Administrative Law - 18010126137

SEMESTER V – TERM END SUBMISSION
SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)
Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC
Program: BBA LLB (Hons.)

Batch: 2018-23
Semester: V
Course Name: Administrative Law
PRN: 18010126137
Name of the Student: Pranjal Singh
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question paper.
Question 1 Option 2
The legislature of India is empowered by the constitution to formulate laws for the country. It
is one of the most significant duties of the legislature to develop laws with respect to the
legislative policies devised by them. Considering the vast multitude of responsibilities of the
legislature, it is not always s expected of them to perform all the functions on their own.
The governing policies though are set by the legislature, the ancillary work of codifying
those policies is outsourced to the administrative section of the government and this is called
delegated legislation. Delegated legislature hence allows the executive to practice certain
functions of the legislature. Although an overburdened legislature has the leisure of
transferring it functions, it is cautioned that legislature should set down descriptive
boundaries for the executive to exercise this power and not leave anything more than
necessary to the discretion of the executive.
Definition
“Delegated legislature explained in simple terms refers to the allocation of a task to any
other organ of the government except the legislature, such delegation being done by the
legislature itself is called delegated legislation. According to Salmond the power which
precedes from a superior law-making body and the continuity of which depends on the
validity of the superior body, is called delegated legislation. There are supposedly two types
of delegated legislation:
1.) When a subordinate body exercises its administrative authority by performing its
duty of formulating laws delegated to it by a superior authority.
2.) When a body exercises its actual power of formulation of laws.”
Constitutionality of administrative rulemaking

The term 'Constitutional validity of administrative rulemaking' means the acceptable limits of
the constitution of any country under which the legislature can validly assign rule-making
power to certain other administrative agencies as the sole repository of law-making power.
Today, the need to facilitate the change from “laissez faire” to a state of welfare and service
has contributed to the immense expansion of government power.
Constitutional validity of delegated legislation in India

The legislature of India is authorised by the Indian Constitution to delegate their duties to a
government body that is not the legislature. The question of constitutionality of delegated
legislation was first raised in the case of “R vs Burah”. In the year 1869, the legislature
passed an act severing Garo Hills from the jurisdiction of Bengal and appointed a lieutenant
governor in charge of the hills under the same act, the Governor in lieu of exercising his
power, sentenced a man to death for the crime of murder. This act of the governor was
challenged and the Calcutta High Court declared “section 9 of the act” to be invalid as it was
violative of the constitutional use of delegated legislation on the behest that the Indian
Legislature was a form of delegated legislature in itself as it was subordinate to the powers of
the British Parliament. The court, keeping in mind the principle that a delegated act cannot be
further delegated, declared section 9 of the act to be null and void.
The constitutional validity of delegated powers further came into light in the case of
“Jatindra Nath Gupta vs State of Bihar” wherein the court held that the powers of legislature
in India cannot be assigned to subordinate authorities or any other organ of the government.
This decision of the court created a certain misperception with regard to the extent and
validity of delegated power in India. The then President, Rajendra Prasad, referred to the
Apex Court under “Art.143 of the Constitution” and requested for it to weigh in on the
validity of three sections that detailed delegated legislation, namely:
1.) “Section 7 of the Delhi Laws Act, 1912
This section of the act allowed the local government to apply any laws to Delhi that were
still applicable in any part of a British India.
2.) “Section 2 of the Ajmer-Merwara (Extension of Laws) Act, 1947”
This section allowed the government to enact any law to the Ajmer-Merwara region
which was applicable in any other state of India with due alterations and modifications.
3.) “Section 2 of the part C State (Laws) Act, 1950”
This section allowed the central government to extend any law it deemed fit to Part C
states which were applicable in part A states.”
“Re Delhi Laws Act, 1912” is considered the holy book of delegated legislation. The seven-
judge bench that presided over this case was conflicted and two extreme opinions on this
situation were being voiced. “Justice M.C. Setalvad” was of the opinion that unless the
legislature has relinquished legislative powers it will always be accompanied by the power of
delegation. This view of Justice M.C. Setalvad was dissented with the support of the theory of
Separation of Powers and the lati maxim “delegatus non potest delegare” which translates to
mean that a delegate is not allowed to re-delegate his authority. This maxim was interpreted to
imply a proscription on the delegation of powers. The apex court reached a middle ground and
declared the theory of separation of powers to be not a part of the constitution. It also stated that
now that India was no longer under the rule of Britain, it was no longer an agent of the British
Parliament or any other authority. “Hence, the Latin maxim “delegatus non potest delegare”
would not be applicable. Further, it was decided that the Parliament was not to relieve itself of its
duties by forming an analogous legislative body and that the power of delegation would always
be subordinate to the power of legislature. An estoppel upon delegation of power is put on those
powers that have explicitly been conferred to it by the constitution.”
Thus, on the foundation of these interpretations, the court concluded that:
1.) “Section 7 of the Delhi Laws Act, 1912” is valid

2.) “Section 2 of the Ajmer Merwara Act, 1947” is valid and;
3.) “Section 2 of the Part C of State (Laws) Act, 1950” is valid only with the exception of
that section of the act that allows excessive delegation of powers
Despite the fact that every judge on the 7-judge panel gave a differing opinion, it would be
incorrect to hold that a definitive conclusion was not reached. A similarity in the view of all
seven judges was observed in the following three points:
1.) That the legislature cannot give the amount and consistency of law necessary for the
functioning of a modern state, delegation is therefore a requirement.
2.) That the right of delegation may not be unrestricted in light of a written constitution
3.) It is not necessary to delegate the power to change a law or change legislative policy
because there are basic legislative roles that cannot be delegated.
Therefore, following the decision in that case, the key controversy in any case concerning
delegation was the question of deciding what is an important statutory role that cannot be
assigned and what is non-essential and that can be delegated.
Conclusion
Delegated or subordinate law means rules of law established under the authority of a legislative
act. While law-making is the role of the legislature, it can delegate its power to other bodies or
individuals via a statute. The law assigning such authority is known as the Enabling Act. The
legislature, through the Enabling Act, sets out the general guidelines and the delegated authority
enacts specific laws. Delegated legislation is required by the Constitution of India. It happens in
the form of bye laws, legislation, regulations, bye laws, etc. There are several reasons
responsible for its rise: The Parliament and State Legislature are too busy to deal with the
growing mass of laws needed to govern everyday affairs. Modern law needs knowledge of
technicality and experience of problems in different fields, which are not supposed to have such
knowledge by our lawmakers, who are politicians. Subordinate law, in the event of a mistake or
a fault in its implementation, is more versatile, rapidly and easily amendable and revocable than
ordinary legislation. Subordinate legislation will pass an act rapidly to deal with them when
contingencies occur that were not forceful at the time of making it. In a legislative body, fast,
efficient and confidential decisions are not possible. Therefore, administrators are named with
authority to make laws to deal with such circumstances. These are the key reasons for the rapid
rise in delegated legislation today, among many others. “Delegated legislation is an expression
that covers a multitude of confusion,” Justice P B Mukerjee said. For the politicians, it is an
excuse, a protection for the managers and a threat to the jurists of the Constitution. In our world
where social economic technical psychological and administrative pace outstrips the spacious
and placid conventional legislative values and procedures, it is celebrated as a necessity and felt
as inevitable. It is denounced by lawmakers as an abdication of authority and an escape from the
responsibility put on them by democratic voters. The king in England lost the legislative power
at Runnymede and parliament lost legislative power at stampede, which was subsequently
followed by administration and bureaucracy to provide the government for the country.
Question 1 Option 1
The concept of rule of law has evolved and been interpreted distinctively by scholars, jurists and
political thinkers across the world through their own school of approach. The origin of Rule of
Law sees its traces as early as 350 BC as introduced by Aristotle. In general, “rule of law” can be
understood as a set of principles or ideals that is to guide society whereby all actions that are
arbitrary and unreasonable towards the interests of citizens, either by the state or other citizens,
are completely eliminated.
One of the modern scholars that provided their approach towards rule of law and devised
comprehensive principles under it, was Prof. Joseph Raz, an Israeli political and moral
philosopher. Joseph” Raz forwarded his interpretation and approach on the basic concept of rule
of law in his book, “The authority of Law: Essay on Law and Morality”, in which he,
conceptually approached law and morality in a similar manner.
Joseph Raz’s idea of rule of law, can be reflected through one of his statements made in his book
that brings out that rule of law can even exist and in fact be better even in a non-democratic
system where there is denial of human rights, extensive poverty or sexual inequalities, than it
would be in a modern democracy. In simple terms. this approach doesn’t require the existence of
equality, justice or even the preliminary existence of democracy itself, for there to be rule of law.
This is a direct reflection of his formalistic approach towards the rule of law, whereby he
upholds positivism approach that is characterized by what law actually is, rather than what it
ought to be. In simple terms it forwards a more reality rather than ideal approach towards law.
He distinguishes the rule of law from what is “rule of good law” and hence ignored the
substance of law, while focusing more on the procedure and rules. This is a more limited view
which adopted rule of law as merely one single component of a legal system, rather than an
entire ideal for the legal system itself. Joseph Raz justifies this interpretation by stating that this
is required to ensure that rule of law meets its function of rule being a guiding and binding
independent authority, rather than it forming a social philosophy that is meaningless.
In the light of such approach, he postulated 8 principles that must be met, in order to constitute
rule of law. The principles are as listed below:
1) All laws must be open, clear, unambiguous and prospective in nature:
This principle follows that any law that is made must be known to the public, must have clarity
and should only be applicable from the date it gets published, that is prospectively and not affect
acts committed prior to the existence of such law.
In the Indian context the concept of openness of law is made application as all laws become
applicable only when they are published in the official gazette. This is mainly enforced as India
upholds the principle, ignorantia juris non excusat, which entails that ignorance of law, can’t be
an excuse or defence in any case and hence, this principle could only be fair and put into effect if
the law was easily made available to the public, which is exactly what is followed in India. Then,
with respect to prospective nature, it can be said to be partially followed. The constitution itself
under Article 20(1) itself provides protection against making and enforcing criminal substantive
law in a retrospective manner. In addition, criminal laws with amended and increased penalty
will also not have a retrospective effect. However, the same rules don’t apply to substantial civil
laws and both, civil and criminal procedural laws, hence it is partially followed. The aspect of
Unambiguity is also seen to be maintained and enforced in one way, that is Article 14 of the
Indian Constitution has been interpreted in a manner that laws that are vague and ambiguous can
be struck down under the principle of “Manifest Arbitrariness” as established in the case of EP
Royappa v. State of Tamil Nadu and Shayara Banu case. Hence concluding that this principle is
followed in India to a large extent.
2) Law must be relatively stable
Stability of the laws is to ensure there is trust in the law and some sort of continuity. However, it
doesn’t mean absolute stagnation in law. It can be understood with respect to how easily laws
can be amended.
In India, legislation must undergo the same process of enactment and passing by both houses and
president’s approval, before its enforcement. When it comes to the main rule of law guiding the
nation, the constitution, Article 368 allows for amendment of the constitution, however it is
subject to a very complex procedure and can’t be applicable to those articles forming the basic
structure of the constitution. In Shankari Prasad v. UOI, the issue of the amending of
fundamental rights emerged and this was finally decided through the introduction of the basic
structure doctrine was established in Keshavnanda Bharathi case, whereby certain provisions
and principles that form the pillar and basis of the constitution, can’t be amended. This shows
that it is stable, but can’t be completely characterized as rigid.
3) The legislating/making process of such law must be open, clear and stable rules and
procedure.
The legislators making the laws must carry out the law-making procedure based on basic settled
procedural principles which is an extension of the concept of due process and non-arbitrariness
that characterize rule of law. The common citizens must be aware of this procedure as well. This
principle is in pursuance of fulfilling the principle of stability and openness of law.
In India, this principle is met to a great extend as there is a set procedure under the constitution,
that must be followed at any time a new law is introduced or amended, requiring specific steps
including introduction of a bill, approval by the speaker, first, second and third reading along
with approval of both the houses of the parliament. In addition, there is a mandate of publishing
the bill, in the official gazette, before discussing and passing it, to ensure public awareness.
Similarly, the law-making procedure is always brought to the awareness of the public through
various discussion and debates in the parliament being broadcasted in the news media. For
instance, the 2020 Farmer’s Bill has been widely in discussion and criticized, with the public
also negotiating with the law makers. Another instance is in the application of rules such as
special laws
4) There should be guaranteed independence/ autonomy of the Judiciary
This principle insists on the existence of an independent adjudicating body, free from bias and
influence of other organs of the government, especially the executive. This autonomy is to ensure
proper check over the other organs of the government are carrying out their functions rightly,
along with ensuring that justice can be served without any form of corrupt influence on the
judiciary.
In India, this principle has been adhered to in a large extent by way of various constitutional
provisions. Firstly, it is incorporated as an ultimate object that is to be met by the government, by
way of being a Directive Principle of State policy under Article 50 of the constitution. Other
specific provisions ensuring the same include:
 Appointment of Judges: A key role of appointment of judges is carried out by the

