a fundamental right or for a question of law. But the final power to
interpret the constitution lies with the apex court i.e Supreme Court. The Supreme Court is
the highest court of the land and its decisions are binding all over the country.

Judicial Review of both state and central laws:

Laws made by centre and state both are the subject to the judicial review. All the laws, order,
bye-laws, ordinance and constitutional amendments and all other notifications are subject to
judicial review which are included in Article 13(3) of the constitution of India.

Judicial review is not automatically applied:

The concept of judicial review needs to be attracted and applied. The Supreme Court cannot
itself apply for judicial review. It can be used only when a question of law or rule is
challenged before the Hon’ble court.

Judicial review is not suo motu

The Supreme Court or the high court for that matter do not use their authority to conduct a
judicial review by a suo motu action. However, such power is utilised when there is a
question of law that comes before the courts or during the court proceedings when any such
incident occurs or such conditions arise as to where the law is in question.

Principle of Procedure established by law:

Judicial Review is governed by the principle of “Procedure established by law” as given in
Article 21 of the Indian Constitution. The law has to pass the test of constitutionality if it
qualifies it can be made a law. On the contrary, the court can declare it null and void.

Judicial review can be done by whom?

Judicial review is interpreted as the doctrine under which executive and legislative actions are
examined by the judiciary. In India, even though we have the principle of separation of
powers for the different organs of the government, i.e., the executive, the legislative, and the
judiciary, the judiciary is entrusted with the authority to review the actions of the other two
organs.
In India, judicial review can be done by the High Courts as well as the Supreme Court. The
powers of judicial review are delegated to the courts under Article 226 and Article 227 of the
Constitution of India, as far as the High Courts are concerned, and in Article 32 and Article
136 with regard to the Supreme Court.

Functions of judicial review

Judicial review has two vital functions, namely:
1. Of making the actions of the government legitimate, and
2. To secure the Constitution from any undue encroachment by the government.

Limits on exercise of Judicial review

General limitations

Restricts the functioning of the government

The scope of judicial review is limited, both in terms of availability and function. Here, the
role of the court is to perform a review on the method through which an outcome was
deduced so as to determine whether such a finding is defective and must be rescinded, instead
of re-making the ruling in question or investigating the merits of the decision deduced. In
short, it is only allowable to the degree of determining whether the method of reaching the
inference was properly adhered to or not. It is not a decision in itself.
Violation of limits set by the Constitution
When it overrides any previously established law, it violates the limits of power put forth by
the Constitution. Here, the legislative powers that are exercised by the Constitution are said to
be erred.
Concept of separation of power not observed
The concept of separation of functions is followed rather than that of separation of power.
Additionally, the concept of separation of powers is not strictly adhered to. Although, a
system of checks and balances has been introduced, thus entrusting the judiciary with the
power to overturn any unconstitutional laws passed by the legislature.
Sets a precedent
The judicial opinions of a judge once taken in a particular case would serve as the basis for
deciding another case, thus acting as a precedent.
Selfish motives and influences
Judicial review can prove to be detrimental to the local public as there are chances of the
judgment being influenced by personal or selfish motives. This can lead to causing damage to
the public at large.

Frequent interference by the court has a negative effect on the local public
Repeated court interventions can undermine the confidence of people in the integrity, quality,
and efficiency of the government.
Lack of the capability to overrule administrative decisions
The court lacks the ability to repudiate the decisions taken by the administrative authorities.
If a review of an administrative ruling is authorized, the decision of the court would be
substituted, thus regarded to be a shortcoming due to inadequate knowledge.
Judicial activism and judicial self-restraint
There is quite a discourse on whether there should be a line drawn between judicial activism
and judicial self-restraint.
Doctrine of Strict Necessity
The doctrine of strict necessity states that the court must rule on constitutional matters only if
strict necessity requires it to do so. Thus, constitutional questions will not be determined in a
wider manner than required.
Implied limitations on the exercise of the power of judicial review
Locus Standi
Considering the principle of ‘locus standi’, a petition under Article 32 of the Constitution can
only be filed by the individual(s) whose fundamental or legal rights have been violated,
however, relaxation has been given by the courts via the formation of the concept of Public
Interest Litigation (PIL). Thus, if a decision which is contemplated to be patently bad is
challenged, the courts ought not to protest in evaluating the act on the grounds of locus
standi.
Res Judicata
As per the principle of res judicata, there should be finality to binding verdicts of the court of
competent jurisdiction and no party should be irked with the same litigation a second time.
Thus, if a petition has been filed in a court that gets dismissed, the same petition cannot be
filed in the same court on the exact foundation.
Unreasonable delay
The remedies granted under Articles 32 and 226 of the Constitution must be sought within a
reasonable time unless the reason for the delay is persuasive and acceptable. Due to this
limitation, the court will decline to exercise its jurisdiction in matters of parties who have
come to seek justice after a reasonable delay and are guilty of laches.
Regardless, a point must be noted that there is no fixed period for laches, thus, every case will
be decided based on the facts and contentions of the party(ies) to the case.

Exhaustion of alternative remedies

This limitation is not strictly imposed, however, as stated in the case of Y. Theclamma vs.
UOI (1987), the Supreme Court dictates that all the possible remedies must be sought by the
petitioners before resorting to Article 32. The reason behind such a limitation is that the writ
jurisdiction is not meant to dodge statutory procedures but only be used as an extraordinary
remedy in situations where all other remedies are ill-suited.

Marbury v Madison 5 U.S

The U.S. Supreme Court case Marbury v. Madison (1803) established the principle of judicial
review—the power of the federal courts to declare legislative and executive acts
unconstitutional. The unanimous opinion was written by Chief Justice John Marshall.
Council of Civil Sservices Union v. Minister for Civil Services
Facts
In the 1980’s, with the United Kingdom under the Conservative government led by Margaret
Thatcher, it was ruled that any and all employees of the Government Communications
Headquarters (GCHQ) were prohibited from joining any trade union. This decision was
justified based on the potential threat to national security, and enforced using an Order of
Council which is an exercise of the Royal Prerogative Power.

