ADMINISTRATIVE LAW

INTRODUCTION
WHAT IS ADMINISTRATIVE LAW?

• LAW RELATING TO ADMINISTRATION- WHAT IS ADMINISTRATION??

• ADMINISTRATION OF THE GOVERNMENT-STATE
 STATE

STATE

LEGSLATURE EXECUTIVE JUDICIARY

 NATURE OF STATE

• WHAT KIND OF A STATE AM I TALKING ABOUT HERE…….

IS IT A WELFARE STATE OR LAISSEZ FAIRE STATE??????...................

WELFARE V. POLICE STATE
CONCEPT OF WELFARE STATE

• A welfare state is regarded as a system wherein a minimum social responsibility for certain
minimum standards of individual and communal welfare are set. In this grandiloquent design a
progressive pattern of society is generally and deservedly envisioned.
• The term 'welfare state' has its origin in the German term 'WHQL FARR STAAT (Welfare
State). American conservatives in United States used welfare measures in Roosevelt regime in
'New Deal' and brought into operational welfare measures like National Assurance, National
Insurance, and National Health Service etc.
• Welfare State is based on equality of opportunity and equitable distribution of wealth.
• Such a government is there from cradle to the grave of the citizens as a ‘parents patriae’
(parent of the nation)-the principle that political authority carries with it the responsibility for
such protection.
 WEFARE STATE: FUNCTIONS

The primary functions of a welfare state are :

• i) To afford equality of opportunity;
• ii) To afford basic standards of living; in keeping with human dignity to all.
The Welfare State is mainly concerned with promoting an all round welfare and
development of the citizens; it is concerned with the wellbeing of the entire nation.
 WELFARE V. LAISSEZ FAIRE STATE

• The ruling gospel of the 19th century was Laissez faire which manifested itself in the theories
of individualism, individual enterprise and self help. The philosophy envisages minimum
government control, maximum free enterprise and contractual freedom.
• But laissez faire doctrine resulted in human misery.
It came to be realized that the bargaining position of every person was not equal and
uncontrolled contractual freedom led to the exploitation of weaker sections by the stronger.
On the one hand, slums, unhealthy and dangerous conditions of work, child labour wide spread
poverty and exploitation of masses, but on the other hand, concentration of wealth in a few
hands, became the order of the day.
 ROLE OF STATE

• It came to be recognized that the state should take active interest in ameliorating the
conditions of poor.
• This approach gave rise to the favored state intervention in and social control and
regulation of individual enterprise.
• The state started to act in the interests of social justice; it assumed a “positive” role.
• In course of time, out of dogma of collectivism emerged the concept of “Social Welfare
State” which lays emphasis on the role of state as a vehicle of socio-economic
regeneration and welfare of the people.
 LAISSEZ FAIRE TO WELFARE : TRANSITION IN THE
ROLE OF STATE

“Thus the growth of administrative law is to be attributed to a change of philosophy as to

the role and function of state. The shifting of gears from laissez faire state to social welfare
state has resulted in change of role of the state.”
ROLE OF ADMINISTRATIVE LAW

“The importance of government, or the extent of the functions assigned it, is not measured
by the amount of legislation which its law-making bodies turn off from year to year, but
rather by the nature of the administrative duties imposed upon it, or by the extent of the
power assigned to its courts.... It is especially the administrative function of government
that the doctrine of Laissez Faire attacks.”
 ROLE OF ADMINISTRATIVE LAW AND GLOBALIZATION

