Roll No.

41
SAP ID- 500060945
UNIVERSITY OF PETROLEUM AND ENERGY STUDIES
Mid Semester Examination, October 2020
Open Book – Through Blackboard Learning Management System

Course: Administrative Law Course Code: CLCC3003

Programme: BA LL.B (Hons.) (Energy Law) 2017 Semester:VII

Time: 02 hrs. Max. Marks: 50

Instructions:
As this examination is in open-book format, the students are expected to demonstrate a very high degree of Academic Integrity
and not copy contents from resources referred. Instructors would look for understanding of the concept by the students and any
similarity found from resources online/ offline shall be penalized in terms of deduction of marks and even cancellation of paper
in requisite cases. The online examination committee of the School would also look for similarity of two answer scripts and if
answer scripts of two or more students are found similar, both the answer scripts shall be treated as copied and lead to
cancellation of the paper. In view of the aforesaid points, the students are warned that they should desist from using any unfair means.

Instructions:

S. No. Marks CO
Q1- There are many factors, which are responsible for the expansion of Administrative
10 CO1
Law in modern times. Discuss
Ans.
The beginning of administrative law can be traced back to the ancient times. There is
no codified law and it is a precedent made law. Administrative law emerged as a
subject and also got very much expanded during the modern times. Administrative
law is the law that governs the administrative actions. As per Ivor Jennings- the
Administrative law is the law relating to administration. It determines the
organisation, powers and duties of administrative authorities. It includes law relating
to the rule-making power of the administrative bodies, the quasi-judicial function of
administrative agencies, legal liabilities of public authorities and power of the
ordinary courts to supervise administrative authorities. It governs the executive and
ensures that the executive treats the public fairly.

The growth of Administrative Law:

ENGLAND

In 1885 Albert Venn Dicey, a British jurist, rejected the whole concept of
Administrative law. Hence, the numerous statutory discretionary powers given to the
executives and administrative authorities and control exercised over them were all
disregarded to be able to form a separate branch of law by the legal thinkers. Until
the 20th Century, Administrative law was not accepted as a separate branch of law. It
was only later that the existence of Administrative law came to be recognised.

The Lord Donoughmore Committee, in 1929, recommended for better publication

and control of subordinate legislation. The principle, King can do no wrong, was
abolished and the scope of Administrative law expanded by virtue of the Crown
Proceeding Act in 1947 which allowed initiating civil proceedings against the Crown
as against any private person.

In 1958, Tribunals and Inquiries Act was passed for better control and supervision of
Administrative Decisions. Breen v Amalgamated Engineering Union  [1971] 2 QB
175 was the first case wherein the existence of Administrative law in the United
Kingdom was declared.

UNITED STATES OF AMERICA

In the United States of America, the existence of administrative law and its growth
was ignored until it grew up to become the fourth branch of the State. By then many
legal scholars like Frank Goodnow and Ernst Freund had already authored a few
books on Administrative law.

It was in 1933 that a special committee was appointed to determine how judicial
control over administrative agencies could be exercised. Thereafter, in 1946 The
Administrative Procedure Act was passed which provided for judicial control over
administrative actions.

INDIA:

The term “administrative law” is not a newly coined term. The traces of
administrative law can be seen in almost every legal system of the world. In India,
from Mauryas to Guptas, Guptas to Mughals, from Mughals to the East India
Company : in all the mentioned periods administrative law was one of the most
developing branches of law. Administrative Law can be said to be the most
remarkable development of the 20th Century. The development of administrative law
goes hand-in-hand with the development of the society. Administrative law can more
rightly be said to be the sociology of law and not the philosophy of law.

The three main stages led to the expansion of the meaning of the term Administrative
law-

1. Laissez Faire

2. Dogma of Collectivism

3. Social-Welfare State

The factors which are responsible for the expansion of administrative law in modern
times are as follows:-

1. There is a radical change in the philosophy of the role played by the state.
The negative policy of maintaining law and order and social welfare is
changing. The state has not confined its scope to the traditional and minimum
functions of defense and administration of justice, but has adopted the
positive policy and as a welfare state has undertaken to perform varied
functions.

2. The judicial system was proved to be an inadequate to decide and settle all
types of disputes. It was slow, costly, inept, complex and formalistic. It was
already overburdened and it was not possible to expect speedy disposal of
even very important matters. The important problems could not be solved by
mere literally interpreting the provisions of some statutes, but required
consideration of various other factors and it could not be done by the ordinary
courts of law. Therefore, industrial tribunals and labour courts. Were
established, which possessed the techniques and expertise to handle these
complex problems.