role of judiciary itself in terms of consultation, and ultimate appointment by the
president.
 Fixed Tenure: The tenure of a judge is already fixed to and in extremely rare
situation as the process of removal is a complex one of impeachment that is the
one similar to removal of a President.
 No practice after retirement: There is also a prohibition placed on practicing after
retirement of the judges.
 Conditions of service are fixed: Various terms and conditions of service like
salary, perks, allowances and pension, is pre-fixed by the parliament, and can only
be changed by way of procedure of given within the constitution.
5) The Principles of natural justice must be followed
The principles of natural justice are inclusive of certain basic postulates such as “Right to
Counsel”, “audi alteram partem” and “nemo debet esse judex in propria causa”. This
principle requires for the practice of procedural law and justice serving, are guided by these
principles of natural justice.
In India, these principles are followed by way of certain constitutional mandates, as well as
actual basic procedural laws. Under the constitution of India, Articles 14 and 21 encompass the
principles of natural justice. For instance, the “right to counsel”, to the accused, is encompassed
as a fundamental right, under Article 22(2), which was also upheld in the case of Board of
Trustees of Bombay Port v. Dilipp Kumar Ragavendra Nath Namdhkarni. Similarly, the other
principles of natural justice such as “nemo debet esse judex in propria causa”, that purports
the principle that a person shouldn’t be a judge in their own case, to avoid bias in the
proceedings, has been adopted in principle and upheld in several judicial upholding such as G
Surana v. University of Lucknow.
6) There must be easy accessibility to the courts
This principle follows that the rights of people and interests should be easily protected by way of
access to the courts. Various forms of hindrances to ease accessibility can be high fees or great
delay.
In India, the Right to justice and speedy trial is protected under Article 21 of the constitution.
Under Article 39 A of the constitution, there a duty imposed on the state ensure the promotion of
equal opportunity to have access to justice, to all its citizens, in pursuance of which free legal aid
must be provided by it. The access to Free Legal as provided under the Indian legal system for
those who can’t afford it, has been upheld in the case of Hussainaa Khatoon v. State of Bihar.
Similar provisions of duty on the state to provide defence lawyer for the accused in the state’s
expense under the Criminal Procedure Code, Section 304.
Direct access to the judiciary to protect legal rights and fundamental rights are provided under
Articles 226 and 32 of the Constitution.
7) The courts must have the power to review and ensure that the other principles are
being followed
Flowing out of the principle of independence of judiciary, the concept of judicial review as
principle is established and entails that the other principles of not adhered to can be reviewed by
the courts. It includes the review of both, the judiciary and legislature’s actions. It entails the
power of judiciary to strike down laws or administrative actions that aren’t in compliance with
the constitution. For instance, under article 32, the court can hear petitions to review any action
or law that violates the Fundamental right guaranteed under Article 32 of the Constitution, which
is a prime example of exercise of judicial review.
8) There shouldn’t be perversion of law from any form of discretion exercised by the
crime preventing agencies
The law enforcement authorities, that is the police officers must not be guided by any form of
bias or discretionary action, as this would lead to exercise of arbitrariness. For instance, a FIR
filed against the commission of an offence, can’t be simply ignored by the police. In order to
ensure the same, they must be guided by certain procedural standards and laws.
In India, the police in book are guided by various laws in each step of their duty in investigation
by the Code of Criminal Procedure, hence ensuring the upholding of this principle. However, in
practical application it can be seen that the police is often subject to various political influences.
This can, however, be put to judicial review.
All in all, it can be concluded that in India, Jospeh Raz’s 8 principle of Rule of Law have been
adhered and met to a great extent by way of various constitutional and legal provisions. Some
aspects have however been adapted and infused in a unique manner to suite the nature of
democracy prevailing in India.
Finally it is important to also notes that Raz’s approach has been severely criticised as it
completely fails in meeting the main of object of the very concept of rule of law, that is to protect
the citizens and their rights from oppressive or arbitrary power. Joseph Raz’s model allows for
existence of gross human rights violation parallel to existence of rule of law, which would follow
that rule of law to exist even in the Nazi Regime where racial discrimination and persecution of
Jews was allowed and enabled by the law of the land itself. This is reflective extremely
dangerous and harmful such approach of rule of law could stand, considering that rule of law is
viewed as a modern pillar of democratic regimes.
In addition, some of the principles proposed by him stand quite contradictory to his own
formalistic positivism approach, which weaken his stance and approach to rule of law. For
instance, he postulates that there is not for principles like ensuring justice needed to be followed
in rule of law, but also goes ahead in his 8 principles to state the need for easy access to the
courts and principle of natural justice to be followed, which taints his ideology and exposes it to
criticism.
However, in conclusion, although highly criticized in his approach to rule of law, the 8 principles
seemingly fit in today’s idea of rule of law and is of relevance and is also followed in the India
Context.
Question 2 Option 1
The theory of Division of Powers stresses the shared exclusive authority of the three branches of
government. The key emphasis is that each of these systems should only play one task. That
there shouldn't be accumulation of all of the functions into one organ because then it should
operate in an arbitrary manner. It may make a draconian rule, enforce it in a cruel and oppressive
method and enforce it in an arbitrary fashion without any external influence. “Separation of
government and religion” was devised to restrict the absolutism of government. The reasoning is
that if all authority is centralised into one entity, the danger of government centralism
jeopardising the independence of the people, will arise. However, this doctrine has been viewed
as being beyond the scope of law. The theory of division of powers is not a legal term.
The principle of Separation of Powers is not stressed in India's Constitution. In the political
framework, the executive and the judiciary are not officially separated.
Parliament is the protector of the constitution of the union. In India, executive and judiciary are
regarded as two separate divisions. Often, exceptions can be applied to this rule as well.
The only consequence of the doctrine of division of powers is that they are part and parcel of the
same thing. In “Ram Jawaya Kapur v. State of Punjab”, the apex Court ruled that
"There are powers or functions that cannot be assumed nor intruded into by the one organ or the
part of the State."
The division of powers is considered to be structural cornerstone of the constitutional system,

and it cannot be damaged by an amendment.
Therefore, the theory places less emphasis on the organisational structure. Honourable J. Kania
observed in “AIR 1951 SC 332” that.
“Although in the Indian Constitution, the division of powers makes law simple and specific, and
restricts the breadth of the powers of government. Is it not a fact that under the Constitution the
obligation to make laws and then, to exercise its own intelligence, judgement and patriotism in
passing laws, is mainly allocated on legislators? These roles can, however, be performed by
anybody empowered by the Constitution.”
In August 1984, Justice Pathak proclaimed in “Bandhua Mukti Morcha v. Union of India [AIR
1984 SC 802]”:
The Constitution is "built on the division of power between both the legislature, the executive
and the judiciary." Although the lack of definition is not entirely obvious, there is generally
recognition of its boundaries. These can be derived from the formal provisions of the Law,
conventions and related enactments and court interpretation.
In “Mallikarjuna v. State of Andhra Pradesh, [AIR 1990 SC 1251]”, the Apex Court placed a
need to recognise basic roles by setting guidelines for promotion of veterinary surgeons. “As a
result of Apex Court decision, the power granted to President/Governor under Art.309 of the
Constitution has been quashed.” Legally, the High Court and administrative tribunals do not
enforce any clear laws on the state government. This concept prohibits any institution of the state
from being more powerful than another or others.
Likewise, in the Apex Court in “Employees’ Welfare Association v. Union of India [AIR 1990
SC 334]”, it was observed that no court would grant an injunction to a legislature to pass a
specific rule.
The duties of various organs are well described such that one entity does not take over the duties
of the other. In “Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 2299]”, Ray CJ. also noted
that there is an implicit division of powers in the Indian Constitution only. Beg, J. will observe
that the Indian Constitution is based on the principle of Separation of Powers. Chandrachud, J.,
holds that this doctrine is useful in managing checks and balances in democratic institutions. The
courts should keep clear from the affairs of the Legislature and lawmakers should yield to its
decision.
One may be under the impression that the doctrine of joint power in Pakistan has been
recognised under the Constitution of Pakistan. In “Golaknath v. State of Punjab [AIR 1967 SC
1643]”, Justice Subba Rao expressed:
The constitution establishes various political bodies such as Union, States and Union Territories.
This instrument enhances the legislative, executive and judicial branches of the government. It
delineates their authority well and expects them to exercise their respective powers without
straying outside the boundaries. They should work within the sphere provided to them by others.
In August 1984, Justice Pathak proclaimed in “Bandhuva Mukti Morcha v. Union of India [AIR
1984 SC 802]”:
“The executive actions of the union are entrusted with the President while being under Art.154
the Governor is entrusted with the power to strictly enact laws. President and Governor each
have the right to delegate legislative authority under the Constitution. The President is the
Executive of the State (Art.356). Only the President may absolve any elected to the house.
Judges are appointed to the Apex Court by the President, while the Parliament may impeach
judges. The President may nominate or remove a judge from any Apex Court if the President
thinks the Judge is incompetent.”
The Union Council of Ministers are the advisory board for the Lok Sabha “(Art.75)”. This
division of the Government House has the power to impeach the President and judges of the
Apex Court. The Cabinet will be composed of the MPs and the State Assembly Ministers.
The legislature as a judicial body is important. This is something about which the judges will
respond without hesitation.
The High Court’s serve more as administrative armours than judicial guards. Their supervisory
authority is, therefore, more administrative than judicial. Since they have power to withdraw
cases from state district courts, they have power to also exert administrative control over certain
state district courts. The capacity of the High Courts and the Apex Court is reasonably extensive.
The Governor-General in India is able to sign delegated legislation. In the name of

administrative adjudication of the interests of individual people, a number of statutory courts
have been established, which perform both judicial and administrative duties.
Judicial judgement on theory of separation of powers. Several judgements also modified the
doctrine of separation of powers in India. These are on this part.
If indeed the "rule of law" as articulated by Dicey influenced the development of