• WELFARE TO LAISSEZ FAIRE STATE AND THE CONSEQUENT IMPACT ON ROLE

OF STATE
• Facilitator to Regulator
• Role of market has increased
• Constitutional philosophy of Socialism is diluted
• Regulatory powers of state has increased
REASONS FOR THE GROWTH OF ADMINISTRATIVE
LAW
• POLICE OR LAISSEZ FAIRE STATE TO WELFARE STATE- CHANGE IN FUNCTIONS OF
THE STATE
• UNPRECEDENTAL DEVELOPMENTS IN SCIENCE AND TECHNOLOGY REQUIRING
EXPERTISE IN LAW AND DECISION MAKING
• SYSTEM OF ADJUDICATION THROUGH LAW COURTS IS NOT FEASIBLE LEADING TO
ADMINISTRATIVE ADJUDICATION
• NEED FOR EXPERIMENTATION, QUICK ACTION AND FLEXIBILITY AND THE
INABILITY OF THE LEGISLATURE TO PASS LAWS IN SUCH QUALITY AND QUANTITY
REQUIRED FOR A MODERN GOVERNMENT
SOURCES OF ADMINISTRATIVE LAW

• Constitutional Law
• Statutes / Legislations
• Delegated Legislations
• Judicial Decisions
THANK YOU
ADMINISTRATIVE LAW
MEANING, DEFINITION AND SCOPE
CONSTITUTIONAL LAW AND ADMINISTRATIVE
LAW
• What is Constitutional Law?
Public Law- Regulating the relationship between the State and the Individual
Definition of Administrative Law:
It is a separate branch of Public Law that deals with fair exercise of power
by all authorities and seek remedies for the redressal of grievances of the
affected individuals.
SOCIAL CONTRACT THEORY – CONSTITUTIONAL LAW
 DEFINITION: HOLLAND

“According to Holland, the constitutional law describes the various organs

of the government at rest while administrative law describes them in
motion.

Therefore according to this view, the structure of the legislative and

executive comes within the preview of the constitutional law but their
functioning comes within the sphere of administrative law.”
DEFINITION: IVOR JENNINGS

“Law relating to administration. It determines the organisation, powers and

duties of administrative authorities.”
Criticism:
• No differentiation between administrative law and constitutional law
• Control mechanism is left untouched
DEFINITION: A.V. DICEY

“Administrative Law relates to that portion of a nations’ legal system which

determines the legal status and liabilities of all state officials, defines the
rights and liabilities of private individuals in their dealings with public
officials, and specifies the procedure by which those rights and liabilities are
enforced.”
DEFINITION: KENNETH CULP DAVIS

“The law that concerns the powers and procedure of administrative

agencies, including especially the law governing judicial review of
administrative action.”
Comments:
• Includes administrative rule-making and adjudication excludes rule-
application
• Control by legislature, higher administrative authorities and public
DEFINITION: UPENDRA BAXI & IP MASSEY

“Protection of the “little man” from the arbitrary exercise of power.”

“Administrative law is the study of pathology of power in the developing society.”
An ideal Definition: IP Massey
“Branch of public law which deals with the organisation and powers of
administrative and quasi-administrative agencies and prescribes the principles and
rules by which an official action is reached and reviewed in relation to individual
liberty and freedom.”
OTHER DEFINITIONS

• The law relating to the control of governmental actions-Wade

• Those rules which are recognised by the courts as law and which relate to
and regulate the administration of the Government- Garner’’

• Instrument of middle class Indian to combat governmental power through

courts- U. Baxi
 NEED FOR ADMINIDTRATIVE LAW: IP MASSEY

• “Profligate and pachydermic administration emboldened by the anaesthetised

public conscience does not hesitate to trample upon the civil liberties of the
people. Thus administrative law adventurists impatient of democratic process
may slip into authoritarianism, making all material growth a pretence for tyranny.
Here comes the need, importance and purpose of administrative law.
“Administrative law thus becomes dharma which conduces to the stability and
growth of society, maintenance of a just social order, and welfare of mankind by
reconciling power with liberty.
CONTN…

• Administrative law has a tremendous social function to perform. Without

a good system of administrative law any society would die because of its
own administrative weightlike a Black Hole-which is a dying neutron that
collapses due to its own gravity.
• Administrative law is a body of reasonable limitations and affirmative
action parameters which are developed and operationalised by the
legislature and the courts to maintain and sustain a rule of law society.
FOUNDATIONS OF ADMINISTRATIVE LAW