Issues
By limiting access, or completely refusing access to trade unions to employees, certain
individuals affected were not able to rely on certain employment legislative provisions or be
represented by a Union.
Decision/Outcome
Appeal dismissed; while the decision was justiciable, it was reasonable to prevent British
Intelligence employees from joining trade unions in the interests of national security
Tata Cellular v. Union of India
In Tata Cellular v Union of India, Government of India issued invitations to all the mobile
operators to establish networks in the four metro cities. Evaluation Committee which was
supposed to evaluate the tenders under Telecom Regulatory Authority of India (TRAI), had
Director General of Telecommunication in it. His son’s tender was selected at the end of the
evaluation process. In this case, Supreme Court rejected the violation of ‘Nemo judex in
causa sua’ as without Director General of Communication no tender can be selected and
evaluation is not possible. There was no choice of substitution and hence the decision was not
liable to be struck down. In this case Supreme Court applied the Doctrine of Necessity
liberally.
Also, it was observed that the principles of judicial review would apply to the exercise of
contractual powers by Government bodies in order to prevent arbitrariness or favouritism[1].
The Government must have freedom of contract. In other words, a fair play in the joints is a
necessary concomitant for an administrative body functioning in an administrative sphere or
quasi-administrative sphere. However, the decision must not only be tested by the application
of Wednesbury principle of reasonableness (including its other facts pointed out above) but
must be free from arbitrariness not affected by bias or actuated by mala fides.

3.2 & 3.3 Abuse of discretion and Judicial review , grounds of judicial
review.

Discretion in layman's language means choosing from amongst the various available or
provided alternatives without reference to any predetermined criterion, no matter how
fanciful that choice may be. Discretion when qualified by the word, 'administrative has
somewhat different overtones. Discretion in this sense means choosing from amongst the
various available alternatives but with reference to the rules of reason and justice and not
according to personal whims. Such exercise is not to be arbitrary, vague and fanciful but legal
and reasonable.
According to K.C. Davis, "Discretion implies power to make a choice between alternative
courses of action".
"Discretion" means when it is said that something is to be done within the discretion of the
authorities that something is to be done according to the rules of reason and justice, not
according to private opinion according to law and not humour. It is not to be arbitrary, vague
and fanciful, but legal and regular. And it must be exercised within the limit, in which an
honest man competent to the discharge of his office ought to confme himself.
Need of Discretion and its Relationship with Rule of Law
In any intensive form of government, the government cannot function without the exercise of
some discretion by the officials because it is impossible to lay down a rule for every
conceivable eventuality in the complex art of modern government. In modern times, apart
from routine governmental functions relating to welfare of the people under various statutes,
rules, regulations etc., the steady multiplications of all kinds, as well as the increasing
complexity of carrying out such modern government's functions of vast public utilities, viz.,
industries, hospitals, educational institutions and many other social services, or the
administration of government contracts, licences and permits, loans to business, land
acquisition and so on, led to the development of new type of public institutions and
accordingly the range of law enforcement also increased tremendously covering the whole
public and private sector S through the government administration.' But it is equally true that
absolute discretion gives birth to a ruthless master. It is more destructive of freedom than any
of the other inventions. Therefore, a reasonable exercise of discretion is need of the hour.
This is because rule of law does not permit unlimited exercise of administrative discretion in
all governmental policy matters or actions. The equality, liberty, property and reputation of
citizens should not be affected by arbitrary, unreasonable, unfair or wide discretionary
powers conferred by law on public officials. Rule of law requires that the degree of discretion
should be restricted by law and therefore, judiciary has evolved certain principles for
controlling the exercise of discretionary power. Judicial review of administrative action
ensure restraint of the misuse or abuse of discretion so conferred.

Judicial review of administrative discretion: Indian Perspective

In India, Judicial review of administrative discretion is exercised in the following two ways:
(i) control at the stage of delegation of discretion.
(ii) control at the stage of the exercise of discretion.
Some Instances of Administrative Discretion:
(a) Administrative Discretion and Article 14 of the Constitution.
Article 14 of the Constitution guarantees equality before the law and equal protection of laws.
If a statute does not disclose a definite policy or the objective, subject to which the
administrative power is to be exercised, then the statute may be held to be discriminatory.
(b) Administrative Discretion and Article 19 of the Constitution.
Article 19(1)(a) to (g) of the Constitution provides to all citizens the fundamental right to
freedom of speech and expression, to assemble peaceably, to form association, move freely
throughout the territory of India reside and settle in any part of India and to practice and carry
on any trade occupation, business or profession. However, these are not absolute; Articles
19(2) to 19(6) lay down various grounds on which Legislature can impose reasonable
restrictions. Some of the grounds are-restrictions in the interest of security of state, public
order, friendly relationship with foreign state, decency and morality, defamation, contempt of
court etc. Thus, all individual rights are subject to some limitations, however, the restrictions
imposed upon the exercise of fundamental freedoms are subject to judicial review.
(II) Control at the Stage of Exercise of Discretion
The Courts in India have developed various formulations to control the exercise of
administrative discretion which can be grouped under three broad heads:
(a) That the authority has not exercised its discretion properly-"abuse of discretion".
(b) That the authority is deemed not to have exercised its discretion at all-"non application of
mind".
(c) That the authority has not followed "the principles of natural Justice."