3. The legislative process was also inadequate. It had no time and technique to
deal with all the details. It was impossible for it to lay down detailed rules
and procedures, and even when detailed provisions were laid down by the
legislature, they have found to be defective and inadequate. Therefore, it was
necessary to delegate some powers to the administrative authorities.

4. There is scope for experiments in administrative process. Here unlike, in

legislation, it is not necessary to continue a rule until commencement of the
next session of the legislature. Here a rule can be made, tired for some time
and if it is defective, can be altered or modified within a short period. Thus,
legislation is rigid in character, while the administrative process is flexible.

5. The administrative authorities can avoid technicalities. Administrative law

 represents functional rather than a theoretical and legislative approach. The
traditional judiciary is conservative, rigid and technical. It is impossible for
courts to decide cases without formality and technicality. Administrative
tribunals are not bound by rules of evidence and procedure and they can take
a practical view of the matter to decide complex problems.

6. Administrative authorities can take preventive measures. Unlike regular

courts of law, they do not have to wait for parties to come before them with
disputes. In many cases, these preventive actions may prove to be more
effective and useful than punishing a person after he has committed a breach
of law. As freeman says, ‘Inspection and grading of meat answers the
consumer’s need more adequately than does a right to sue the seller after the
consumer injured”

7. Administrative authorities can take effective steps for the enforcement of the
aforesaid preventive measures e.g. suspension, revocation and cancellation of
license, destruction of contaminated articles etc., which are not generally
available through regular courts of law.

Conclusion:

The Role of administrative law is to limit the powers of the government agencies and
keep a check in on the administrative authorities. it is not always possible to rely
upon some general statutes for rising disputes between the individuals and the public
authorities thus there should be a proper law to govern such disputes, Administrative
law act as the proper law which governs the administrative actions.

2 Write a note on: Dicey’s basic premise on the doctrine of rule of law and its
application under the Indian constitution. 20 CO2

Ans.
RULE OF LAW:

The genesis of the Rule of Law can be dated back to the 13 th century A.D. when
Henry de Bracton, a judge in the reign of Henry III said that the King ought to be
subject to God and law as it is the law which has made him King however, he did not
use the phrase Rule of Law, therefore the credit of originating the concept of Rule of
Law has been bestowed upon Edward Coke who said that the king must be under
God and law and thus vindicated the supremacy of law over the pretensions of the
executives.

But a detailed analysis of the concept of Rule of Law was done by Professor A.V.
Dicey who in his book “Introduction to the Study of the Law of the Constitution”
published in the year 1885 tried developing the concept of Rule of Law. According
to Dicey no man is punishable or can be lawfully made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal manner before the
ordinary Courts of the land. He advocated the fact that law is the supreme and not
much discretionary powers should be vested in the executives as where there is too
much concentration of power there is scope of arbitrariness i.e. misuse of power due
to which the liberty is violated.

Dicey’s theory of Rule of Law consists of three basic principles:

ALBERT VENN DICEY ( a British jurist and constitutional theorist) develop the
concept of rule of law in his book "The Law of constitution (1885). Dicey gave 3
meanings to this doctrine namely- supremacy of the law, equality before law and
predominance of legal spirit.

• Supremacy of the law- This means that no man may be punished without due
process of law for an established breach of the law in the ordinary legal manner in
the ordinary courts of law. It also means that administrative discretion leads to
arbitrariness and thus the same should be avoided. The law is supreme and even the
administration is under the law.

• Equality before law- This means that every citizen must be subject to one and
the same body of law which is the ordinary law of the land administered by the
ordinary courts of the land. Dicey criticized the principle of Droit Administrative as
in the French legal system which provided for separate tribunals for settlement of
disputes between the government and individuals. He saw this as a negation of the
principle of the rule of law as it took away the jurisdiction of the courts and subject
government officials to a law different from that which the general public was
subjected to. Also, it allowed the administration to adjudicate upon matters which
was primarily a function of the judiciary.

• Predominance. Of legal spirit: As per Dicey it is the courts which enforce

rights of individuals while a written constitution merely declares such rights. Thus,
the constitution is not the source but only a consequence of legal rights. It was
emphasized that in order for nights to be secured, enforcement by courts was
required rather than a mere declaration whereby such rights could easily be trampled
upon. He used the example of the various Habeas Corpus Acts which actually went
ahead to talk of the enforcement of rights rather than defining them.

CONCEPT OF RULE OF LAW UNDER INDIAN CONSTITUTION:

In India, the concept of Rule of law can be traced back to the Upanishads.  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.