1. CHECKING ABUSE OF ADMINISTRSTIVE POWER

2. ENSURING CITIZENS AN IMPARTIAL DETERMINATION OF THEIR DISPUTES BY
OFFICIALS
3. PROTECTING CITIZENS FROM UNAUTHORIZED ENCROACHMENT ON THEIR
RIGHTS AND INTERESTS
4. MAKING THOSE WHO EXERCISE PUBLIC POWER ACCOUNTABLE TO THE
PEOPLE.
 SCOPE OF ADMINISTRATIVE LAW

Administrative law concerns with official action which may be:

• RULE MAKING ACTION OR QUASI-LEGISLATIVE ACTION

• RULE-DECISION ACTION OR QUASI-JUDICIAL ACTION
• RULE APPLICATION ACTION OR ADMINISTRATIVE ACTION
• MINISTERIAL ACTION OR PURE ADMINISTRATIVE ACTION
CONTN…

Procedure of reaching administrative action:

• Through a statute under which the administrative authority is constituted

Study of control mechanism by which administrative agencies are kept within control
• Through writs
• Courts through injunctions, suits etc
• Statutory agencies like ombudsman, Human Rights Commissions etc.
• Public opinion
SCOPE OF ADMINISTRATIVE LAW

1. What sort of powers does the administration exercise?

2. What procedures do administrative authorities following the exercise of
powers of the administration?
3. What are the ways in which administration is kept within those
limitations?
4. What remedies are available to the individual against the illegal actions
of the administration?
THANK YOU……
DOCTRINE OF SEPERATION OF
POWERS
EVOLUTION, NATURE AND SCOPE OF ADMINISTRATIVE
LAW- UNIT 1
WHAT IS SEPERATION OF POWERS?
WHY IS THERE A NEED FOR SPERATION OF POWERS?

According to Wade and Philips separation of powers may mean three different things :-
(i) that the same persons should not form part of more than one of the three organs of
government e.g. the Ministers should not sit in Parliament;
(ii) that one organ of the government should not control or interfere with the exercise of
function by another organ, e.g. the judiciary should be independent of the Executive or
that Ministers should not be responsible to Parliament; and
(iii) that one organ of the government should not exercise the functions of another, e.g.
the Ministers should not have legislative powers.
PURPOSE OF SOP: CONTROL OF EXERCISE OF POWER EXCLUSIVELY
CONTN….

• According to Blackstone “if the legislative, the executive and the judicial functions were
given to one man, there was an end of personal liberty. “

• According to Madison: "The accumulation of all powers, legislative, executive and judicial,
in the same hands, whether of one, a few or many and whether hereditary, self-appointed
or elective may justly be pronounced the very definition of tyranny."
 EVOLUTION OF SEPERATION OF POWERS

THEORY OF SEPERATION OF
POWERS

ANCIENT MODERN
THEORY THEORY

PLATO ARISTOTLE POLYBIUS LOCKE MONTESQUIEU

MIXED REGIME OF ANCIENT ERA
TYPES OF GOVERNMENT

• https://prezi.com/o9q3ptcmciv0/monarchy-aristocracy-tyranny-democracy-in-ancient-
athens/
POLITICS BY ARISTOTLE- MIXED GOVERNMENT

• Aristotle was the first constitutional theorist to argue normatively for the idea of a
Mixed Regime. Aristotle categorized constitutional arrangements according to which
social class held power. A government of one person was a monarchy or a tyranny, a
government of a few people was an aristocracy or an oligarchy, and a government of all
the people was a commonwealth democracy or a situation of mob rule.
• Each of the three forms of government had an ideal state and a corresponding degraded
state. Aristotle identified a Mixed Regime where power was shared by the One, the Few,
and the Many as being the best regime that would often be realistically obtainable
CONTN…

• Aristotle may have anticipated the separation of powers when he wrote

that “[a]ll constitutions have three parts.