“Administrative Law” in the United Kingdom, the "Separation of Powers" doctrine had an
intricate influence on the improvement of Administrative Law in the United states As Davis
pointed clear, “the theory of division of powers was probably the key doctrinal
impediment growth of the Administrative Process”. The fact is that although the separation
doctrine has changed the essence of American Administrative Law, the theory has indeed been
influenced by the recently evolving movement in pursuit of Administrative Law.
The division principle is the cornerstone of the United states political framework. Distinct
authorities are assigned and divided by “Art. 1, 2 and 3” and thus demonstrate the principle of
division of powers. Art. 1 reserves the power of law in Legislature; Art. 2 reserves it with the
President and Art. 2 reserves with the executive authority. Throughout the apex Court, Art.
3 reserves judicial authority. The principle of division, both practical and staff, is still
unrecognised, but the closest approach is obtained in the "Massachusetts State Constitution" in
the U.S. In it, it is stated that—
“The legislative department shall never exercise the executive or judicial powers, or either of
them; the executive shall never exercise the legislative and judicial powers, or either of them; the
judicial shall never exercise the legislative or executive powers, or either of them; to the end it
may be a government of law and not of men.”
Government Presidential Form
The system of democracy is based on the principle of division between both the legislative and
executive branches, described as presidential. Including its chief executive, the President is also
the head of the administration. He elects and rejects certain top executives and thereby monitors
govt agencies' actions and acts. At his leisure, the individuals in control of the multiple agencies,
appointed as Secretary of State, shall hold office, be accountable to him and be more like his
private advisers. The President also isn't bound to follow a secretary's advice and the President is
responsible for the final decision. A member of Congress is not the President and therefore no
one of the government and a distinction is established between both the executive and legislative
branches. This form of democracy greatly differs from the form of legislature which prevails in
India.
In the United states, unlike India, wherein the “cabinet” is collectively accountable to Parliament,

the President isn't really technically accountable to Congress. The President has a defined term of
his leadership and in Congress he does not rely on as a strong fallback option. Only through the
incredibly lengthy method of indictment will he be dismissed before even the expiration of his
tenure. Nor could the President dismiss Congress, while the Prime Minister has the authority in
India to pursue Parliament's dissolution. Consequently, the executive would not be in a capacity
to support the parliament with competent governance and it is not often that Congress supports
the plan and policy introduced by the president. The Apex Court's sovereignty is legally assured.
The Checks and Balances Theory
However, in order to implement the system of checks and balances, the U.S. Constitution
includes several exemptions to the principle of distinction. For example, the President could veto
a piece of legislation and, to this degree, the President can United states be seen to be carrying
out a legislative role. Again, it is responsible for the implementation of the Senate to nominate
such political figures. Also, unless legislation is enacted, treaties negotiated by the President
aren't really efficient; to this degree, thus, the Legislature can be considered to exercise executive
functions. Via its numerous panels, the legislature constantly probes cognitive abilities, but also
possesses the ability to levy and approve funds for federal agencies. The Apex Court is entitled
to deem illegal the Actions approved by legislature. But with the approval of the Senate, the
judges of the apex Court are named by the President. On the basis of the principle of checks and
balances, this practice of certain part of the object about one sort by an institution of another sort
is justified. It implies that one organ's functioning is verified by the other organ in some measure
so that no entity mat runs amok with its forces and misuses the same. In the context of : Panama
Refining Company v. Ryan [(1935)293 U.S. 388(400)]”, therefore, reflecting on the practicality
of J. Said Cardozo:
"The "separation of powers" doctrine is not a doctrinaire term to be used with pedantic rigour. In
answer to the practical needs of government, there must be rational approximation, there must be
elasticity of adaptation, which cannot predict the creation of tomorrow in its almost infinite
variety today.
Administrative creation and division of powers

Administrative law and the doctrine of separation are somewhat contradictory, because the
current administrative method envisages the combining of different forms of administrative
functions. Had the separation doctrine been exclusively enforced in the U.S.A., it would have
been incredibly difficult to establish the administrative process and modern government would
have been impossible. Therefore, for practical purposes, the theory of distinction must be
somewhat diluted to accommodate the development of the administrative process.
The Delegated Laws
There are some distinctive characteristics of American Administrative Law that are a result of
the doctrine of separation. A major violation of the doctrine arose when it was possible for the
courts to assign legislative authority to administrative agencies, and hence the process of
allocated power came into common usage. However, in an effort to reconcile the doctrine of
separation, the courts established that Congress should not confer an
unrestricted Parliamentary authority on an administrative power, that Congress should not give
up its role as primary representative, and that Parliament should thus create the policy to be
pursued by the delegate when making the laws. J. Mukherjee observed in the “re Delhi Laws
Act” case:
"The position in America is that a host of rules and regulations are passed by non-legislative
bodies, which have been recognised judicially as valid, despite the theory that the legislature
would not delegate its power to the executive."
QUESTION 3 OPTION 1
Justice Coke has rightly pointed out that discretion, particularly administrative discretion, relates
to the power given to administrative authorities to choose between a particular set of alternatives
that are based on the law and are in consonance with the constitution and not based on their
personal bias or any arbitrariness (UP State Road Corporation v. Mohd. Ismail, AIR 1991 SC
1099). Administrative discretion is necessary as no government can function without it being
used when necessary. However, absolute power should not be given for absolute discretion. For
example, the National Security Act, 1980, gave the police wide powers and led to absolute
discretion with relation to preventive detention.
This leads to the constant debate as to where the administration has acted arbitrarily and where
they have acted reasonably. Reference can be made to Lord Acton as well who stated that every
power tends to corrupt and absolute power corrupts absolutely. The only solution is to ensure
that it is used carefully as it cannot be done away with.
Further, it is difficult to define the powers of the executive as there is no strict Separation of
Powers in India. It was held in the case of Ram Jawaya v. State of Punjab, AIR 1955 SC 549 and
in the case of State of Tamil Nadu v. K. Balu, AIR 2017 SC 262 that defining executive functions
is a tedious task. It is whatever is not done by the legislature or the judiciary.
It must also be noted that there is a difference between ministerial powers and discretionary
powers as seen below:
Ministerial powers Discretionary powers
Powers are strictly exercised as per the law Powers are applied based on the facts and
and there is no choice. circumstances of a situation or case.
It is universally applicable. Subjective satisfaction of the author is

important.
No power to give a different treatment Different treatment is given according to the

based on facts and circumstances of a case. situation at hand.
Judicial mechanisms to control administrative discretion
1. Control at the stage of delegation of discretion
The Court controls administrative discretion by adjudicating upon the constitutionality of the law
and making sure that it is in conformance with Part III of the Constitution
2. Control at the stage of exercise of discretion
USA has an Administrative Procedure Act, 1946 which checks administrative discretion but in
India, Administrative Law is not codified. Therefore, judge made law is used in this regard.
There may be two scenarios –
a. The authority is deemed not to have exercised any discretion or there is a failure on
its part – the Court has the power to exercise judicial control over the administration if it
has abdicated its powers or put fetters on its exercise. They can be compelled to exercise
it in the matter prescribed by the Court. In the case of Purtabpore Co. Ltd. v. Cane
Commissioner of Bihar, (1969) 1 SCC 308, the cane commissioner had the power to

reserve areas for sugar factories. On dictation by the Chief Minister, he excluded 99
villages from the area reserved for the appellant company. The Court held that he had
abdicated his power as he exercised it on the dictation of some other authority so it was
like as if he had not exercised discretion at all.
b. The authority has not exercised its discretion properly or there has been an abuse of
discretion – this refers to unreasonable or arbitrary discretion and includes taking
irrelevant considerations into account, acting for improper purpose, acting in bad faith,
etc. In the case of Indian Railway Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC
579, it was held that discretion can only be committed by the authority that this power is
given to. Authorities must act in good faith and Wednesbury reasonableness (discussed
below).
Types of judicial review over administrative discretion
1. Non application of judicial mind
The administrative authorities are expected to take care and caution while making decisions and
must do their work properly. However, at times they do not pay attention to the facts and
circumstances of a case and apply the law mechanically. This was seen in the case of Emperor v.
Shibanath Banerji, AIR 1945 PC 156, where the preventive detention report with
recommendations was prepared by the police and was sent to the Home Ministry. They then
applied their mind and gave the final decision without going through the report. Here the Court
held that the Home Ministry acted mechanically.
At times the authorities also fail to apply discretion when required and abdicate their functions.
Further, they tend to act under dictation and follow orders given by superior authorities and do
not use their discretionary powers. In the case of Commissioner of Police v. Gordhandas Bhanji,
AIR 1952 SC 16, the police to were allowed to grant licenses for cinemas under the Bombay
Police Act, 1902. The state government told them to cancel a particular license and it was done
without any questioning. The Supreme Court held that the commissioner acted like an agent of
the government and the order was set aside.
Administrative authorities also tend to impose limits on discretion by self-imposed rules of