GROUNDS OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

(A)ABUSE/MISUSE OF DISCRETION BY AUTHORITIES

1) malafide
'Malafide', a Latin expression is the opposite of bona fide. It connote two meaning: In popular
sense, it means dishonesty, fraud or ill will but, legally it has very broad connotation. Legally
'Malafide' a means "want of good faith" or properly called as dishonest intention or corrupt
motive, animosity, vengeance. Mala fide exercise of power means that the power is exercised
for purposes foreign for which it is, in law, intended. In relation to the exercise of Statutory
power mala fide may be said to comprise dishonesty (or fraud) or malice. A power is
exercised fraudulently if its repository intends to achieve an object other than that for which
be believed the power to have been conferred. When the exercise of discretion is tainted with
mala fide the decision is bad and it is liable to be set aside. The person alleging mala fide
must prove it, and proving it against the mighty administration it is very difficult task.
Even though it is difficult to determine whether or not the authority has exceeded its powers
in a particular case because of the broad terms in which the statute in question may have
conferred power on it. The administrative action may, nevertheless, be declared bad, if the
motivation behind the act is not honest. It is not only the power, but the duty of the Courts to
see that all authorities exercise their powers properly, lawfully and in good faith. If the power
exercised is not bona fide, the exercise of power is bad and action is illegal.
(ii) Irrelevant Consideration/Improper Purpose Power Exercised for an Improper
Purpose
Generally the Statute which confers discretionary power to the administrative authorities will
also enumerate relevant facts to be considered by them in arriving at the decision. Even in the
absence of any such factors in the Statute an authority is expected to take relevant factors into
consideration in exercising the discretionary power. By the same token the authority is not
expected to take irrelevant factors into consideration.
A discretionary power must be exercised on relevant and not on irrelevant or extraneous
considerations, which means that power must be exercised for the purpose for which it is
granted by taking into account the considerations mentioned in the Statute. If the
administrative authority takes into account, wholly irrelevant or extraneous circumstances,
events or matters, then the administrative action is ultra vires and will be quashed (also called
"colourable exercise of power) as unreasonable. The exercise of discretionary power should
not be influenced by considerations unacceptable by law. According to Peter Cane-"it is error
either to take account of irrelevant considerations or ignore relevant ones".
(iii) Colourable Exercise of Powers
The courts have used this doctrine to denounce an abuse of discretion which speaks that
under the 'colour' or 'guise' or power conferred for one purpose, the authorities seek to
achieve something else which is not authorised to do so under the law in question.
(iv) Leaving Out/Ignoring Relevant Consideration
While considering the discretionary power the administration authority is expected to take all
the relevant factors in to consideration.
The administrative authority cannot take into account irrelevant or extraneous considerations.
Similarly, if the authority fails to take into account relevant consideration, even then the
exercise of power would be bad. But it is very difficult to prove that certain relevant factor
have not being taken into account.
Unless detailed reasons are given from which it can be inferred that the authority took action
after ignoring material considerations it is hard to have the action quashed on this basis.
(v) Unreasonableness/Arbitrariness/discrimination
A discretionary power conferred on an administrative authority mut be exercised by that
authority reasonably. If the power is exercised nreasonably, there is an abuse of power and
the action of the authority will be ultra vires.
The term 'unreasonable' is ambiguous and may include many thing e.g. irrelevant or
extraneous considerations, malafide exercise of power etc. Even hough the authority has
acted according to law, i.e. it has not acted on irrelevant grounds or for improper purposes,
etc. yet it would be said to aced unreasonably, if it has given more weight to some factors as
compared to other factors. Due to this, Wade and Forsyth observed that "unreasonableness"
in its classic formulation covers " multitude of sins".
The concept of unreasonableness is similar to the concept of Arbitrariness. An action is
arbitrary when no reasonable person could have acted in that manner. Arbitrariness also
results in discrimination. When a decision is taken without applying the mind or under
somebody's dictation or on irrelevant consideration or out of malice it is arbitrary. An action
is arbitrary when the consideration on which is based is not only irrelevant but also has no
nexus with the objective for which discretion has been the given. An action which is not
reasoned can be arbitrary.
In the words of Wade and Forsyth, the principle of reasonableness has become one of the
most important doctrine of administrative law. Its to contribution to administrative law is
equal to that of the principles of natural justice on the procedural side.
vi) Doctrine of Proportionality
 The doctrine of proportionality is emerging as a new ground of challenge for judicial
review of administrative discretion.
 It is a recognised general principle of law evolved with a purpose to maintain a proper
balance between any adverse effects which its decision may have on the rights,
liberties or interests of persons and the purpose it pursues.
 The doctrine of proportionally endavours to confine the exercise of discretionary
powers of administrative authority to mean which are proportioned to the object to be
pursued.
 The courts while invoking the doctrine of proportionality may quash the exercise of
powers in which there is not a responsible relationship between the objective which is
sought to be achieved and the means used to that end.

Tests
'Proportionality' involves a Balancing test which keeps a check on the excessive or
arbitrary punishments or encroachment upon the rights and Necessity test which takes
into account other less restrictive alternates.

The principle of proportionality evaluates two aspects of a decision:

o Whether the relative merits of differing objectives or interests were

appropriately weighed or fairly balanced?
o Whether the measure in question was in the circumstances excessively
restrictive or inflicted an unnecessary burden on affected persons?
vii) Doctrine of Promissory Estoppel.
According to this doctrine, where one party has by his words or conduct made to the other a
clear promise which is intended to create legal relations or 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 in 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.
(B) NON APPLICATION OF MIND
When a discretionary power is conferred on an authority, the said authority must exercise that
power after applying its mind to the fact and circumstances of the case in hand. Thus, where
the authority abdicates its power e.g. acting under dictation or sub delegates its power, or acts
mechanically without due care, or doesn't consider the case before it, there is a failure to
exercise discretion.
(i) Acting Under Dictation
Sometimes, the authority exercises its discretion under dictation from superior authority and
does not consider the matter itself. Although the authority purports to act itself, yet, in effect
it is not so as it does not take the action in question on its own judgment, as is intended by the
statute.
(ii) Fettering Discretion: Non-exercise of Power on the Basis of Self imposed Rule or
Non-compliance of Procedure
Where the authority concerned in exercise of the discretion does something which it has been
forbidden to do, or does an act which it has been authorised to do by imposing fetters on its
discretion by announcing rules of policy to be applied by it rigidly to all cases coming before
it for decision, its action or decision will be bad. If the authority imposes fetters on its
discretion by adopting fixed rule of policy to be applied in all cases coming before it, then
there is failure to exercise discretion on the part of that authority. What is expected from an
authority, is that it should consider each case on the merits and then decide it by applying his
mind. If a general rule is to be applicable to all cases, then it is preventing itself from
exercising its mind according to the circumstances of case because there is no question of
considering the facts of an individual case at all and exercising discretion by the authority.
(iii) Acting mechanically and without due Care i.e. Non-application of Mind
Where the discretionary powers are vested in the executive, he must apply it within highest
care, diligence, caution and responsibility. He should not act mere mechanically. He should
apply his own mind according to the circumstances. If he performs without due care and non-
application of mind, then he comes under failure to exercise discretionary powers. It is bad in
law.
(c) Violation of the Principle of Natural Justice
Generally, Court insists on a 'fair procedure' requirement in every administrative action.
Requirement of a 'fair procedure' may arise:
(i) as a constitutional mandate: Where fundamental rights of the people are violated.
(ii) as a statutory mandate: If statute lays down any procedure which administrative authority
must follow before taking action, it must be faithfully followed and any violation of the
procedural norms would vitiate on administrative action.
(iii) As an implied requirement where statute is silent about procedure. Where statute is
silent, courts have insisted that administrative authorities must follow the principles of natural
justice which provide fair minimum administrative procedure which every administrative
authority must follow while taking a decision which has civil or evil consequences. The rules
of natural justice' guarantee "fair play in action'.\
The rules of natural justice were originally only two viz.,
(i) Audi alteram partem i.e., the person(s) to be affected by an order of the authority should
be heard before the order is passed; (ii) The rule against bias.