One of the three deliberates about public affairs; the second concerns the
offices ; . . . and the third is what decides lawsuits.” He never really develops
this insight nor does Aristotle talk about the importance of keeping these
three functions separate and balanced with one another
 MIXED REGIME- ANCIENT GREECE-POLYBIUS

• The theory of mixed government originated with ancient thought and the
classification of different political systems on the basis of whether One, a
Few or Many ruled. According to this argument, the three basic types of
polity - monarchy. aristocracy and democracy - were all liable to
degenerate into tyranny. oligarchy and anarchy respectively.
• This corruption stemmed from the concentration of power in the hands
of a single person or group, which created a temptation to its abuse in
arbitrary or self-interested rule.
CONTN….

• The solution which received its canonical expression in book VI of

Polybius’s Histories. was to ensure moderation and proportion by
combining or mixing various types.

• As a result, the virtues of each form of government, namely a strong

executive, the involvement of the better elements of society, and popular
legitimacy, could be obtained without the corresponding vices`
CONTN….

Criticism:
1. Polybius’s conception of mixed government did not involve ‘normative
ideas of a necessary differentiation of governmental functions.
2. Its prime purpose was to ensure that the exercise of political power
reflected the ‘natural’ balance of the different social classes and interests
within the political ‘body’, and to provide mechanisms whereby each could
check the other.
CONTN…

• In the thirteenth century, Thomas Aquinas, the scholastic theologian, favored a mixed
government, with monarchic, aristocratic, and democratic elements; and distinguished
executive and legislative power, but not as completely isolated from each other, the
monarchic being preponderant.
• During the middle ages political power was restricted and widely distributed, but on no
definite principles. Kings, counts, and other authorities exercised at the same time
administrative and judicial, civil and military functions; and the feudal assemblies or
councils were at the same time legislative and judiciary.
CONTN….

• A philosophical basis for this tendency was formulated in the sixteenth century by the
French writer Bodin, who supported the doctrine of a single ultimate sovereignty, and
opposed its division between independent authorities. Yet Bodin also urged the
importance of a separate body of judicial magistrates distinct from the ruling power.
 MONARCHY IN ENGLAND

• There was concentration of power in the Kings

• Existence of the concept of Divine Right of Kings
• Centralization of power demanded the arrangement of equating the crown with the
state, with executive, legislative and judiciary powers all put into the hands of the
monarchy that became the personified representative of the state.
• The English Parliament passed in 1533 the Act in Restraint of Appeals, proclaiming that
the king had “plenary, whole, and entire power”, and that the “body politic, compact of all
sorts and degrees of people, divided in terms, and by names of spirituality and
temporality” ought to “bear a natural and humble obedience” unto the king.
CONTN….

• The English aristocracy launched the “Glorious Revolution”, overthrew the absolutism of
the restoration and established a new political structure with the parliament as the
center of power. With this structure, the monarch lost real power which in fact had been
transferred into the hands of scores of nobles and a few dignitaries who could
manipulate a parliamentary majority.

• The English system soon became a model imitated by other European countries because
it was accompanied by the rapid economic growth. In the first half of the 18th century,
Britain had a stable government, which guaranteed a smooth development of economy.
ENGLISH PARLIAMENTARY SYSTEM- EARLY FORM

• In England, the development of Parliament brought into existence a dual system, but
without a clear line of demarcation between the two authorities. In the constitutional
conflict of the seventeenth century, theoretical writers on both sides upheld the principle
of an ultimate final authority, differing only on the question whether that authority should
be the Crown or Parliament.
• The result of the contest was to establish the political supremacy of Parliament; but the
system of -government which continued differentiated to a large degree the executive
authorities from the legislative; and after a few years (in I701) the judiciary became in
effect independent of the Crown.
LOCKE AND SEPERATION OF POWERS

Locke distinguished between what he called :