policy when they interpret the law in a wrong way. They interpret the law and come up with their
own policies in such a way that it reduces their workload. For example, in the case of Gell v.
Teja Noora, (1903) 27 ILR 307, under the Bombay Police Act 1863, the commissioner could
refuse to give license for any land conveyance if it is not fit for public use. The commissioner
issued a general order stating that any Victoria (car) of a particular pattern will not be granted a
license. Here he did not go through individual cases and issued a blanket order to reduce his
workload which was not looked upon favourably by the Bombay High Court.
2. Excess/abuse of discretion
When the administrative authorities abuse their power and do not act in accordance with the
parent act, judicial review is warranted. Exceeding jurisdiction and overstepping boundaries are
only allowed when it is extremely necessary in public interest. This can be seen through the case
of Hukumchand v. Union of India, 1902 AC 165 where the Central Government gave powers to
the engineers to disconnect telephone lines in any public emergency. The divisional engineer
found out that Hukumchand was involved in illegal activities and disconnected his telephone.
The Court held that he acted in excess of his powers as this was not a public emergency.
When there is irrelevant consideration i.e., the authorities do not look at legal provisions and take
action, the judiciary can step in. Authorities must act as per the considerations mentioned in the
statute. If there are no considerations mentioned, it must act in the way in which its lawful
purpose will be fulfilled. In the case of Ram Manohar Lohia v. State of Bihar, AIR 1976 SC 789,
the appellant was detained by the police under the Defence of India Rules which allowed the
police to detain anyone if they disturbed public order. However, the Court said that the police did
not note the difference between ‘law and order’ and ‘public order’ which is a broader concept.
Therefore, the detention was not based on public order. Further, when an authority does
something, it must be in consonance with all relevant provisions of a statute [Indian Nut
Products v. State of Kerala, (1994) 4 SCC 269].
The actions taken by administrative authorities must be reasonable and rational. Certain times,
statutes may mention that the administrative authorities must act reasonably which means that it
must act fairly. It is a wide umbrella that includes improper purpose, malafides, etc. it includes
those times that the authorities act correctly but on wrong or unreasonable grounds. The
Wednesbury principles of reasonableness must be followed which states that an act is
unreasonable if no reasonable person acting reasonably would have done that act [Associated
Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223]. This principle
paved the way for the doctrine of proportionality that is widely used after the case of Maneka
Gandhi v. Union of India, AIR 1978 SC 597.
Colourable exercise of powers should also be abstained from and authorities should not exercise
discretion indirectly if it cannot be done directly. They cannot find loopholes to satisfy their own
interests. This is not a separate ground for judicial review but comes under irrelevant
considerations. The case of Narayan Deo v. State of Orissa, AIR 1953 SC 37 is important in this
regard. In this case, the government of Orissa was interested in acquisition of agricultural land
and passed the Orissa Estates Abolition Act, 1992 imposing tax on agricultural income. The
purpose was to lower the valuation of the estates through a low rate. The appellant challenged
the same and the Supreme Court said that the State government had no right to do such a thing as
it is a part of the Union List and quashed the law.
3. Violation of fundamental rights
The job of the Court is to step in whenever there is a violation of fundamental rights. Therefore,
if any law abridges a fundamental right, it is subject to judicial review. In the case of State of
Maharashtra v. Prabhakar Pandurang, AIR 1966 SC 424, the appellant was detained under the
Defence of India Rules and he wrote a book on science when he was detained. The government
did not grant him permission to send the book for publication. The Court held that his freedom of
speech and expression under article 19 had been curtailed and since the book did not threaten the
defence of the state, it should be allowed to be published.
Malafide actions by the state to harass people are also in derogation of fundamental rights. It
means that it is done in bad faith and there is abuse of power. This is seen in the case of C.S
Rowjee v. State of A.P, AIR 1962 SC 962 where the appellant had a motor transport business but
the Chief Minister did not like him and there was animosity. The government then decided to
nationalise motor transport district by district and the first one was the appellant’s district. The
Court saw this as malafide intentions as the nationalisation was done so that the appellant would
run into losses. The Chief Minister was not able to prove otherwise. The term ‘malafides’ has
been used in a narrow sense of exercise of power with dishonest intent. It includes cases where
the motive force behind an administrative action is personal animosity and spite as seen in this
case.
Sometimes the order passed is not entirely based on irrelevant or extraneous considerations and
is founded partly on relevant one and partly on irrelevant ones thus making them mixed
considerations. In the case of Shibbanlal v. State of U.P, AIR 1954 SC 179, the government used
section 11 of the Preventive Detention Act, 1950 to take him into custody. He approached the
Court and during the pendency of the case, the order was revoked through section 3 but he was
not released. The Court said that one law gave two different powers to the government so they
need to be applied equally and one of them should not be neglected.
The Court may also step in when there is a violation of any principles of natural justice.
The need for administrative discretion
1. The legislature cannot foresee all exigencies as they make legislations based on
presumptions that they are required. Therefore, the executive will need to cater to any
problems that arise in their implementation.
2. There are complex problems that arise at times which relate to specific laws.
Therefore, it will be difficult to comprehend the same based on general rules.
3. Many problems are new and depend on social dynamics and the environment which
need to be catered to. For example, COVID-19 was a contingency which the government
did not foresee and the executive had to make many rules to contain the situation
immediately.
4. Circumstances differ from case to case so applying the same ridged rule will not help
Question 3 Option 2
a) a) Extended interpretation of remedies available against administrative bodies.
The Judiciary, in India is imposed with the powers of protecting the rights and liberties of its
citizens as against the discretionary, arbitrary or unprincipled exercise of powers and functions
by the Administrative bodies and in such effort exercises its powers of judicial review. However,
it is to be noted, that in the view of dynamic and unexpected events arising, the practice of
discretion has in fact been accepted in the domain of administration actions. However, upon such
discretionary action being visible of being characterized with abuse or misuses of its powers,
then the role of judicial review sets in to overlook the validity of exercise of such discretionary
powers, in order to ensure that interest and rights of the common citizens and public aren’t
jeopardized, judicial review is allowed to over-look such administrative actions, acting as an
extension to the existing remedies available against it.
Grounds for extended interpretation of remedy
It is important to also consider the main grounds, allowing for such extended interpretation in
the form of judicial review. It essentially when administrative actions of the administrative body
being questioned, shows either one of the following:
a) No-application of mind.
b) Excessive/ abuse of power.

c) Violation of Fundamental Rights.
A) Non-application of mind covers the following instance

 When admin body acts mechanically without considering facts or circumstances
 When it abdicated or doesn’t carry out its duties
 When it simply exercises power in accordance to what is told to them by a high
authority
 When they self-impose rules for exercising discretion, to save its own time.
B) Excessive/abuse of powers
 The most basic is when it exceeds its jurisdiction
 Irrelevant consideration while exercising powers, while ignoring the relevant
ones.
 One of the widest grounds is of unreasonableness and irrationality, this falls
within the ambit of Art.14. It is also reflective of the Wednesbury principles that
upheld judicial review over admin actions, by way of it being irrational,
unreasonable and out of proportion.
 Ignoring relevant considerations as held in India Nut Products v. State of Kerala.
 Colourable Exercise of powers that is indirectly abusing or misusing powers.
 Violating Principles of Natural Justice
C) Violation of Fundamental Rights.
It protects and remedies against any action that violates any of the Fundamentals rights of
any citizen, as has been given to under Part III of the Constitution.
Modes of seeking such extended remedies:
Judicial review is available under Constitutional provisions underlying Art. 32 and Art.226.
 Under Art.32
Art.32(1) provides remedy for any case of fundamental rights violations caused by the
administrative actions. Art. 32(2) orders Supreme Court to issue writs or orders for enforcement
of fundamental rights when they are being violated. The writs are inclusive and will be
applicable to admin bodies in the following ways:
o Habeas Corpus: This writ presented people with a fast and successful redress
against arbitrary and unconstitutional imprisonment or confinement.
o Mandamus: It is a command given by the court to an authority that instructs it to
execute, or not to perform, a duty that it is legally obliged to perform. This can
extend over to any form of jurisdiction including the administration/ executive or
even, quasi-judicial.
o Certiorari: It is a court procedure to request judicial review of a ruling of a lower
court or in this case, governmental entity.
o Prohibition: This writ orders a subordinate to avoid doing anything that the
statute forbids. This writ is also issued against the lower court by the superior
court, which orders it not to proceed with a case which does not come under its
jurisdiction.
o Quo Warranto: This writ calls on the holder of the public office to show to the
court that the public office in question is under what jurisdiction. This writ seeks
to give protection against the actions of unlawful appointments of public office,
but also to prevent the public from being denied the office to which they are
entitled. This is of great relevance with respect to admin authorities.
 Under Art.226
High Courts to issue writs or orders for enforcement of fundamental rights or any other rights.
Some other forms of remedy include: a) Judiciary’s Opinion: Several times, on request, judiciary
may give its opinions on certain actions to Administrative bodies. b) Injunction: that can be
granted by judiciary through the Specific Relief Act, 1963; Compensation: Various statutes and
provisions allow for monetary compensation in the form of damages against unjust or ultra vires
acts of administrative bodies.
In conclusion, at the same time that discretion is necessary to ensure proper carrying out of
admin functions, even ensuring such discretion doesn’t prejudice or go against the rights of the
citizens along with not being of abusive character, and this is ensured by means of extended
interpretation od remedies against admin bodies as allowed under judicial review and such
exercise as analysed is extremely important.
b) Logic behind relaxing rule of Locus Standi
Locus standi principle concerns itself with whether a person can stand to protect their rights and
enforce it in a particular court of law. It is mainly in connection to deciding who can truly avail
certain enforcement of fundamental rights through petitions under Article 32 and 226 filed
before the High Courts and Supreme Court, respectively. Earlier it was more strictly applied,
however over time, such principle has evolved to be liberally interpreted and applied by court to
allow for wider, easier and more efficient protection of fundamental rights enforcement. This
relaxation in the application of the principal of locus standi has significantly improved the
protection of fundamental rights of citizens which would otherwise have been extremely
difficult.The manifestation of such form of relaxation lies in evolution of Public Interest
Litigations (PILs) that allow for a person to enforce the fundamental rights of another person
being a third party where there is common shares interest or general public interest in concern.
The principle underlying the introduction of this concept of PIL is the following:
 Ensure that a legal wrong or where a legal right violation (fundamental as well) doesn’t
go unaddressed due to lack of resources or due to some other disability or technical
difficulty in approaching the court.
 Ensure more efficiently or speedier enforcement when a shares come interest is violated,
and hence avoid duplication of proceedings.
This rationale was reiterated in the case of Fertilizer Corporation Union v. UOI, wherein it was
brought to the light that when corruption is evident in the whole government then state power
can be used on grounds that is unrelated to its nominal purpose. In such a climate civil remedies
for administrative wrongdoings depend upon an individual citizen and for the sake of social
justice judicial review of these administrative actions must be available upon the action of the
individual citizen.
This clarified the wide importance that PIL, in its application to deal with actions or remedies
against administrative authorities.
Importance of relaxed application of Locus standi to Admin law