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.  The Indian Constitution also incorporates the principle of equality before law
and equal protection of laws enumerated by Dicey under Article 14 .

The very basic human right to life and personal liberty has also been enshrined under
Article 21. Article 19(1) (a) of the Indian Constitution guarantees the third principle
of the Rule of law (freedom of speech and Expression). No person can be convicted
of any offence except for violation of a law in force at the time of the commission of
the act charged as an offence is also very well recognized in the Indian
Constitution. The principles of double jeopardy and self-incrimination also found its
rightful place in the Constitution. Articles 14, 19 and 21 are so basic that they are
also called the golden triangle Articles of the Indian Constitution.

The Constitution also ensures an independent an impartial Judiciary to settle disputes

and grievances for violation of fundamental rights by virtue of Articles 32 and 226.
In Union of India v. President, Madras Bar Association  , the Supreme Court held
that “Rule of Law has several facets, one of which is that disputes of citizens will be
decided by Judges who are independent and impartial; and that disputes as to legality
of acts of the Government will be decided by Judges who are independent of the
Executive.” 

Justice R.S. Pathak of the Hon’ble Supreme Court has observed that “It must be
remembered that our entire constitutional system is founded on the rule of law, and
in any system so designed it is impossible to conceive of legitimate power which is
arbitrary in character and travels beyond the bounds of reason.” 

RULE OF LAW IN INDIA:

1. In Keshavnanda Bharti vs State of Kerela, the view was that the rule of law Is
 a basic intent of the Constitution apart from democracy.

2. In Indira Gandhi v Raj Narain, Mathew J, observed: “the rule of law

postulates the persuasiveness of the spirit of law that throughout the whole range of
govt. is the sense of excluding arbitrary official action in the sphere. The provision of
the constitution were enacted with a view to ensure the rule of law.

3. In Chief Commissioner Puniab v. Om Prakash. it was held that the rule of

law is a characteristic feature of the constitution by which the judiciary may question
any administrative action on the ground of legality especially when there is a
violation of fundamental rights

CONCLUSION:

The founding fathers of India accomplished what the rest of the world
though impossible- establish a country that would follow the letter of the law
and implement the Rule of Law. In all matters such as the protection of the
rights of the people, equal treatment before the law, protection against
excessive arbitrariness, the Constitution of India has provided enough
mechanisms to ensure that the Rule of Law is followed.

Through its decisions, the Courts have strived to reinforce these

mechanisms and ensure smooth justice delivery to all citizens. Problems
such as outdated legislation and overcrowded courts are but small
hindrances and bodies such as the Law Commission of India work towards
ironing out these problems with the aim of achieving a system where there
are no barriers to the smooth operation of the Rule of Law.

3 The courts have no power to direct the legislature to enact a legislation. Analyse 10 CO3
Ans.
SEPARATION OF POWERS:

The doctrine of separation of powers implies that each pillar of democracy –

 the executive,
 legislature and
 the judiciary –

perform separate functions and act as separate entities.  The executive is vested with
the power to make policy decisions and implement laws.  The legislature is
empowered to issue enactments.  The judiciary is responsible for adjudicating
disputes.  The doctrine is a part of the basic structure of the Indian Constitution. even
though it is not specifically mentioned in its text.  Thus, no law may be passed and
no amendment may be made to the Constitution deviating from the doctrine.
Different agencies impose checks and balances upon each other but may not
transgress upon each other’s functions.  Thus, the judiciary exercises judicial review
over executive and legislative action, and the legislature reviews the functioning of
the executive. There have been some cases where the courts have issued laws and
policy related orders through their judgements. 

These include the Vishakha case where guidelines on sexual harassment

were issued by the Supreme Court, the order of the Court directing the Centre to
distribute food grains (2010) and the appointment of the Special Investigation Team
to replace the High Level Committee established by the Centre for investigating
black money deposits in Swiss Banks. In 1983 when Justice Bhagwati introduced
public interest litigation in India, Justice Pathak in the same judgement warned
against the “temptation of crossing into territory which properly pertains to the
Legislature or to the Executive Government”.  Justice Katju in 2007 noted that,
“Courts cannot create rights where none exist nor can they go on making orders
which are incapable of enforcement or violative of other laws or settled legal
principles.