• (i) Discontinuous Legislative Power;
• (ii) Continuous Executive Power;
• (iii) Federative Power;
He included within 'discontinuous legislative powers' rule-making powers called into action
from time to time and not continuously.
'Continuous executive powers' included all those powers which we now call executive and
judicial.
By 'federative powers' he meant the powers of conducting foreign affairs.
 LOCKE AND SEPERATION OF POWERS

• At this time the triple division of governmental powers again appears in theoretical discussion.
John Locke, in his Two Treatises of Government (1689), recognized three classes of power as
legislative, executive, and federative.
 Executive power referred to the work of internal affairs, including the judges and the justices
of the peace, who at this time besides judicial duties controlled almost the whole of local
administration.
 Federative power had to do with external affairs,-"war and peace, leagues and alliances." But
while he considered these three powers to be distinct, Locke did not consider it necessary to
place them in the hands of independent authorities.
The legislative power was the supreme power; while the executive and federative powers
should be under one control, since they could hardly be separated and placed in different hands.
 MONTESQUIEU-SEPARATION OF POWERS

• Esprit des Lois (1748) He named the three divisions legislative, executive in inter-
national affairs (federative), and executive in civil affair,-the last two more briefly as
executive and judicial.
CONTN…

“The separation of the various powers was indispensable to civil liberty: "When the
legislative and executive powers are united in the same person or body, there can be no
liberty, because apprehensions might arise lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical manner.
There is no liberty if the judicial power be not separate from the legislative and executive.
Were it joined with the legislative, the life and liberty of the subject would be exposed to
arbitrary control, for the judge would then be the legislator. Were it joined to the executive
power, the judge might behave with the violence of an oppressor.
There would be an end of everything if one man or one body, whether of princes, nobles,
or people, exercised these three powers; that of making the laws, of executing the public
resolutions, and of judging the cases of individuals."
THANK YOU…..
SEPARATION OF POWERS
IN INDIA
UNIT 1
SOP- OVERVIEW
SEPERATION OF POWER IN INDIAN CONSTITUTION

• “Executive power of the Union shall be vested in the President”- Article 53(1)
• “Executive power of the State shall be vested in Governor”-Article 154(1)
• “Exclusive law making power for Centre and States”-Article 246 (1) (2) (3)
• “Separation of Judiciary form the Executive”- Article 50
• “These provide that the legislatures cannot discuss the conduct of a judge of the
Supreme Court or High Court” -Articles 121 and 211
• “The President and Governors enjoy immunity from court proceedings”-Article 361.
 LAW MAKING AND JUDICIAL POWER OF THE
EXECUTIVE
LAW MAKING POWER
• Promulgation of Ordinance- Article 123 (1)
• Legislative Power during Emergency-Article 357
JUDICIAL POWER
• Removal of Judges of SC – Article 124 (4)
• Appointment of Judges-Article 124 (2)
 JUDICIAL POWER OVER EXECUTIVE LEGISLATIVE
POWER
• The judiciary has the power of judicial review over the actions of the executive and the
legislature.
• The judiciary has the power to strike down any law passed by the legislature if it is
unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights) and
Schedule 9
• It can also declare unconstitutional executive actions as void
• Judicial Activism and Judicial Self - Restraint
 CASE LAWS

• In Ram Krishna Dalmia v. Justice Tendolkar reported in AIR 1958 S.C. 538 at p. 546, Hon’ble
Chief Justice S.R. Das opined that in the absence of specific provision for separation of
powers in our Constitution, such as there is under the American Constitution, some such
division of powers legislative, executive and judicial- is nevertheless implicit in our
Constitution.
• The Hon’ble Supreme Court in Ram Jawaya Kapoor V State of Punjab held that the Indian
Constitution has not indeed recognized the doctrine of separation of powers in its absolute
rigidity but the functions of the different parts or branches of the government have been
sufficiently differentiated and consequently it can be very well said that our Constitution does
not contemplate assumption by one organ or part of the state of functions that essentially
belong to another.
CONTN…

• Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 at p. 2470, Hon‟ble Justice
Chandrachud observed: “The American Constitution provides for a rigid separation of
governmental powers into three basic divisions the executive, legislative and judicial. It is
essential principle of that Constitution that powers entrusted to one department should
not be exercised by any other department. The Australian Constitution follows the same
pattern of distribution of powers. Unlike these Constitutions, the Indian Constitution
does not expressly vest the three kinds of power in three different organs of the State.
But the principle of separation of powers is not a magic formula for keeping the three
organs of the State within the strict confines of their functions.”
CONTN…..