The Fertilizer Company Union v. UOI, brought out the wide importance of PIL, in its application
to deal with actions or remedies against administrative authorities while holding the rationale of
above stated objects to be important in context of visible corruption is in the entire government,
where state power can be used on grounds that are not relevant to its nominal intent. In such an
environment, civil remedies for administrative violations depend on an individual citizen and, for
the sake of social justice, judicial oversight of these administrative acts must be available for the
individual citizen's action.
It proves to be an impediment to a stable system of administrative law when the principle of

locus standi is applied restrictively. If a person with a good case is turned away simply because
the conditions of locus standi are not adequately met and the technical difficulties emerging in
the institution of the case cannot be explained, that means that the government is left free to
violate the law and act contrary to public interest.
In the landmark case of DC Wadhwa v State of Bihar, a political science teacher in Bihar
questioned the practice of repromulgating ordinances without Parliament's proper approval. This
professor was a member of the public mind who was concerned with ensuring the proper
execution of the Constitution's provisions. In In this case, it was held that the plaintiff had an
adequate interest in retaining the petition as a member of the public pursuant to Article 32.
Therefore, on the grounds of the representative status as well as the individual standing for the
proper application of the protection of fundamental rights, locus standi should be relaxed.
Hence, concluding that the evolution of relaxed application of locus standi, has been of greatest
benefit to the citizens in respect to remedies against the administrative authority/government and
of utmost benefit to the changing environment to suite and ensure administrative efficiency and
legality of its actions.
c) Exclusion of Judicial Review Clauses
In order to bring to effect finality in a particular decision either made by an executive authority,
requires that the powers of judicial review must be expressly barred. To bring such result to
actual form, clauses known as finality or exclusionary clauses are provided under either certain
Constitution provisions and under statutes in order of declaring that the decision given by any
administrative agency shall be held to be final thereby, effectively excluding the court’s power of
judicial review. Some forms of such finality or exclusion clauses that currently exist or were ever
existing under the constitution include:
 Schedule X: Prior to 1992, this provision limited the powers of judicial review over
decision of the speaker /Chairman exercises his powers in removal of member of the
parliament. This however in the Case of Kihotoa Hollohon v Zachilhu,, came to debated
on whether a Speaker or Chairman is acting as a tribunal and hence, there would be need
for judicial review which was previously excluded by the provision. It was finally
decided that judicial review bar can be removed in cases where removal of on defection
grounds are concerned.
 Art.34 and Art.342: These articles empower President to make lists with respect to
Scheduled and Scheduled Tribes in relation to a State, however inter alia provide express
bar on civil jurisdiction of courts to review such power. This being held with respect to
Section 9 of Code of Civil Procedure to not have jurisdiction in such case, in the case of
State of T.N. v. A. Gurusamy.
 Article 323 A(d): This provision excluded jurisdiction of all courts except that of the
Supreme court under Art. 136., in respect of disputes mentioned in Art. 323A, clause 1
and Art. 323B, clause 2. In case of L. Chandra Kumar v. Union of India And Ors, on
such grounds it was held unconstitutional.
In order to understand the legal position of whether such judicial review exclusion clause can be
incorporated with respect to administrative action, the review must be categorized into 2:
I) Review through writ jurisdiction of the Court
The judicial review through writ jurisdiction under Art.226 and Art32 is protected from being
subject to jurisdiction ousting clauses of statutem as held in the case of Raja Jagadabika
Pratap Narain v. Central Board of Direct Taxes, AIR 1975 SC 18116. This is also keeping
in mind that judicial review was upheld in Indra Gandhi v. Raj Narain case and
Keshavnanda Bharathi case, wherein judicial review is a part of basic structure and under
such consideration , no absolute bar under such power of judicial review finding
constitutional root, can be enforced with respect to administrative action/decisions, especially
by another statute.
II) Review through filling of civil suits
However, under civil remedies under suits have in fact been barred even within the constitution
itself. These remedies arise out of statue itself and hence can be restricted as well by another
statutary provision. In this respect the case of Dhulabai v. State of Madhya Pradesh held that
the jurisdiction of the civil court can only be ousted if the statute provides for substantial
remedies the same way a civil court would do that is only if other appropriate forum for dispute
resolution can the jurisdiction of the civil court can be assumed to be ousted.
Further on such exclusion clause gets completely lifted when there comes an advent of case of
discretionary exercise of power by the Administrative authorities. Which can mainly be
classified into two types:
 Abuse of discretion or powers

 Non-application of mind.
In Respect to ousting of jurisdiction with respect to judicial review over decisions taken by
administrative tribunals or bodies, the case of R v. Medical Appeal Tribunal, clarified the legal
stance to be that no absolute Bar can be putt to the review of decisions by administrative
authorities, as it would amount to a bar over supervisory jurisdiction, Existence of finality clause
in the statute is believing that the tribunal will take law into consideration while deciding the
case. Further, a person who is aggrieved by the decision of the tribunal when the decision is ultra
vires can approach the court and the decision may be reviewed on the grounds of it being ultra
vires, which is a question of law. By merely invoking clause establishing finality of the decision
by the tribunal does not bar a court from reviewing a decision on grounds of law.
In conclusion, such exclusion of judicial review clauses can never exist in complete or absolute
sense. It is especially safeguarded in case of writ jurisdiction and in cases of misuse or abuse of
discretionary powers of administrative.
Question 4 Option 1
State duty applies to the state's liability resulting from the actions of obfuscation performed by its
officers. It's been controlled and is not a fixed term by published or unpublished rules. The
State's responsibility for the wrongful actions of its officials, defined as the State's tortious
liability, shall render it responsible, on a conscious or unconscious basis, for errors of
compliance and noncompliance, and shall bring such acts before the Court for undiluted
compensation. Such negligence is a component of the Torts Act as well. Tort law has moved in
this country via Britain like different other laws and is now diverse since it is governed by local
ordinances and federal statutes.
Before Independence
The application of Crown protection to the Corporation was specifically addressed prior
to august 1947 in the Apex court case of “Peninsular & Oriental Steam Navigation Co. v.
Secretary of State.” The case's facts are:
A few of the cavalry in the claimant's cart was hurt by the iron lever dumped by the state wharf
staff on the road. Therefore, the plaintiff brought an action against the State for damages for the
damage inflicted to the horse by the government workers' misconduct. The contrast was created
in India for the first time claiming that if the state conducts sovereign duties, it can never be held
accountable for any tortious behaviour. And the state would be responsible for certain actions in
the lack of government duties. In this situation, however, the Court ruled, on the grounds of the
above-mentioned differences, that the Government wasn't responsible because it was enacting its
duties.
“In the 1882 case of Secretary of State vs. Hari Bhanji when it appeared before the "High Court
of Madras, in which the amount of duty on salts was raised during the transportation of salt
from Bombay to Madras ports and the trader was summoned to cover the fee at the place of
shipment.”
Through pressure, he paid and initiated the lawsuit for its restoration. The court ruled in this case
that the government was not responsible for enacting its constitutional duty in evaluating the
"Peninsular & Oriental Steam Navigation Co. v. Secretary of State" case.
In the “Secretary of State vs. Cockcroft”, wherein the claimant was hurt by the careless placing
of a pile of rubble on an army street controlled by the “Public Works Department” where he was
taking a stroll, the opinion that State should not be held responsible for any tortious
liability resulting from Governmental Activity was also extended. The “Madras HC” ruled that a
claim for compensation against the state was not sustainable due to the construction of streets,
especially army streets, was one of the government's federal and not personal duties.
After the Constitution came into force
“State of Rajasthan v. Vidyawathi” is a fascinating case of constitutional challenges in the post-

Independence India. After repairs, the person who drove the jeep, funded and operated by the
government for authorized use by the collector, drove it recklessly and irresponsibly when
bringing it back from the garage to the collector's home, and mortally wounded a person the
government was held accountable to pay compensation; the state asserted protection on the basis
that its 'democratic rights' were being operationalised. The Apex Court ruled that the government
was indirectly responsible for the driver's misconduct as it was not fully federal in nature, since
the incident happened while the driver wasn't on duty. Therefore, the court discussed the relevant
evidence of the situation for perhaps the first instance in this situation. The cops detained the
complainant and confiscated some wealth out of him in "Asturian Realia Ram Jain vs. State of
Uttar Pradesh" on apprehension that it was looted assets. The seized goods were kept in the
"makhana" province, but was embezzled by the "Chief Constable", who was in command of the
"makhana." The claimant was cleared of the allegation. The problem that emerged was whether
or not the government was responsible for the Tortious Act. The judge ruled that in the process
of upholding the State duty, the Tortious act was committed; thus, the government is exempt
from the responsibility of the Tortious act.
State Liability Bill, 1967
"Asturian" was responsible for making the activating the legislature. The Judge agreed to bring
in a new statute in light of its judgment. Consequently, the "Government (Liability in Tort) Bill"
was proposed to assess and modify current laws to determine and modify the responsibility of
the State to private entities for the injustices of its employees, officials and contract workers.
That being said, this was never enforced. So, the chances of enshrining the tort law and the tort
law against the government are compromised.
After 1972: Judicial Activism
The definition of government has been shifting from "Laissez- faire" state to "Welfare state" In
contemporary background, the government has taken care of so many different duties. Here, the
liability of the State should be in keeping with its current day position rather than being restricted
to the "laissez-faire" period. Only in the "laissez-faire" period, the separation of the functions of
the state between the roles of "Sovereign" and "non-sovereign" or "Governmental" and "non-
governmental" made sense and was possible to incorporate in action. In principle, there is no
difference between the "sovereign" and the "non-sovereign", it is determined based on reality
and situations only. The Court began keeping the government accountable for private tort
lawsuits even though the state is performing its constitutional duties. In “Uttar Pradesh vs
Hindustan Lever” has questioned the 1956 legislation. Through doing this, they would help the
deficit of central government. Defendant invested money in the "treasury" but this was
misappropriated by some representatives of the "treasury". The SC ruled that if a State performs
constitutional duty, then it would also be liable for tortious action. In short, the court has made
this strong distinction.
Post 1983: Awarding of Damages
The "Art. 21 of the Constitution" ensures that absolutely no one will be denied of their "life or