Subsequently, some more rules of natural justice are in the process of development e.g., that
the administrative authority should give reasons for its decisions, particularly when the
decisions affect rights and liabilities of the citizens.
It must, however, be made clear that the rules of natural justice are flexible, and are not a
straitjacket formula. In exceptional cases not only can they be modified but even excluded
altogether. Natural justice is not an unruly horse. If fairness is shown, there can be no
complaint of breach of natural justice.

Irrationality (Wednesbury Test)

A general established principle is that the discretionary power conferred on an administrative
authority should be exercised reasonably. A decision of an administrative authority can be
held to be unreasonable if it is so outrageous in its defiance of logic or prevalent moral
standards that no reasonable person who had applied his mind to the subject could have
arrived at it.
‘Irrationality’ was developed as a ground of judicial review in the Associated Provincial
Picture House v. Wednesbury(1947) case which later came to be known as the ‘Wednesbury
test’. The court laid out three conditions in order to conclude the right to intervene-
1. In arriving at the decision, the defendant took into consideration the factors that ought
not to have been taken into, or
2. The defendant failed to take into consideration the factors that ought to have been
taken into, or
3. The decision was so unreasonable that any reasonable authority would never consider
imposing it.
The court held that it could not intervene to change the decision of the defendant simply
because it disagreed with it.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation

Facts
 W was empowered to grant licences for Sunday entertainment and impose conditions
on these licenses
 A movie theatre was licensed, subject to the condition that no children under 15 were
permitted on Sundays.
Held (Court of Appeal)
Appeal dismissed, the decision was reasonable based on the Wednesbury test laid down in
this case.
The Court observes:
 There may be something so absurd that no sensible person could ever dream that it lay
within the power of authority.
 The fact is that all powers exercised by the public authorities are liable to be misused.
 The courts are, therefore, vigilant to check the misuse of public power which is the
subject matter of judicial review.

Shri Rama Sugar Industries Ltd v. State of Andhra Pradesh

Facts
The appellants applied for exemption from tax payment under section 21(3) of A.P.
Sugarcane (Regulation of Supply and Purchase) Act 1961. Section 21(3) empowered the
administrative authority to exempt from paying tax "any new factory" for a period of three
years or "any new factory which in the opinion of the government" had "substantially
expanded....for a period not exceeding 2 years". The Government granted exemption only to
factories run by co-operative societies. The appellant argued that the government should have
considered the application of factory on its merits and that Government had fettered its
discretion by adopting a policy of granting such exemption only to factories run by co-
operative societies.
Issue: Whether Government had fettered its discretion?
Decision: The Court held that it is open to the Government to adopt a policy not to make a
grant or to make grant only to a certain class and not to a certain other class, though such a
decision must be based on consideration relevant to the subject-matter on hand. The Court
held that a body endowed with a statutory discretion can legitimately adopt general rules or
principal to guide itself in the exercise of its discretion provided that rules are not arbitrary
and consistent with the aims and objective of the Act. In fact, in some cases, this may be
inevitable if the authority is to discharge its functions effectively, as and when the cases to be
dealt with are very large. Therefore, the desirability of laying down general principal of
policy has to be reconciled with the duty of authority not to fetter its discretion (in individual
cases).
Management of Coimbatore District Central Co-operative Bank v Secretary,
Coimbatore District Central Co-operative Bank Employees Association & Anr., 2007
Facts
The facts of the case were that there was an Industrial strike in a factory and conciliation
proceedings were started, and an amicable settlement was made. 134 workmen resumed their
duty, but 53 workmen refused to join their duty back. Because these 53 workmen did not
follow the settlement rules and did not join the duty, their strike was held to be illegal. The
inquiry was initiated against them which they did not cooperate with the inquiry officer. They
did not become part of the conciliation proceedings. They also threatened the other workmen
to join the duty and tries to create hindrance to the other 134 workmen. The management
came with certain punishment, that was no payment of salary during suspension and stoppage
of increment for a period of 1 to 4 year.
Decision
The Supreme Court held that the award passed by the management was just fair and
reasonableness. Their decision over the quantum of punishment is not arbitrary and illegal.
They have applied the principle of natural justice system. The court here is just trying to see
the process, method and the manner in which the decision was taken and also that whether
triple I's test (irrationality, irregularity and Procedural Impropriety) was applied by the
management and followed the established procedure or not. Thought the High Court has
applied the doctrine of proportionality, but the SC rejected to apply it in this case and the
punishment imposed upon the 53 workmen by the management was not harsh so as to
interfere.
Nandlal Khodidas Barot v. Bar Council of Gujarat and Others AIR 1981 SC 477

Facts: Bar Council of Gujarat passed a resolution on 16 November, 1971 referring several
complaints against different advocates including the one against the appellant to the
Disciplinary Committee of the Bar Council The Disciplinary Committee suspended him from
practice for a period of one year. It was appealed before Supreme Court.
Decision: Supreme Court held that in forwarding a case to the Disciplinary Committee, the
Council cannot act mechanically, it must apply its mind to find out whether there is any
reason to believe that any advocate has been guilty of misconduct. Only when the Bar
Council has a reasonable belief that there is a prima facie case of misconduct, a disciplinary
committee is to be entrusted with inquiry against the concerned advocate.
Ranjit Singh v. Union of India AIR 1981 SC 461
Facts: The petitioner, Ranjit Singh had been carrying on the business of manufacturing guns
for a number of years. His quota to manufacture guns was reduced from 30 to 10 guns a
month. The justification given was that the Industrial Policy Resolution of 1956 envisaged a
monopoly of the Central Government for manufacturing arms and ammunitions while
permitting existing manufacturers in the private sector to continue to carry on their business
on a limited scale. This resulted in considerable hardship to the petitioner in view of the
financial liability and the establishment expenses suffered pursuant to installation of the
machinery. The petitioner filed a writ petition under Article 32 of the Constitution praying
restoration of the original quota.
Issue: Was the justification given by the Government has any ratio arbitrary when the basis?
Decision: The Court held the order of Government to be bad. Government had not taken into
account relevant considerations in making the order like, production capacity of the factory,
the quality of produced, economic viability of the unit, administrative policy pertaining
contribution to ac maintenance of law and order Court further held that any curtailment of
quota must necessarily proceed on the basis of reason and relevance. Since Government had
le out these relevant considerations, its action is arbitrary. Accordingly, the writ petition is
allowed and Union of India is directed to reconsider th manufacturing quota fixed in the case
of each petitioner after allowing reasonable period of the respective petitioners to set forth
their case o 3(2) and section the merits, with such supporting written material as they may
choose 1946, the Stat place before it.