• In Hari Shankar Nagla v. State of M.P.16 It was observed:

“The Legislature cannot delegate its function of laying down legislative policy in respect
of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of
the law and the legal principles which are to control any given cases and must provide a
standard to guide the officials or the body in power to execute the law. The essential legislature
function consists in the determination of the choice of the legislative policy and of formally
enacting that policy into a binding rule of conduct.”
Virtually, absolute separation of powers is not possible in any form of Government. In
view of the variety of situations, the legislature cannot fore-see or anticipate all the
circumstances to which a legislative measure should be extended and applied. Therefore,
legislature is empowered to delegate some of its functions to administrative authority
(executive). But one thing is notable that legislature cannot delegate its essential legislative
power.
 AMERICAN CONSTITUTION

In American Constitution we find that legislative, executive and judicial powers are vested in
separate entities.
• Section 1 of Article 1 declares: “All legislative powers herein granted shall be vested in a
Congress of the United State”.
• Section 1 of Article II says: “The executive power shall be vested in a President of the
United States of America.”
• Section 1 of Article III reads: “The judicial power of the United States, shall be vested in
one Supreme Court and in such inferior courts as the Congress may from time to time
ordain and establish.....”
SOP- OVERVIEW
THANK YOU
RULE OF LAW
UNIT-1
 THE CONCEPT OF RULE OF LAW

La principe de legalite v. Quod principi placuit legis habet vigorem

Principle of legality v. the sovereigns will as the force of law

 ORIGIN OF THE CONCEPT

SOCRATIC PERIOD- RULE OF LAW

• Aristotle-Rule of Law was identified with reason and the rule of man identified with
passion is at the core of the Rule of Law, to explain why the government should be
bound by law as a means to prevent arbitrary rule and abuse of power.

• In Book III of his Politics, Aristotle used the concept of the common good to distinguish
several good and corrupt constitutions, or forms of government. On his account,
“whenever the one, the few, or the many rule for the common benefit, these
constitutions must be correct”
• Aristotle said…..
“And the Rule of Law, it is argued, is preferable to that of any individual. On the same
principle, even if it be better for certain individuals to govern, they should be made only
guardians and ministers of the law…therefore, he who bids the law rule may be deemed to
bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for
desire is a wild beast, and passion perverts the minds of rulers, even when they are the best
of men. The law is reason unaffected by desire.”
• Plato-Government should be subservient to the law
• Both of them said “the law must be promulgated for the common good”
CONTN….

GREEK WORKS- RULE OF LAW

• Cisero- Laws must be for the good of the community as a whole, thereby subjecting law to the ideals of
justice
• he pointed out that the good of the people is the highest law of the state. Cicero referred to the
common good as salus populi, which literally translates as “safety of the people” but is commonly
understood to refer, more generally, to their “welfare” or “wellbeing”.
• Cicero also reflected on this subject in On the Republic where he noted that res publica is a “thing of
the people”. As he further specified, “a people” does not mean any kind of association, but is “an
assemblage of people in large numbers in agreement with respect to justice and a partnership for the
common good [utilitatis communion]”.
• Thus, Cicero invoked a particular conception of the common good to distinguish republics (or states
more generally) from other kinds of human association. He argued that, in republics, individuals do not
pursue only their mutual advantage, but are also united by their agreement on principles of justice
that govern their mutual relations
CONTN….