liberty" except according to constitution. The SC interpreted Art. 21 and found cases for
damages and aided to all those who had been inflected with any hurt or harm. In "Khatri vs. State
of Bihar", it was claimed that some policemen in Patna had impaired some inmates in jail.
According to a court, police was seen to breach "fundamental rights" of the individual. The State
was instructed to provide the injured party with the best healthcare care at government expense,
which was damages given to the aggrieved party. Earlier that year in “Rudal Shah's case”, the
defendant was wrongly held in prison for a period of "14 years" even until he was cleared by the
law court. The courts ordered to pay worth Rs. 35,000 in an appeal under art 32 against the
administration. Similarly, in the case “Bhim Singh v. State of Rajasthan” where a claimant who
was Member of parliament was held in jail to prohibit him from attending the session, the judge
granted him Rs. 50,000/- damages under art. 32. " Saheli vs Commissioner of police" was
another breakthrough in the growth of damages rulings in the Courts. The brilliant judgement of
Miyawaki was cited in this case. The Government was made accountable for the abuse of "nine-
year-old" child by a policeman. The Delhi Government was ordered to pay a compensation of
Rs. 75000. This case is important because first of all, it revived "Miyawaki" ratio and
furthermore was that "Delhi Administration" was permitted to recoup damages from those agents
who are made liable for this case. Another landmark judgement was "Nilabati Behra vs.
Orissa" SC which ruled that State sovereignty did not extend to human rights legal recourse
within Art 32 and Art 226. 'Asturian' is for "private law" matters only. The court granted
compensation to the victims in the case of fabricated occurrence “Kewalpati vs. State of Uttar
Pradesh”. There has been an instance of a Muslim woman raped by a rail worker. The
Apex Court also dismissed the protection of Public Servants Act in against employees by
Transport Authority. As a consequence of the "vicarious liability" principle, the court was
convinced to offer the amount of damages.
Analysis
On the other side, if we turn back to before independence period until the country was “laissez
faire” country, where there was little or no intervention of the state. This is the explanation that
perhaps the court in “P. & O Steam Navigation” was forced to prosecute the suspect and
differentiate among governmental and non-governmental duties of the government bodies. The
division of the governmental and non-governmental roles for the point of enforcing
responsibility on the government. “Prevention is better than cure” was recognised by the judge in
the consequent case of “Hari Bhanji and Cockcraft.” Just before the constitution, the only section
which placed responsibility on the state for its "tortious act" was art 300. The citizens were
pleased as now they will have state for damages. Their confidence in the courts was restored
once the judge passed the verdict in “Vidyawati's case”, ruling that the state is responsible
vicariously when the contractor has been negligent. However, in some cases it was ruled that the
government decides according to the laws to protect its independence. The court also overruled
the decision in the so-called “Miyawaki case” and reiterated the qualifying elements to the State's
liability through the application of statutory law. If "Asturian" case had been overturned or not, it
would still be a contentious feature of Indian "Constitutional jurisprudence". The government
was strongly placed under pressure to involve itself in multiple tasks. These activities are
performed by employees of the government as per instructions. Day-to-day operations of the
employees of the government caused public damages or miseries. It is only normal that the
wrongdoer would have to reimburse the plaintiff for the injury he caused. With using
"compensatory jurisprudence", some changes in the Indian laws have been made which made the
use of courts. So far, the High Court has been awarded a molestation settlement in cases where
the plaintiffs are young women below 21 years of age. The monetary judgement for a case
depends on the seriousness of the case. Remuneration has now become necessary in today's
modern world because of the value. This helps to minimise the recidivism rate and it additionally
reiterates the confidence of people in the justice system. The making of “Rudal Shah” was very
necessary for two reasons. If a statute violates a person’s right to liberty then it provides the basis
for a civil case. This judgment preserved the "constitutional right" of an individual rather than
official and non- government bodies. I find Art 300 ambiguous and vague because it contains no
basic principles for assessing the responsibility of a State for unethical actions of its workers or
agents. There is lack of clarification about how it should be determined. Thus, it is clear that
government is subject to the rule of law. In order to safeguard the equality, the law on "Tortious
liability" should be by courts with governing rules laid down by parliament. Only an autonomous
"public legal tort system" will cause people to be happy. The "Federal Tort Claims Act" doesn't
require the Federal Government to be liable for their acts. It should not completely be focused on
the "Liability in Tort Act, 1967" because the legislation does not wish to attach everlasting
responsibility on the state. In judicial thought, the state is often responsible for illegal and
reckless acts carried out by civil servants. In the "laissez-faire" period, most state operations
were considered a sovereign activity. The problem of non-governmental role was poorly
established.
Conclusion
In the "welfare state", operations conducted by the State have also been attached as to non-
sovereign roles by judicial order. It is not proper for me to question the legal system on this
matter because they always give right judgement. Their decision was based on the level of
governmental development of Nigeria. It's clear that we do not approach prior rulings on
"Tortious Liability" of the state as rulings in current "welfare" age. The other most crucial
element whereby the judiciary should undertake now is to reverse the “Kasturilal's case” in effort
to stop the misinterpretation and ambiguous application of legal principles.
Question 4 Option 2
The meaning of Ombudsman is a public official appointed to investigate individuals’ complaints

and the grievances against maladministration, especially that of public authority. Thus, the
Ombudsman is a grievance officer or Commissioner of Administration. In India ombudsman is
called Lokpal at the centre level and Lokayukta at the State level. If there are gross lapses in the
functioning of the public administration the citizens have the power to lodge a complaint against
the concerned authority. He is an officer of parliament. Administrative Reform Commission
(ARC) felt that the redressal of citizen’s grievances is basic to the functioning of the democratic
governments, and will strengthen the hands of the government in administering the laws of the
land, its policies “without fear or favour, affection or ill-will”, and enable it to go up in public
faith and confidence without which progress would not be possible. It recommended the
appointment of one authority called ‘LOKPAL’ dealing with complaints against the
administrative acts of Ministers or Secretaries to Government at the Centre and in the States and
another authority called ‘LOKAYUKTA’ in each State and at the Centre for dealing with
complaints against the administrative acts of other officials.
Under the pressure of an anti-corruption movement launched by Anna Hazare, the Bill was
passed on December 17, 2013, by Rajyasabha and on December 18, 2013, by Loksabha. The
president of India Shri Pranab Mukherjee gave assent to it on January 1, 2014, and came into
force on January 16, 2014. In 2016 Lok Sabha agreed to amend the Lokpal Act.
The Act seeks to provide for the establishment of Lokpal for the Union and Lokayukta for States
to inquire into allegations of corruption against certain public functionaries and for related
matters. The Act extends to the whole of India, including Jammu & Kashmir and is applicable to
“public servants” within and outside India.
Lokpal Chairman and the Members can hold the office for a term of 5 years or till they attain the
age of 70 years, whichever is earlier. The members and the chairman of Lokpal are appointed by
the president on the recommendation of a selection committee. As per the Lokpal Act of 2013,
the Department of Personnel and Training needs to create a list of candidates who are interested
to become the chairperson or members of the Lokpal. The list was then to be presented to the
proposed eight-member search committee. The committee on receiving the list shortlists the
names and place them before the selection panel, headed by the Prime Minister. The Lokpal and
Lokayukta Act of 2013 also mandates that all states must set up the office of the Lokayukta
within one year from the commencement of the Act.
Section 14 od the act gives jurisdiction of Lokpal extends to Prime Minister, Ministers, Members
of Parliament ,Groups A, B, C and D officers, and Officials of Central Government. The
Jurisdiction extends to the Prime Minister, except in the cases of allegations of corruption
relating to International relations; Security;The public order;Atomic energy and space.They does
not include ministers and members of Parliament in the matter relating to any speeches delivered
in the Parliament or; for a vote cast in the Parliament. Every person who is or has been in charge
(director/ manager/ secretary) of a body or a society set up by the act of central government, Any
society or body financed or controlled by the central government, Any person involved in act of
abetting, Bribe giving or bribe-taking.
The Lokpal and Lokayukta Act states that all public officials need to furnish their assets and
liabilities as well as their respective dependents. The Lokpal also possesses the powers to
superintendence over the CBI. It also has the authority to give direction to CBI. If a case is
referred to CBI by the Lokpal, then the investigating officer in such a case cannot be transferred
without the prior approval of the Lokpal. The powers of a civil court have been vested with the
Inquiry Wing of the Lokpal.
The Lokpal also possesses powers regarding the confiscation of assets, proceeds, receipts, and
benefits arisen or procured by means of corruption in special circumstances. It also has the power
to make recommendations regarding the transfer or suspension of public servants connected with
the allegations of corruption.Lokpal is capable of giving directions to prevent the destruction of
records during the preliminary inquiry. Section 37 of the Act , gives procedure to remove
chairperson or any other member of lokpal.
In spite of all efforts to make this Act successful, there are also some reforms left in this Act and
those are that :
Protect the corrupt: The biggest flaw in the Bill is the Selection of the Lokpal and its members.
Majority of those who will select Lokpal will be from the political class who will have a vested
interest in a weak Lokpal. If the Lokpal is weak, there is no question of curbing corruption. It’s
another way of protecting the corrupt, as per politician’s convenience.
Lokpal's Removal: According to the Bill, Only the government or 100 MPs can complain to SC
if this are satisfied with the Lokpal’s performance. Why have a Lokpal to punish the political
class if its removal is in the hands of the same political class. Rather, any citizen should be
allowed to complain and seek any Lokpal member's removal.
Suspicious Exclusions: The Bill excludes Judiciary. Can’t the judges in the courts be corrupt?
They are also public servants and should be under the purview of this Bill. Also, any decision of
Lokpal to initiate preliminary inquiry or investigation against the PM shall be taken only by the
Full Bench with a “2/3rd majority”. This 2/3rd majority is of the political class itself. No
whistleblower provision: The “Whistleblower” is defined as any person who faces threat of
physical harm or professional harm like illegitimate transfers, denial of promotions, denial of
appropriate perks, departmental proceedings, discrimination or is actually subjected to harm for
making a complaint to Lokpal under this Act or for filing an application under RTI. If they are
not protected, there will be no complaints in fear of such consequences.
Appointment of Lokayuktas: Lokayukta should have been created in the states along the same
lines as the one at the Centre. However, this Bill puts this responsibility on the States. States will
have absolute freedom in determining the nature and type of the institution of Lokayukta. How is
that any different from the State Vigilance Committees, we have today. For example: The Chief
Minister of Punjab is the Minister in charge of Vigilance Department of Punjab. Interestingly,
the same vigilance department is also investigating charges of corruption against himself and his
family and is prosecuting them.
Question 5 Option 1
Gullapalli Nageswara Rao vs. APSRTC
FACTS:
 The appellants, Gullapali and others, for several years, in Krishna District in the State of
Andhra Pradesh, had a motor transport company.
 A new scheme for the nationalization of motor transport in the state of AP was initiated
by the General Manager of the State Transport Undertaking of Andhra Pradesh Road
Transport and was formally notified by the state government with invitation of objections
for the same which were filled by them. On behalf of the government, the Secretary in
charge of the Transport Department heard the complaints. He provided the state
government with the amendments and the scheme was pushed forward. Under a phased
programme, the Andhra Pradesh Road Transport Corporation (hereinafter APRTC), the
respondent continued to introduce the framework.
 Under Article 32 of the Constitution, the appellant filed a petition for annulment of the
said scheme on different grounds. The Court dismissed the majority of the objections,
with the exception of two relating to the hearing given by the Secretary, which resulted in
the government's order being quashed. Upon which The Chief Minister heard the
objections, passed the order and quashed the appellants' grievances. The Authority for
Road Transport has provided permits for the movement of stage carriages and for the
abolition of permits given to private bus operators. The road authority issued orders
making the appellants' permits ineffective and was also ordered to avoid transporting
their buses from D December 25, 1958, in their respective routes.
 The appellant filed a petition in the High Court under Art. 226 of the Constitution,
aggrieved by such decision and still praying for quashing the same which led to the
present case being heard.
RULES APPLICABLE
The following rules are put into application in the present case:
 Section 68-F(2)(c)(i) of Motor Vehicles Act, 1939 (as amended by Act 100 of 1956)
 Madras Government Business Rules and Secretariat Instructions, and Rule 9
 Road Transport Corporation Act, 1950,
 lauses 2 and 3 of Art.166 of the Constitution
 Rule 11 of the Andhra Pradesh Motor Vehicles Rules.
 provisions of the Licensing Act, 1910,
 Art.226 of the Constitution.
 Art.32 of the Constitution
In addition to which the Natural Law principle of audi alteram partem, that derives the
concept of bias in admin functions, is also applied and analysed in deciding the case.
ISSUES AT HAND
There are mainly two issues at hand, that have been dealt by the court in the present case:
1. Whether the actions of the state amounted to violation of principles of natural justice?
2. Whether the actions undertaken by the Chief Minister, accounted for a situation of
official bias?
ANALYSIS
In dealing with the issues at hand out whether such grounds of the appellant questioning the
orders of the Government as well by the order of the Regional Transport Authority shall stand, it
becomes important to consider arguments put forth by both sides
The main contention from in the previous case, by the appellant was that the secretary could not
have resolved the conflicts between the department and the private bus operators on the basis
that, in his own case, the party should not be a judge. The Chief Minister was in charge of the
portfolio, so the disability attached to it should be excluded from hearing objections along with
noting taht speeches and the scheme demonstrate bias in support of the undertaking and in
contradiction of the private operators. The application of the principle of bias along with
violation of natural justice principle was raised.
In respect of official bias
A distinction was made between official authority bias and personal bias. Official bias is when
the authority has the intrinsic powers referred to under the statue, when authority is in favor or
against one side, the levying of legislative obligation and personal bias.
The plain fact that the Chief Minister has a support for the nationalisation policy or the fact that
the scheme was introduced by the government is not enough to debar him for deciding dispute
except it can be proven that he was guilty of personal bias and there is no legal backing. The
significant principles of the doctrine of bias are
(1) man should not be judge of his own cause
(2) justice does not only have to be done but also clearly done.
These two maxims assisted in understanding if the member is subjected to bias supporting or
against any part in dispute. These principles are applicable to authorities even if they are not
justice, tribunals as held in case of M.Koteswara Rao v. Sr.Manager:
Qualified nature of statutory bias
In this case, the key question is whether the statue confers jurisdiction on the authorities and
enforces an obligation to decide a conflict in which there is an official bias. In the case of King v.
Bath Compensation Authority, the application for renewal of the hotel license to the authority
was recommended by the licensing justice field. And solicitor to be appointed to oppose this.
The compensation authority refused the renewal, this was because most of the judges who sat on
tribunal voted against the renewal as they were a part of the resolution denoting question of
renewal. House of Lords held that this decision was to be set aside as 3 members of tribunal
referred matter of resolution, they held that no one can be a party and judge of the same case.
This issues also dealt primarily with whether in his speeches the acts of the chief minister or act
preclude himself from performing for State Government to decide disputes. The appellant stated
that the chief minister made several speeches in which he stated that it was easiest to introduce
the scheme and not to delay it, and several more speeches urging the implementation of the
scheme. It was held by the court that the appellant had not proved whether the speeches were
made by the chief minister. Although it is claimed to have been extracted from the newspapers
but no one has heard the chief minster say or make those speeches. These statements were not
accepted by the chief minister. In consideration, the Andhra Pradesh Vehicles Rule, rule 11 was
on the basis of this rule. The Road Transportation Authority has passed an order making the
permits ineffective without furnishing adequate notice, hence the order was said to be
inacceptable. However, when one reads the rule 11 along with section 68 F (2), it is evident that
order was anticipated under can be made by the Road Transportation Authority. In the case at
hand, the procedure has not been followed. there was no notice given as mentioned under the
rule and there was no notice given to the party who is going to be affected by this before passing
the order.
The court in such light, held that the authority has acted in accordance with the procedure laid
down and no violation of principles of natural justice or manifestation of official bias lies.
CONCLUSION
In conclusion, the court upheld that natural justice principle or official bias wasn’t violated. with
techincal application since the chief minister is not part of the government, he is responsible for
discharging the business of the department he is responsible for, the concept of natural justice
was not violated by the state. The acts and speeches of the chief minister are not prohibited to
him; the appellant does not show the method of discharging functions. However, the procedure
so adopted, by Road Transportation Authority was set aside. This case also set path for a form of
doctrine of necessity application which further developed in later stag
Question 6 Option (c) and (d)
a) Government Privileges not to produce documents:
All courts of law require the documents on the basis of which it has to deliver the judgment. It is
the need of individual that justice should be done by evaluating evidence produced by both the
litigating parties. In India, the privilege of the government to withhold documents from
production in the courts is claimed on the basis of Sections 123 and 124 of the Indian Evidence
Act, 1872 (hereinafter referred to as the IEA).
Section 123 of the IEA provides: Evidence as to affairs of State- No one shall be permitted to
give any evidence derived from unpublished official records relating to any affairs of State,
except with the permission of the officer at the head of the department concerned, who shall give
or withhold such permission as he thinks fit.
Section 124 of the IEA subsequently provides that: Official communications- No public officer
shall be compelled to disclose communications made to him in official confidence, when he
considers that the public interests would suffer by the disclosure.
The above two provisions give the government an upper hand and a great deal of privilege an
advantage against private persons in litigations of any sort. This clearly jeopardizes the basic
tenets of administrative law which stands for ensuring the fairness in the administration of justice
and also that of the IEA. However, the Privilege if claimed is not conclusive in nature, in the
sense that where courts have no option except to admit the documents for which the privilege is
claimed in certain cases. This proposition is based on the legal mandate which is incorporated in
s. 162 of the IEA which says: Production of documents -A witness summoned to produce a
document shall, if it is in his possession or power, bring it to Court, notwithstanding any
objection which there may be to its production or to its admissibility. The validity of any such
objection shall be decided on by the Court.”
It is certain that power of administration has to grow further in future. So with the increase in
government activities, state undertaking several functions which were so far performed by the
individuals. Thus, the interactions of individual increases with the government, causing
sometimes people get aggrieved by government’s action and in order to satisfy their grievances
they resort to the courts. The courts adopt different procedures in the litigation where the
government is one of the parties against the common man in comparison to the suits between
common people. Whenever the matter comes before the courts in India, it decides the claim of
privilege to withhold the documents on the basis of three distinct issues. One is the ‘public
interest’ the other is ‘openness in government’ as part of Article 19(1)(a) of the Constitution of
India (freedom of speech and expression) and the third is within the purview of Article 21
(Protection of life and personal liberty) as interpreted by the Supreme Court .
In the case of State of Bihar v. Kasturbhai Lalbhai the court while explaining the expression
“affairs of the State” said that it means issues that are of :public nature, with which the State is
concerned, or the disclosure of which will be prejudicial to the public service. When the State is
a party to the litigation and documents relate to commercial or contractual activities of the
state…”In such cases privilege can be claimed regarding those documents. By saying so the
court meant that when by suppressing certain documents, the extent to which public interest is
catered to is more than when disclosed, then this privilege of non-disclosure can be claimed.
Further explaining the position in India, the case named State of Punjab v. Sodhi Sukhdev
Singh which was a 1961 case, the court held the following that it: Cannot hold an enquiry into
the possible injury to public interest which may result from the disclosure of the document in
question. This is a matter for the authority concerned to decide; but the court is competent, and
indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its
production, and that necessarily involves an enquiry into the question as to whether the evidence
relates to an affair of state under Sec. 123 or not.”
The court further held in another instance that: “It must be clearly realized… that the effect of
the document on the ultimate course of litigation or its impact on the head of the department or
the minister in charge of the department, or even the government in power has no relevance in
making a claim for privilege under Sec. 123.”Also “the sole and the only test which should
determine the decision of the head of the department is injury to public interest and nothing
else.” The court also held in Sukhdev case that If the document cannot be inspected, its contents
cannot indirectly be proved, but that is not to say that other collateral evidences cannot be
produced which may assist the court in determining the validity of objection.”
In another case called Amar Chand Butail v. Union of India that the head of the department:
Should never claim privilege only even mainly on the ground that the disclosure of the
documents in question may defeat the defence raised by the state. Considerations which are
relevant in claiming privilege on the ground that the affairs of the state may be prejudiced by
disclosure must always be distinguished from considerations of expediency…”
However, in certain cases the courts of law did inspect documents before giving its decision. For
example in the case of State of Kerela v. The Midland Rubber & Produce Co . the court ruled
after going through the documents that the documents had nothing to do with public interest as
such and they were only instrumental in defending the contentions of the State.
A landmark case in the area of determining government privileges in withholding of documents