NATURE AND MEANING OF THE PRINCIPLES:

The separation of power is based on the principle of trias politica, which means
separations between three independent powers in nation that is legislature,
Administration and Judiciary.
The theory of separation of power signifies three formulations of structure
classification of governmental power.:

1. The same person should not form part of one more than one of three organs of the
government for example, Minister should not sit in the parliament
2. That the organ of the government should not interfere with other organ of the
government.
3. That one organ of the government should not excise the function exercise to any
other organ

This doctrine has been used in a strict sense in the US wherein legislative powers rest
with the Congress, executive powers with the President and judicial powers with the
Supreme Court and the subordinate courts. All three organs exercise a system of
checks and balances on each other and no one organ can encroach upon the power of
another.

POSITION IN INDIA: CONSTITUTIONAL PROVISION:

There is no separate provision regarding doctrine of separation of power has been

given in a constitution. But there are some Directive principles are given in the
constitution as in Part IV and Part V and Article 50 of a constitution is separating
the Judiciary from executive as, " the state shall take steps to separate Judiciary from
the executive in the public services of the state," and accept this there is no formal
and dogmatic divisions of powers. In India not only functional overlapping is there
but also the personal overlapping is prevailing.

JUDICIARY: under article 142 and article 145 of a constitution, the SC has the
power to declare void the law passed by the Legislature and actions taken by the
executive if they violate any provisions of the constitution are the law passed by the
legislature in case of Executive actions. Even the power to amend the Constitution
by Parliament is subject to the scrutiny of the court. The Court can declare any
amendment white if it changes the basic structure of the constitution
(KESHAVNANDA BHARTI v. STATE OF KERELA, (1973) ). In many cases
Court have issued direction for the Parliament to make policies.

EXECUTIVE: the President of India who the supreme executive authority in India
excise law making power in the form of Ordinance making power under article 123,
also the judicial power and article 103(1) and article 217(3), he has the Consulting
power to the Supreme Court of India under article 143 and also the pardoning power
under article 72 of the constitution. the executive office affecting functioning of the
Judiciary by making appointments to the office of Chief Justice of India and other
judges.

LEGISLATURE: The council of Minister is elected from the legislature and this
Council is possible for the Legislature. The legislature exercising judicial power in
cases of breach of its privileges, impeachment of the president under article 61 and
removal of judges. The legislative body has the punitive power under article 105(3).

CASES:

 In the case of Indira Nehru Gandhi v. Raj Narayan[xix], the Apex Court

held that Rule of Law embodied in Article 14 of the Constitution is the
“basic feature” of the Indian Constitution and hence it cannot be
destroyed even by an amendment of the Constitution under Article
368 of the Constitution. Article 329-A was inserted in the Constitution
under 39th amendment, which provided certain immunities to the
election of office of Prime Minister from judicial review. The Supreme
Court declared Article 329-A as invalid, since it was clearly applicable
only to the then current prime minister and was an amendment to
benefit only one individual. It was decided that the law of the land is
supreme and must prevail over the will of one person.

 In the case of Maneka Gandhi v. Union of India[xx], the Hon’ble

Supreme Court established the Rule of Law that no person can be
deprived of his life and personal liberty except procedure establish by
law under Article 21 of the Constitution. Thus, Article 21 requires the
following conditions to be fulfilled before a person is deprived to his
life and liberty:

1. That there must be a valid law.

2. The law must provide procedure.
3. The procedure must be just, fair and reasonable.
4. The law must satisfy the requirement of Article 14 and 19.

 In Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M.
 election was : pending before the Supreme Court, opined that adjudication of
a specific dispute is a judicial: function which parliament, even under
constitutional amending power, cannot exercise i.e. the l parliament does not
have the jurisdiction to perform a function which the other organ is
responsible for otherwise there will be chaos as there will be overlapping of
the jurisdictions : of the three organs of the state. Also, the constituent
Assembly Of France in 1789 was of the l view that "there would be nothing
like a Constitution in the country where the doctrine of separation of power is
not accepted." So if there is a provision then there should be proper
implementation and this judgment emphasis on that point only.

 Also in LR. Coelho vs. State of Tamil Nadu,S.C. took the opinion opined by
the Supreme court in kesavananda Bharati case pertaining to the doctrine of
basic structure and held that the Ninth Schedule is violative of the above-said
doctrine and hence from now on the Ninth Schedule will be amenable to
judicial review which also forms part of the basic structure theory.

4 Critically analyse the norms of jurisprudence of delegated legislation. 10 CO4

Ans. According to M.P. Jain, “ the term is used in two different senses:

 to exercise the legislative power by subordinate agents, or

 the subsidiary rules themselves which are made by the subordinate

authority in pursuance of the powers conferred on it by the legislature”.