ENGLAND
• Thomas Acquinas- Summa Theologicae. Aquinas defines a law as "an ordinance of reason
for the common good, made by him who has care of the community, and promulgated."
Law is an ordinance of reason because it must be reasonable or based in reason and not
merely in the will of the legislator.
• Yet, Aquinas was not only concerned with the flourishing of particular political societies,
but also conceived of humans as part of a universal moral order. In contrast with ancient
Greek and Roman theorists, however, he identified the common good with God.
• Consequently, Aquinas held that knowledge of the common good is available to Christian
believers through revelation. In his words, “the good of the whole universe is that which
is apprehended by God, Who is the Maker and Governor of all things”.
CONTN…

• Magna Carta –King was bound by the law- “No free man shall be seized or imprisoned,
or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing
in any other way, nor will we [the King] proceed with force against him, or send others
to do so, except by the lawful judgement of his equals or by the law of the land.”
• The justification for this clause was that the King was at all times entitled to have an
account of why the liberty of any of his subjects was restrained.
CONTN…

• John Locke- Father of Liberalism- Liberty means to be free form restraint and violence
with law playing a role in preserving and enlarging this freedom.
• Two Treatises of Government- “Social Contract”- Under this arrangement, “the
government derives its legitimacy from popular consent and individuals delegate to the
government the power to make, execute and enforce laws in the common good.
• These laws should be enacted in the interests of the majority by a legislature that is
separate from the executive and promulgated so that individuals are able to determine
the extent of their duties.”
CONTN….

• Montesquieu- L’Esprit des Lois “Montesquieu formulated a theory for the separation of
powers as a means to prevent governmental abuse and preserve liberty, which he defined
as “the right of doing whatever the laws permit”. In his view, “power should be a check to
power” and so that the legislative, executive and judicial functions of government should
all be held in separate hands.”
• In his view, the judiciary should be independent from the other two branches of
government. To him, expense and burden of the judicial process was a price worth paying
for liberty.
CONTN….

• Montesquieu provided the most widely followed contribution. He suggested that countries
should elaborate constitutions as fundamental charters containing the original will of the
people to be governed.
• He also underlined the importance of the separation and balance of powers between the
legislative, the executive, and the judiciary when he stated that: When the legislative and the
executive powers are united in the same person . . . there can be no liberty; because
apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to
execute them in a tyrannical manner. . . . Again there is no liberty, if the judicial power be not
separated from the legislative and executive. Were it joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary control; for the judge would be then the
legislator. Were it joined to the executive power, the judge might behave with all the violence
of an oppressor.
CONTN….

UNITED STATES
• In the Federalist Papers “Alexander Hamilton, James Madison and John Jay argued for a
representative democratic form of government with a multiple layers of divisions
incorporating the vertical separation of powers between the federal and state levels and the
horizontal separation of legislative, executive and judicial functions at the federal level, with
the legislature further divided between upper and lower houses.
• Further safeguards were provided by giving the courts the power to control the
constitutionality of enacted legislation by way of judicial review. This complex constitutional
arrangement was intended to ensure that no particular group in society could exert undue
influence on the levers of state power and thereby minimize the scope for their abuse.”
CONTN….

• With the emergence of the notion of the rights of individuals, i.e. the idea that individuals
were entitled to certain rights of which they could not be deprived of either by the actions of
government or by the actions of other individuals. This notion of individual rights, now known
as human rights, was above all brought to fruition in the American Declaration of
Independence in 1776.
“It proclaimed that all men were born free and equal and that the right to life, liberty and the pursuit of
happiness were among those rights that are unalienable. That document declared: We hold these truths
to be self-evident, that all men are created equal, that they are endowed by the Creator with certain
unalienable rights, that among these are life, liberty and the pursuit of happiness, to secure these rights,
governments are instituted among men, deriving their just powers from the consent of the governed.”
CONTN….