happens to be State of Uttar Pradesh v. Raj Narain where the judgment of the court was as
follows:
“The several decisions to which reference has already been made establish that the foundation of
the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that
injury to public interest is the reason for the exclution from disclosure of documents whose
contents if disclosed would injure public and national interest. Public interest which demands
that evidence be withheld is to be weighed against the public interest in the administration of
justice that courts should have the fullest possible access to all the relevant materials. When
public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu
exclude evidence the production of which is contrary to public interest. It is in ublic interest that
confidentiality shall be safeguarded. The reason is that such documents become subject to
privilege by reason of their contents. Confidentiality is not a head of privilege. It is a
consideration to bear in mind. It is not that the contents contain material which it would be
damaging to the national interest to divulge but rather that the documents would be of class
which demand protection. .. To illustrate, the class of document would embrace Cabinet papers,
Foreign Office dispatches, papers regarding the security of the State capital and high level inter-
departmental minutes. In the ultimate analysis the contents of the document are so described that
it could be seen at once that in the public interest the documents are to be withheld.”
India is a democratic country, and the basic feature of democracy is transparency. In India many
administrative authorities have a lot of powers hence to make sure this power is not being
misused transparency and openness is very important.
b) RTI Act and recent developments
The right to information act, 2005 is a law which is enacted by the parliament to give the citizens
the right to have access to any records of the state and central government. This act is applicable
to the entire country except the state of Jammu and Kashmir. After the introduction of the RTI
Act on 12th October 2005 the information which the people did not have access to because of the
Official secrets Act 1923 and many other special laws now have access to.
A few features of the act are as follows
1) The public authorities have a duty towards the citizens to provide them with information
as and when they ask
2) The act however does have some exceptions to providing information such as when it
comes to safety of the nation or state or letting out information of some other person. In such
cases the public officials can refuse to let out any information
3) The public authority has to provide the information asked by the citizen within 30 days
4) If the public official refuses to provide the citizen the information asked for, the citizen
can go to the appellant authority. If this also doesn’t work the person can go for the second
appeal which comes under the “central information commission/state information commission.”
This act gives a path to people to access information which at once was kept as a secret.
The chapter I of the act deals with the definitions under this act such as definition of the word
“information”, “state public information officer”, “right to information”, “Public authority”, etc.
chapter II of the acts talks about the obligation of the public officer to maintain books or records
of their work.
Section 8 of the act is an important section since it deals with the “exemption from disclosure of
information”. This section provides an exception to the act, it provides situations where the
public officer is not bound to disclose the information. A few of these instances where the
government isn’t bound to disclose the information are
• Disclosure of any information that would effect the safety, integrity, economic interest of
the nation or any state
• Disclosure of any information that would hamper the relationship between any state or
the nation with any foreign country.
• The disclosure of such information has been forbidden by the court of law and any such
disclosure would lead to contempt of court
• Disclosure of information that has been received in confidence from a foreign nation.
Hence in brief any such information that would cause a breach of the privilege given to the
parliament, endanger life or physical safety of a person, information which would impede the
process of investigation to prosecute the offender, damages the relationship with the foreign
government, which would show the deliberations of the council of ministers, dectetories or other
officers or relates to someone’s personal information and has nothing to do with public activity.
Such cases come under this section.
This act keeps a check on the administrative authorities and how they use their power. The
recognition given to the concept of RTI was given by the Supreme Court two decades before the
act was enacted. In the case of “State of U.P. v Raj Narain ((1975 AIR 865)” the right to
information is essentially connected with the right to freedom of speech which is given under
Article 19 of our constitution. Hence the court in many cases has linked both the rights with each
other.
In the case of “State of U.P. vs Raj Narain case (1975) 4 SCC 428)” the court was of the opinion
that our government is a government of responsibility and all the public officials are responsible
for their actions, however there can be secrets. The citizens of this country have a right to know
about every public act and everything that is done in a public way by the people working in the
public sector. The people are also entitled to know the particulars of all the public transactions.
“Govt. of India vs The Cricket Association of Bengal ((1995) 2 SCC 161.)”
The Supreme Court stated that the right to freedom of speech and expression also includes the
right to acquire information and pass it on. It allows the people of the country to contribute in
debates about the social and moral issues. The right to freedom of speech also includes the right
to education, the right to inform, the right to entertain and educated.
RECENT DEVELOPMENTS OF THE ACT