Delegated legislation is commonly a sort of law made by the executive authority

according to the forces gave to them by the essential authority in request to execute,
actualize and administer the prerequisites of the essential authority. It tends to be
said that it is the law made by any individual or authority under the intensity of
parliament. It is otherwise called subordinate legislation in administrative law. It
permits the bodies beneath the essential authority or assembly to make laws
according to the prerequisite. Through an act of Parliament, Parliament has full
authority to allow any individual or authority to make legislation. An act of
parliament makes a structure of a specific law which will in general be an outline of
the reason for which it is made. The significant object of this is that any legislation
by such delegation should be according to the purposes as laid down in the act.

The main element is that it permits the state government to alter the laws if there is
any need without delaying for the new act to be passed by the Parliament. In the
event that there is any prerequisite, then authorizes can likewise be adjusted by the
delegated legislation as the innovation changes. It is believed that when such
authority is delegated by the Parliament to any individual or authority it empowers
such individual or the authority to give more detail to the act of the Parliament.

For instance, the neighborhood authority has power presented by the better one than
make or corrects laws according to the prerequisite of their separate areas. The
delegated legislation assumes a significant function as the number of them is more
than the acts of the Parliament. It has a similar legitimate standing as the act of
Parliament from which it is made.

There are three types of delegated legislation i.e.,

 statutory instrument,
 orders in board and
 by-laws.

Advantages of Delegated Legislation:

 Save time for the legislature.

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

Criticism of Delegated Legislation:

 It has a long duration of bearing for legislative control because the

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

DELEGATED LEGISLATION UNDER THE CONSTITUTION OF INDIA

Although the concept of delegated legislation was not mentioned specifically in the
Indian Constitution it can be understood by interpreting Article 312 of the given
Constitution. This Article gives right to the Rajya Sabha to open a new branch of All
India Service with a majority of two-thirds majority vote. This means that some
powers of legislation will be delegated to the new recruiter of All India Service.
There are many cases through which delegated legislation under the constitution of
India can be understood.

These are: Pre Independence: Queen v. Burah wherein the Privy Council had
validated only Conditional Legislation and therefore as per its reasoning delegated
legislation is not permitted. The administration of civil and criminal justice within
the said territory was vested in such officers as the Lieutenant-Governor may from
time to time appoint. Sections 8 and 9 of the said Act provided as follows: - "Section
8. The said Lieutenant-Governor may from time to time, by notification in the
Calcutta Gazette, extend to the said territory any law, or any portion of any law, now
in force in the other territories subject to his Government, or which may hereafter be
enacted by the Council of the Governor-General, or of the said Lieutenant-Governor,
for making laws and regulations, and may on making such extension direct by whom
any powers of duties incident to the provisions so extended shall be exercised or
performed, and make any order which he shall deem requisite for carrying such
provisions into operation."

"Section 9- The said Lieutenant-Governor may from time to time, by notification in

the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained
in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such
portion of the Khasi Hills as for the time being forms part of British India. It was
held that Indian legislators have plenary powers and it exercised the power in its own
right and not as an agent or a delegate of the British parliament. The Privy Council
laid down that “seeking of assistance of a subordinate agency in the framing of rules
and regulations which are to become a part of the law and conferring on another
body the essential legislative functions which under the constitution should be
exercised by the legislature itself. It also stated that the essential legislative function
consists in the determination or choosing of the legislative policy and formally
enacting that policy into binding rule of conduct.

Cases:

 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.
 Sikkim v. Surendra Sharma, 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.

Conclusion:

Delegated or subordinate legislation implies rules of law made under the gifted
individual of the Act of Parliament. In the event that in India, Parliamentary control
covers the delegated legislation then it is mandatory that the board of parliament
should be sufficient and separate laws should be made and passed which give a
uniform guideline for laying down and distribution purposes. An advisory group
must contain an exceptional body to look on the delegated work whether it's going
the correct way and adequately or not. All the three organs should zero in on their
work and don't interrupt superfluously to forestall turmoil in the framework. Despite
the fact that there are no express courses of action in the Constitution of India to
permit the appointment of definitive force, the legitimate example found in view of
assigned enactment is according to the point of establishing fathers our Constitution
whose principal concern was the adaptability of the Constitution with changing
needs of the time. In the event that you need to verify that the intensity of delegated
law in the arms of the administration isn't abuse, it is imperative to receive incredible
methods of control as relevant in the USA which India has now not integrated at this
point.
I, ……………………harish kumar………………………., understand that
submitting work that isn’t my own may result in failure in this paper and I may
also be subject to Disciplinary Proceedings as per the Academic Integrity
policy of the University.