State of Bombay v. K.P. Krishnan. 5 AIR 1960 SC 1223

Facts: The Government of Maharashtra refused to refer an industrial dispute with regard to
the payment of bonus for a certain year to a Tribunal for adjudication for the reason that the
"workmen resorted to go slow during the year". After this, respondents filed a petition under
Article 226 of the Constitution in the Bombay High Court praying for the issuance of a writ
of mandamus or direction or order against the State of Maharashtra to refer the dispute for
industrial adjudication under section 10(1) and section 12(5) of the Industrial Disputes Act,
1947. The High Court directed the Government to refer the dispute to Tribunal. It was
challenged.
Issue: Whether the order passed by the appellant refusing to refer the dispute for adjudication
under section 12(5) of the Industrial Disputes Act, 1947 could be sustained?
Decision: The Court held that the reason given by the Government was extraneous and not
germane to the dispute. The Government had acted in a punitive spirit and this was contrary
to the objective of the statute i.e. to investigate and settle disputes. A claim for bonus is based
on the consideration that by their contribution to the profits of the employer they are entitled
to claim a share in the said profits, and so any punitive actions taken by Government by
refusing to refer for adjudication an industrial dispute for bonus is wholly inconsistent with
the object of Act.
G. Sadanandan v. State of Kerala (AIR 1966 SC 1925)
Facts: The petitioner, G. Sadanandan, a businessman carries wholesale business in Kerosene
Oil, was arrested on 20th October, 1965 by an order made under Rule 30(1)(b) of the Defence
of India Rules, 1962, to prevent the petitioner from acting in a manner prejudicial to the
maintenance of supplies and services essential to the life of the community. The petitioner
challenged his detention by filing a petition under Article 32 on the ground that it is malafide,
and has been passed as a result of the malicious and false reports of the Deputy
Superintendent of Police (Civil Supplies Cell). The whole object of the Deputy
Superintendent of Police in preparing false reports is to eliminate the petitioner from the field
of wholesale business in Kerosene Oil so that his relatives may benefit and obtain the
dealership.
Issue: Is there malafide exercise of power?
Decision: The Supreme Court after considering all the material and relevant facts like Deputy
Superintendent of Police (Civil Supplies Cell) not filing an affidavit to controvert the
allegations made against him, and counter-affidavit filed on behalf of the Government by
Home Secretary was very weak, declared the order of detention to be "clearly and plainly
malafide". The order of detention was quashed with a strong reminder to the administration
that it should be more careful in exercising its powers.
Express Newspapers (P) Ltd. v. Union of India [AIR 1986 SC 872]
Facts: By an agreement of lease the petitioner was allotted certain plots for construction of
its press building by the Government of India. The Express Newspapers then constructed its
building. The Lt. Governor of Delhi alleged that the new Express building was constructed in
contravention of municipal corporation laws and served a notice for re-entry and for its
demolition. But the construction of new building was in conformity with the lease deed and
with the express sanction of the lessor i.e. the Union of India.
Issue: Is there a malafide exercise of power?
Decision: Supreme Court held that the notice of re-entry and of threatened demolition of the
Appellant's office buildings was malafide and politically motivated by the party in power
against the Express Group of Newspaper in general.
The Supreme Court further observed in the instant case on the allegation of malafide as
follows: where the malafides are alleged, it is necessary that the person against whom such
allegation is made should come forward with an answer refuting such allegations. For
otherwise, such allegations remain unrebutted and the Court would in such case be
constrained to accept the allegations so remaining unrebutted and unanswered on the test of
probability.
The Court thus held that, on the facts and circumstances of the instant case, the impugned
notice was actuated with an ulterior and extraneous purpose and thus were wholly malafide
and politically motivated.
Om Kumar & Others v. Union of India (AIR 2000 SC 3689) (In this case the Supreme
Court explained the meaning of the doctrine of proportionality.)
Facts: By an order, the Supreme Court requested Justice O. Chinnappa Reddy to investigate
into the conduct of the officials of the DDA including its ex-officio Chairman at the relevant
time, in handing over the possession of the suit land in favour of M/s Skipper Construction
Pvt. Ltd. before receiving the auction amount in full. The learned Judge was also requested to
"look into the legality and propriety of the order dated 4.10.98 passed by the then ex-officio
Chairman of the DDA and the directions given by the Central Government under Section 41
of the Delhi Development Act.
The Court accepted the Report and passed an order directing the Department of Personnel to
initiate disciplinary proceedings against five officers on 27.8.97, the Department of Personnel
imposed a 'major' penalty on Sri Virendra Nath and a 'minor' penalty of 'censure' on Sri Om
Kumar. The Ministry of Home Affairs imposed 'major' penalties on Sri K.S. Baidwan and Sri
R.S. Sethi on 27.8.97.
Thereafter, the Court felt that prima facie the punishment imposed on these officers were not
proportionate to the gravity of misconduct and that The punishments needed to be upgraded.
An order was, therefore, passed to e-open the punishments imposed and to refer them for
reconsideration by the Vigilance Commissioner.
Issue: The applicability of the doctrine of proportionality to this case.
Decision: The Supreme Court first explained the meaning of the proportionality principle
Thus, under this principle the Court will see that the Legislature and Administrative
Authority maintain a proper balance between the adverse effects which the legislation or the
administrative order may have on the rights, liberties or interests of persons keeping in mind
the purpose which they were intended to serve. The Legislature and the Administrative
Authority are however, given an area of discretion or a range of choices but as to whether the
choice made infringes the rights excessively or not, is for the Court to see; that is what is
meant by proportionality.
Court further observed that since the adoption of Constitution in 1950, the principle of
'proportionality' has been applied vigorously to legislative (and administrative action) in
India. Administrative action in India affecting fundamental freedoms has always been tested
on the anvil of 'proportionality' in the last fifty years even though it has not been expressly
stated that the principle that is applied is the 'proportionality' principle.
R v. Secretary of State for the Home Department, Ex Parte Daly [2001] UKHL 26
Facts: The Home Secretary introduced a new policy governing the searching of cells
occupied by convicted and remand prisoners in closed prisons in England and Wales. The
policy was expressed in paragraphs 17.72 to 17.74 of Security Manual as an instruction to
Prison Governors. Mr. Daly a long term prisoner challenges the legality of the policy. He
submits that section 47(1) of the Prison Act, 1953 which empowers the Secretary of State to
make rules for the regulation of prisons and for the discipline and control of prisoners, does
not authorize the laying down and implementation of such a policy requirement that a
prisoner may not be present when his legally privileged correspondence is examined by
prison officers. He contends that a blanket policy of requiring the absence of prisoners when
their legally privileged correspondence is examined infringes a basic right recognised both at
common law and under the European Convention for the Protection of Human Rights and
Fundamental Freedoms and that the general terms of section 47 authorise no such
infringement either expressly or impliedly.
Issue: Whether the policy infringes Mr. Daly's common law right to maintain the
confidentiality of his privileged legal correspondence?
Decision: The Court held that the policy infringes Mr. Daly's common law right to legal
professional privilege. Court observed that the prison population included a core of
dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for
their own advantage E any concession granted to them. Any search policy must accommodate
this inescapable fact. Any prisoner who attempts to intimidate or disrupt a search of his cell,
or whose past conduct shows that he is likely to do so, be excluded even while his privileged
correspondence is examined so as to ensure the efficacy of the search. The Court further held
that section 47(1) of the 1952 Act does not authorize such excessive intrusion, and the Home
Secretary accordingly had no power to lay down or implement the policy in its present form.
So paragraphs 17.72 to 17.74 of the Security Manual is unlawful and void in so far as they
provide that prisoners must always be present when privileged legal correspondence held by
them in their cells s examined by prison officers.
3.4 Types of writs
Five types of writs are available for judicial review of administrative actions given
under Article 32 and Article 226 of the Constitution of India.
Habeas Corpus
It means “have the body”. This writ is issued as an order calling upon the person who has
detained another person to produce the detainee before the court of law. If the court finds out
that the detention has been illegal or without legal justification, it will order for the immediate
release of the detainee. The main objective of this writ is not to punish the detainer but to
release the detainee from wrongful detention.
Mandamus
It means ‘to command the public authority’ to perform its duty. It is a command given by the
higher courts (High Courts and Supreme Court) to the Government, Inferior courts, tribunals,
corporations, authorities or any other person to do any act or refrain from doing an illegal act.
The purpose of this writ is to compel the performance of public duties and to keep control
over the activities of the administration.
Quo Warranto
The word ‘quo warranto’ means by what authority. Such writ is issued against a person who
usurps a public office. The court directs the concerned person to show by what authority he
holds that office. The unauthorized or illegal usurper would be removed by judicial order and
the right person belonging to it would be entitled to it.
Prohibition
Prohibition is issued by a superior court to an inferior court or tribunal or body exercising
judicial or quasi-judicial functions to prevent them from exceeding their jurisdiction. It is
based upon the maxim ‘Prevention is better than cure’.
Certiorari
This writ is issued by the Superior Courts (High Courts and the Supreme Court) to the
inferior court or tribunal or body which may exercise judicial or quasi-judicial functions, for
the correction of jurisdiction or error of law committed by them. If any order passed by them
is illegal, then the Superior Court may quash or demolish it. Grounds of this writ are (a)
excess or failure to exercise the jurisdiction (b) violation of the principles of natural justice
(c) authority has failed to correct an error which has been apparent on the face of the record.

Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477).

Facts: The State Transport Authority Madras invited applications for the grant of two stage
carriage permits to run as an express service on the route Madras to Chidambaram. 107
applications were received which were examined by the Authority. Later on the Authority
found that the Provincial Transport (P) Ltd., Madras was the most suitable amongst the
applicants and granted one permit to it. As it found no other applicant suitable, it refused to
grant the second permit to any of them. The appeals were filed before the Tribunal and one of
the appellants Syed Yakub was granted the second permit. The order was challenged before
the High Court at Madras through a writ petition. The Single Judge of High Court who heard
the petition held that the Tribunal in granting second permit had overlooked material
considerations and allowed considerations not germane to the questions which vitiated its
order. This order was challenged by applicant before a Division Bench of the same High
Court, which confirmed the order of learned Single Judge. It is against this order that the
appellant has come before the Apex Court by special leave.
Issue: The question which was to be decided was the limits of jurisdiction of the High Court
in issuing a writ of Certiorari while dealing with orders passed by the appropriate authority.
Observation and Decision: The Supreme Court held that the jurisdiction of the High Court
to issue a writ of Certiorari is a supervisory jurisdiction and the Court exercising it is not
entitled to act as an appellate Court. The Imitation necessarily means that finding of facts
reached by the Tribunal as a result of appreciation of evidence, cannot be reopened or
questioned n writ An error of law which is apparent on the face of the record can be corrected
by a writ, but not an error of fact, however grave Certiorari can be issued if it is shown than
in arriving at such a finding, may appear to be. With regard to finding of fact by a Tribunal, a
writ of Tribunal had erroneously refused to admit admissible and material idence or had
erroneously admitted an inadmissible evidence, which has influenced the impugned finding.
Similarly, if a finding of fact is based on 'no evidence', that would be regarded as an error of
law which can be corrected by Certiorari.
Surya Dev Rai v. Ram Chander RaiQ. 3 (AIR 2003 SC 3044)
Facts: What is the impact of the amendment in Section 115 of the C.P.C. brought in by Act
46 of 1999 w.e.f. 01.07.2002, on the power and jurisdiction of the High Court to entertain
petitions seeking a writ of certiorari under Article 226 of the Constitution or invoking the
power of superintendence under Article 227 of the Constitution as against similar orders, acts
or proceedings of the courts subordinate to the High Courts, against which earlier the remedy
of filing civil revision under Section 115 of the C.P.C. was available to the person aggrieved.
Issue: Is an aggrieved person completely deprived of the remedy of judical review, if he has
lost at the hands of the original court and the appellate court though a case of gross failure of
justice having been occasioned?
Observation and Decision: The Supreme Court observed as follows:
(1) The curtailment of revisional jurisdiction of the High Court does not take away the
Constitutional jurisdiction of the High Court to issue a writ of certiorari against a civil Court
nor has the power of superintendence conferred on the High Court under Article 227 of the
Constitution been taken away or whittled down. The power exists, unhindered by the
amendments in Section 115 CPC, and is available to be exercised subject to rules of self-
discipline and practice which are well settled.
(2) There is broad general difference between the jurisdiction to issue a writ of certiorari and
to exercise supervising jurisdiction under Article 227.
Anadi Mukta Sadguru Trust v. V.R. Rudani (AIR 1989 SC 1607)
Facts and Issue: In this case, the issue was whether the writ of Mandamus can be issued
against any individual or private body?
Shri Anadi Mukta Sadguru, a public trust, runs a science college at Ahmedabad. The college
initially had temporary affiliation (under Gujarat University Act 1949) which later from June
15, 1973 onwards became permanently affiliated under the said Act. The teachers of
affiliated college were paid in the pay scale recommended by the U.G.C. There arose a
dispute as to the pay scale, between the Teacher Association and the University and the
dispute was arbitrated by the Chancellor and an award was made. The State Government and
University accepted the award and the University issued the directions to the affiliated
colleges to pay their teachers in terms therein but the appellant instead of implementing the
award served the notice on its teachers of termination of the surplus and approached the
University for permission to remove them. The permission being refused, the Trust decided
to close down the College and the affiliation of the College was surrendered and the College
was closed down. The teachers filed the writ petition before the High Court praying for the
following relief. To issue the writ of Mandamus directing the trust to pay them arrears of
salaries, P.F., gratuity and closure compensation legitimately due to them.The Trust
contended that since it is not a statutory body, it is not subject to writ jurisdiction of the High
Court. The High Court rejected this contention and directed the trust to make payments to the
petitioners. The trust approached the Supreme Court.
Decision: The Supreme Court observed that in the present case, there is no plea for specific
performance of the contractual service. The respondent employees are not asking for
Mandamus to put them back into the college. They were claiming only the terminal benefits
and arrears. The issue is whether the Trust can be enforced to pay by a writ of Mandamus?
If the rights are purely of a private character, no Mandamus can be issued. If the management
of the college is a private body with no public duty, Mandamus will not lie. These are the two
exceptions to Mandamus. But if these are absent and the party has no other equally
convenient remedy Mandamus cannot be denied. The appellant trust was managing the
affiliated college to which public money was paid as government aid. Public money paid as
the government aid plays a major role in control, maintenance and working of educational
institutions. The aided institutions like government institutions discharge 'public function' by
imparting education to students. They are subject to rules and regulations of the affiliating
university. Employment in such institutions, therefore, is of public character. There is a legal
right-duty relationship between the staff and the management and thus Mandamus can't be
refused.