The RTI amended act was passed by both the houses on July 25 2019. The RTI Act has been the
most successful act of India, which empowers and brings confidence to the common citizens.
Some of the key points of the new amended act are as follows
1) Salary
In the RTI Act of 2005 the salary of the central information commissioner (CIC) was the same as
the salary of Chief election commissioner and the state chief information commissioner (SCIC).
In the amended act the it is provided that the salaries and the term and other conditions of service
be prescribed by the central government.
2) Term
In the 2005 act the term of the Central Chief information commissioner, the state level
information commissioner and the information commissioner was up to 5 years or till the age of
65 whichever came earlier. However now the term will be prescribed by the central government
3) Deductions
It has removed the term that If the CIC or IC’s are going to receive any pensions, that much of
amount should be deducted from their salary. The main of the RTI act of 2005 was to bring
about transparency in the work of the administration, it is a weapon in the hands of the citizen
and can use it to know the work that the public administration is doing. The right to information
is considered as a fundamental right under article 19(1)(a) of the constitution. The purpose of
amending the act was to give more independence to the act a to the important data.
The requirement for “Administrative Inquiry”

It is necessary that certain regulatory organizations and pseudo
judiciaries enforcing regulatory authority are obligated to produce certain initial examination as a
precondition to the practice of such authority such as addressing complaints at a regional
examination until implementing control measures of enforcement of awards within the
“Acquisition of Land Act, 1946” in United Kingdom or under “Sections 5 A” of the "Land
Acquisition Act" (LAA). A scheme of investigation is developed by gathering viewpoints
stakeholders together with necessary evidence, and then making its recommendations to the
decision maker. The measures to be taken at the inquiry that are set down in the law themselves
or in the statute laws. Put simply, if any formal order will be issued, then all parties will be
served warning of the investigation.
One of the tasks of a commission of inquiry is to make sure that the problems are properly
investigated. Such details can be accessed from the “Tribunals and Inquiries Act, 1958.”
Functions of commission of Inquiry

A legislative investigation will be convened if both Lok Sabha and Rajya Sabha conclude it
would be in the national interest.
India also has legal framework of naming a “Commission of Inquiry” to look into issues of
common interest. The Central Government and the State wise Governance will benefit
themselves of the applicable laws of this Statute.
It is because when a statutory resolve is made, then the regulatory agency related is held
underneath a "Commission of Inquiry" established by this Statute. In any non-crisis situation, the
public Authority can nominate a "commission of inquiry".
There is little to ban a subsequent Minister from seeking investigation into the actions of a
previous Administration. There seems to be no mandatory duty to only hear the grievances first
and then then issue an investigation.
Scope of the Functions of a Commission of Inquiry

The "Commission of Inquiry" under the "Act of 1952" is not a legal investigation or a semi
judicial investigation. The main aim of FIDA is to document details and provide advice to solve
the ills identified.
The "Commission" does not have any jurisdictional authority to implement its orders “proprio
vigore”. As mentioned above, the "commission" cannot prosecute the guilty party for previous
actions. It does not have the power to prosecute the guilty person either.
The key object of the investigation may be:
In order to determine evidence for the Municipal Authority to pass laws and regulations relevant
to issues of common interest.
It is okay for an authority to examine evidence for the aim of delivering correct legislation to be
enforced by the authorities.
There is no finality to such matters as ministers are replaced.
In addition, for the Public Service Commission to efficiently enact its powers, it would have
additional authority including the ones that follow:
1. “To collect materials”;
2. “To record its findings on the facts investigated”;
3. “To express its views on the facts so found”;
4. “To recommend future action, as an advisory body”;
5. “To permit inspection of documents produced before it, to a party
appearing in the matter”.
Therefore a "Commission of Inquiry" could not possibly sit to suggest and execute acts that are
duties of the judiciary.
The Apex Court ruled that concerns about the actions of a Member from a "State
Government" are a public matter Parts 3(1) of the "Commission of Inquiry Act, 1952" means
federal as well as state government have the authority there under the Act to name one or more
concurrent Committees to conduct concurrent investigations.
Within Section 7(1) (a) When the state wishes to temporarily suspend a Committee, it does not
have to bear the expense of the Committee under Section 7(1) (a).
There's also no hindrance on the selection of a factual checker-body.
An inquiry without the directive of the appropriate government department can involve serious
misconduct. A non-governmental investigation may in principle be created to solve problems.
Such an inquiry can have to evaluate upon the grounds of the first concepts the scope of its
control. When the examiner falls short of identifying the problems, they can violate specific
federal or state regulations or "common law". If the inquiry includes litigation, correct answers
are also important.
b) Doctrine of Necessity
The term Doctrine of Necessity is a term used to describe the basis on which administrative
actions by administrative authority, which are designed to restore order, are found to be
constitutional. The maxim on which the doctrine is based originated in the writings of the
medieval jurist Henry de Bracton, and similar justifications for this kind of administrative action
have been advanced by more recent legal authorities, including William Blackstone.
In modern times, the term was first used in a controversial 1954 judgment in which Pakistani
Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by
Governor General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton's
maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the
label that would come to be attached to the judgment and the doctrine that it was establishing.
The Doctrine of Necessity has been applied in a number of Commonwealth countries, and in
2010 was invoked to justify administrative actions in Nepal.
What is objectionable is not whether the decision is actually tainted with bias but that the
circumstances are such as to create a reasonable apprehension in the minds of others that there is
a likelihood of bias affecting the decision. The basic rule underlying this principle is that ‘Justice
must not only be done but must also appear to be done’.
Doctrine of Necessity is an exception to Nemo judex in causa sua.
Necessity excludes bias

An adjudicator who is subject to disqualification on account of bias may nevertheless, can
validly adjudicate if:
1) No other person competent to adjudicate is available;
2) A quorum cannot be formed without him; or
3) No other competent tribunal can be constituted.
In such situation the rule against bias has to give way to the necessity. If the choice is between
allowing a biased person to adjudicate or to stifle the action altogether, the choice must fall in
favour of the former, as it is the only way to promote decision-making . Where statute empowers
a particular minister or official to act, he will naturally be the one and the only person who can
do so. There is no way escaping the responsibility, even if he is personally interested. Transfer of
responsibility is, indeed a recognized type of ultra vires . In one case it was unsuccessfully
argued that the only minister competent to confirm a compulsory purchase order for land for an
airport had disqualified himself by showing bias and that the local authority could only apply
local act of parliament . A governor of a colony may validly assent to an act of indemnity for his
own actions since otherwise the act could not be passed at all.
Bias would not disqualify an officer from taking an action if no other person is competent to act
in his place. This exception is based on the doctrine which it would otherwise not countenance
on the touchstone of judicial propriety. The doctrine of necessity makes it imperative for the
authority to decide and considerations of judicial propriety must yield. It can be invoked in cases
of bias where there is no authority to decide the issue. If the doctrine of necessity is not allowed
full play in certain unavoidable situations, it would impede the course of justice itself and the
defaulting party would benefit from it. If the choice is between either to allow a biased person to
act or to stifle the action altogether, the choice must fall in favor of the former as it is the only
way to promote decision-making. Therefore, the Court held that bias would not vitiate the action
of the Speaker in impeachment proceedings and the action of the Chief Election Commissioner
in election matters.
In the USA, the disqualification arising out of bias arises from the due process of the American
Constitution. Therefore, an administrative action can be challenged in India and England. Recent
trends in the judicial behavior of the American Supreme Court also indicate that where the
administrative authority prejudged the issue, the action will be vitiated.
However, the term ‘bias’ must be confined to its proper place. If bias arising out of preconceived
notions means the total absence of preconceptions in the mind of the judge, then no one has ever
had a fair trial, and no one ever will. Therefore, unless the preconceived notions are such that it
has the capacity of biasing the mind of the judge, administrative action would not be vitiated.

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SEMESTER V – TERM END SUBMISSION

SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

Program: BBA LLB (Hons.)

Constitutionality of administrative rulemaking

Constitutional validity of delegated legislation in India

Thus, on the foundation of these interpretations, the court concluded that:

1.) “Section 7 of the Delhi Laws Act, 1912” is valid

1) All laws must be open, clear, unambiguous and prospective in nature:

2) Law must be relatively stable

4) There should be guaranteed independence/ autonomy of the Judiciary

 Appointment of Judges: A key role of appointment of judges is carried out by the

6) There must be easy accessibility to the courts

The division of powers is considered to be structural cornerstone of the constitutional system,

The Governor-General in India is able to sign delegated legislation. In the name of

If indeed the "rule of law" as articulated by Dicey influenced the development of

Government Presidential Form

In the United states, unlike India, wherein the “cabinet” is collectively accountable to Parliament,

The Checks and Balances Theory

Administrative creation and division of powers

The Delegated Laws

Ministerial powers Discretionary powers

It is universally applicable. Subjective satisfaction of the author is

No power to give a different treatment Different treatment is given according to the

Judicial mechanisms to control administrative discretion

1. Control at the stage of delegation of discretion

2. Control at the stage of exercise of discretion

Commissioner of Bihar, (1969) 1 SCC 308, the cane commissioner had the power to

Types of judicial review over administrative discretion

1. Non application of judicial mind

Administrative authorities also tend to impose limits on discretion by self-imposed rules of

3. Violation of fundamental rights

The need for administrative discretion

a) a) Extended interpretation of remedies available against administrative bodies.

Grounds for extended interpretation of remedy

b) Excessive/ abuse of power.

A) Non-application of mind covers the following instance

Modes of seeking such extended remedies:

b) Logic behind relaxing rule of Locus Standi

Importance of relaxed application of Locus standi to Admin law

It proves to be an impediment to a stable system of administrative law when the principle of

c) Exclusion of Judicial Review Clauses

I) Review through writ jurisdiction of the Court

II) Review through filling of civil suits

 Abuse of discretion or powers

After the Constitution came into force

“State of Rajasthan v. Vidyawathi” is a fascinating case of constitutional challenges in the post-

State Liability Bill, 1967

After 1972: Judicial Activism

Post 1983: Awarding of Damages

The "Art. 21 of the Constitution" ensures that absolutely no one will be denied of their "life or

The meaning of Ombudsman is a public official appointed to investigate individuals’ complaints

Gullapalli Nageswara Rao vs. APSRTC

In respect of official bias

(1) man should not be judge of his own cause

Qualified nature of statutory bias

Question 6 Option (c) and (d)

a) Government Privileges not to produce documents:

A landmark case in the area of determining government privileges in withholding of documents