3.5 Promissory Estoppel and legitimate expectations

Promissory Estoppel
The principle of estoppel in India is a rule of evidence incorporated in Section 115 of The
Indian Evidence Act, 1872. The section reads as follows:
When one person has, by his declaration, act or omission, intentionally caused or permitted
another person to believe such a thing to be true and to act upon such belief, neither he nor
his representative shall be allowed, in any suit or proceeding between himself and such
person or his representative, to deny the truth of that thing.
The doctrine of promissory estoppel is an equitable doctrine. Like all equitable remedies, it is
discretionary, in contrast to the common law absolute right like right to damages for breach
of contract. The doctrine has been variously called 'promissory estoppel', 'equitable estoppel',
'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and
though commonly named 'promissory estoppel', it is neither in the realm of contract nor in the
realm of estoppel.

The true principle of promissory estoppel is where one party has by his words or conduct
made to the other a clear and unequivocal promise which is intended to create legal relations
or effect 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 in 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. It is not necessary, in order to attract the applicability of the doctrine of
promissory estoppel that the promisee acting in reliance of the promise, should suffer any
detriment. The only thing necessary is that the promisee should have altered his position in
reliance of the promise.
Evolution of the doctrine of promissory estoppel
Promissory estoppel is a relatively new development. In order to trace the evolution of the
doctrine in England, we need to refer to some of the English decisions. The early cases did
not speak of this doctrine as estoppel. They spoke of it as 'raising equity'. Lord Cairns stated
the doctrine in its earliest form in the following words in Hughes v. Metropolitan Railway
Company, [1877] 2 A.C. 43
In India, there are two stages in the evolution of the application of this doctrine; pre-Anglo
Afghan case and post- Anglo Afghan case. Prior to this case, the position was that promissory
estoppel did not apply against the Government. But the position altered with this case. In
Union of India v. Anglo Afghan Agencies , the Government of India announced certain
concessions with regard to the import of certain raw materials in order to encourage export of
woolen garments to Afghanistan. Subsequently, only partial concessions and not full
concessions were extended as announced. The Supreme Court held that the Government was
estopped by its promise. Thereafter the courts have applied the doctrine of promissory
estoppel even against the Government.
Essential characteristics to make promise binding on Government
The following are the essentials to make any promise binding on the Government:
1. The State makes the promise within the ambit of law.
2. There is an intention to enter into a legal relationship.
3. The other party must do an act in furtherance of that promise or is forbidden to do
anything.

No estoppel against statute and law

The doctrine of estoppel does not apply to statutes. In other words, a person who makes a
statement as to the existence of the provisions of a statute is not estopped, subsequently, from
contending that the statutory provision is different from what he has previously stated. A
person may not represent the true status of a statute or law, but the other person who relies on
such a representation is at liberty to find out the position of law on the matter and as the
maxim says, ignorance of law is no excuse. So a person can not take recourse to the defence
of estoppel to plead that a false representation has been made regarding the provisions of a
statute or law. The principles of estoppel can not override the provisions of a statute. Where a
statute imposes a duty by positive action, estoppel can not prevent it. The doctrine cannot
also be invoked to prevent the legislative and executive organs of the Government from
performing their duties.
Significance of the doctrine of promissory estoppel in India
Today we are living in a world where a promise of Government to any citizen or non citizen
matters a lot especially if it is done in a contractual or business transaction. When a person
relies on the Government's promise and invests hard earned money and the Government
afterwards does not abide by its promise then it creates a position where the person's
investment is in danger and he becomes helpless and paralyzed. The judiciary in India has
played a very significant role in making the State responsible and accountable and made it
abide by its promise.

LEGITIMATE EXPECTATION
MEANING
Legitimate Expectation means that a person may have a reasonable expectation of being
treated in a certain way by administrative authorities owing to some consistent practice in the
past or an express promise made by the concerned authority. According to this doctrine, a
public authority can be made accountable in lieu of a legitimate expectation. Thus, the
doctrine of Legitimate Expectation pertains to the relationship between an individual and a
public authority.
"What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a
benefit, relief or remedy that may ordinarily flow from a promise or established practice. The
term 'established practice' refers to a regular, consistent predictable and certain conduct,
process or activity of the decision-making authority. The expectation should be legitimate,
that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or
random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation.
Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for judicial
review of administrative action. It is procedural in character based on the requirement of a
higher degree of fairness in administrative action, as a consequence of the promise made, or
practice established. In short, a person can be said to have a 'legitimate expectation' of a
particular treatment, if any representation or promise is made by an authority, either expressly
or impliedly, or if the regular and consistent past practice of the authority gives room for such
expectation in the normal course."1
Therefore, it can be said that this doctrine is a form of a check on the administrative
authority. When a representation has been made, the doctrine of legitimate expectation
imposes, in essence, a duty on public authority to act fairly by taking into consideration all
relevant factors relating to such legitimate expectation.2 It also adds a duty on the public
authority not to act in a way to defeat the legitimate expectation without having some reason
of public policy to justify its doing so.3
WHO CAN INVOKE THE PRINCIPLE OF LEGITIMATE EXPECTATION?
The doctrine of legitimate expectation, based on established practice, can be invoked only by
someone who has dealings or transactions or negotiations with an authority, on which such
established practice has a bearing, or by someone who has a recognized legal relationship
with the authority.4 A total stranger unconnected with the authority or a person who had no
previous dealings with the authority and who has not entered into any transaction or
negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely
on the ground that the authority has a general obligation to act fairly.5
LEGITIMATE EXPECTATION MAY ARISE:
a. if there is an express promise given by a public authority; or
b. because of the existence of a regular practice which the claimant can reasonably
expect to continue;
c. such an expectation must be reasonable.6
Every legitimate expectation is a relevant factor requiring due consideration in a fair
decision-making process. Whether the expectation of the claimant is reasonable or legitimate
in the context is a question of fact in each case.7 Whenever the question arises, it is to be
determined not according to the claimant's perception but in the larger public interest wherein
other more important considerations may outweigh what would otherwise have been the
legitimate expectation of the claimant.8 A bona fide decision of the public authority reached
in this manner would satisfy the requirement of non-arbitrariness and withstand judicial
scrutiny.9
EXPECTATION DOES NOT MEAN
The expectation cannot be the same as anticipation. It is different from a wish, a desire or a
hope nor does it amount to a claim or demand on the ground of a right. However earnest and
sincere a wish, a desire or a hope may be and however confidently one may look to them to
be fulfilled, they by themselves cannot amount to an assert-able expectation and a mere
disappointment does not attract legal consequences. A pious hope even leading to a moral
obligation cannot amount to a legitimate expectation.10
Therefore, legitimacy of an expectation can only be inferred if it is based on the sanction of
law or custom or an established procedure followed in regular and natural system.
JUDICIAL PRONOUNCEMENTS
This doctrine first found its mention in the case of State of Kerala vs. Madhavan Pillai. 11 In
this case the government had issued a sanction to the respondents to open a new aided school
and to upgrade the existing ones. However, after 15 days, a direction was issued to keep the
sanction in abeyance. This action was challenged on the ground that the same violated the
principles of natural justice. The Hon'ble Supreme Court held that the sanction order created
legitimate expectations in the respondents which was violated by the second order as the
same was without following the principles of natural justice which is sufficient to vitiate the
administrative order.
This doctrine was applied in another case12 where the government had issued a notification
notifying the areas where slum scheme would be introduced. However, the notification was
subsequently amended, and some areas earlier included were left out. The court held that
when a notification is made rescinding the earlier notifications without hearing the affected
parties, it is clear violation of the principle of natural justice.13 The earlier notification had
raised legitimate expectation in the people living in an area which has been subsequently left
out and hence legitimate expectation cannot be denied without a fair hearing.
In GNCT of Delhi v. Naresh Kumar14, the Delhi High Court summarized the legal position
with regard to legitimate expectation as follows:
 Firstly, mere reasonable or legitimate expectation of a citizen may not by itself be a
distinct enforceable right, but failure to consider and give due weightage to it may
render the decision arbitrary.
 Secondly, legitimate expectation may arise if (a) there is an express promise given by
a public authority; or (b) because of acceptance of a regular practice, a claimant can
reasonably expect it to continue; and (c) such expectation may be reasonable.
 Thirdly, for a legitimate expectation to arise, the decision of administrative authority
must affect the person by depriving him of some benefit or advantage which he had in
the past been permitted, by the decision maker, to enjoy and which he can legitimately
expect to be permitted to continue, until some rational grounds for withdrawing it
have been communicated to him.
 Fourthly, if the authority proposes to defeat a person's legitimate expectation, it
should afford him an opportunity to make a representation in the matter.
 Fifthly, the doctrine of legitimate expectation permits the court to find out if the
change in policy which is the cause for defeating the legitimate expectation, is
irrational or perverse or one which no reasonable person could have made.
In the case of Navjyoti Coop. Group Housing Society & Ors. v. Union of India & Ors.15,
wherein a new criterion of allotment was given by the memorandum impugned therein, prior
to which priority in the matter of allotment to Group Housing Societies had all along been
made with reference to the date of registration. The court held that since prior to the new
guidelines contained in the memorandum of January 20, 1990, the principle of allotment had
always been on the basis of date of registration and not the date of approval of the list of
members, the Group Housing Societies were entitled to legitimate expectation of following
consistent past practice in the matter of allotment, even though they may not have any legal
right in private law to receive such treatment.
TYPES OF LEGITIMATE EXPECTATION
Legitimate expectation that a person may have is broadly classified into two categories,
namely:
1. Procedural Legitimate Expectation- This type of legitimate expectation shows the
existence of some previous right which the claimant claims to possess as a result of an
express promise or action by the public body which has generated the expectation. Where an
individual has procedural protection like right to fair hearing or consultation before any
decision is made affecting that individual then only the court will provide with procedural
protection. Fairness means that the expectation of hearing or other procedural protection be
fulfilled. Where the individual has an expectation of a benefit of substantive nature will be
granted or if it is already granted and is received by the applicant and will be continued, then
fairness dictates that expectation of the benefit should give the claimant entitlement to argue
for its fulfilment. In cases like this the decision making authority just merely has to hear what
the individual expects to be continued and need not give substantive benefit. There have been
many questions raised whether a legitimate expectation can give rise to substantives
protection? In India mostly procedural legitimate expectation would generally mean an
individual has a right to certain procedure and right to fair hearing as per the principles of
natural justice.
2. Substantive Legitimate Expectation- This type of legitimate expectation concerns around
the applicant seeking a picky benefit or product. The claim to such benefit will be founded on
the governmental action which has raised the existence of the relevant expectation. Some
legal academicians believe that this type of legitimate expectation will build trust and reliance
of the citizens in the actions of the government so far as the principle of equality is involved
and also that the government will uphold the rule of law. Mere following of the promised
procedure is enough for protecting the procedural expectation, while substantive expectations
are, protected procedurally, e.g., by giving an opportunity to the person who is going to be
affected to make a representation before such expectation is ruined.