ENGLAND
• According to Coke, the common law “is the surest sanctuary that a man can take, and the
strongest fortress to protect the weakest of all,” and the objective application of the
common law by the courts provides individuals with “a birth right” or protection that
enables everyone to be free and keep safe his life, honor, family, and patrimony.
• It took a civil war, abolition of the Court of Star Chamber, (the Bill of Rights Act of 1689),
and the establishment of the succession to the English throne, before English law made
the monarchy subject to the law. The Crown was thereafter forced to govern through
Parliament and the right of individuals to be free from unlawful interference in their
private affairs was established.
CONTN…

• At the same time, the procedure for habeas corpus was being developed as a remedy,
writ, or legal action through which a person could seek a relief by the judicial power from
unlawful detention. In particular, by means of “the writ of Habeas Corpus ad
subiciendum,” the court could order that a prisoner be taken before the court in order
to determine whether a prisoner had been lawfully detained or should be released.
THANK YOU….
RULE OF LAW- A.V.DICEY
UNIT 1
 RULE OF LAW- OVER AGES

Ancient Rome Medieval Enlightenment Era

Law of Rousseau Locke

Law of God
reason/natural law Hobbes

Common Good Common Good Montesquieu

 CONCEPT OF RULE OF LAW- A.V. DICEY

• The phrase “rule of law” only entered common parlance in the nineteenth century
• His Introduction to Study of the Laws of the Constitution (1885) provides the first major
explanation of what the rule of law entails in a liberal democracy.
• The Law of the Constitutions: “the rule of law means the absolute supremacy or the
predominance of the regular law as opposed to influence of arbitrary power and
excludes the existence of arbitrariness or wide discretionary authority on the part of the
Government.”
 LAW OF THE CONSTITUTION

• The United States and France were the examples he drew most frequently on to
contrast by illustration with the principles of the British constitution.
• Dicey developed a conceptual structure that defines the political and legal constitution of
democratic government as we know it.
• https://files.libertyfund.org/files/1714/0125_Bk.pdf - Introduction to the Study Law of the
Constitutions
 RULE OF LAW

• The "Rule of Law" ensures that leaders, who were elected by the people and whom were given the
power and authority by the people, always act in the best interest of those people. Dicey, however,
warned that the law must be followed by all, as people in power often thought that they were “above the
law.” Dicey argued that the inner tendency of all people in power is to satisfy their personal needs out of
public resources. He thus insisted that “no person is above the law and it is law that rules all.”
He said:
• [E]very official, from the Prime Minister down to a constable or a collector of taxes, is under the same
responsibility for every act done without legal justification as any other citizen. The Reports abound with
cases in which officials have been brought before the courts, and made, in their personal capacity, liable
to punishment, or to the payment of damages, for acts done in their official character but in excess of
their lawful authority. [Appointed government officials and politicians, alike]…and all subordinates, though
carrying out the commands of their official superiors, are as responsible for any act which the law does
not authorize as is any private and unofficial person (Dicey [1885] 2006).
BACKGROUND

• https://oll.libertyfund.org/pages/dicey-his-life-law-of-the-constitution
HOW DOES ONE KNOW, ACTUALLY AND CONCEPTUALLY, THE
ENGLISH CONSTITUTION AND ENGLISH CONSTITUTIONAL LAW?

• In the Law of the Constitution Dicey answers these questions by stipulating three
descriptive principles of law around which he organizes the book: the legislative
sovereignty of Parliament; the rule of law; and the dependence in the last resort of the
conventions of the constitution on the law of the constitution.

• He states these principles with such force and clarity that they remain today the starting
point for any contemporary discussion of constitutional rules and of limitations of
governmental powers.
CONTN….

• In France, under the provisions of droit administrative, the government and its officials
had special rights against private citizens and were to a great extent free from the
jurisdiction of the ordinary courts.
• Dicey saw that the rights of the citizen were potentially endangered by discretionary
executive authority, because he equated discretion with arbitrariness, which meant that it
was not subject to the rule of law.
• He claimed “discretionary authority on the part of the government must mean insecurity
for legal freedom on the part of its subjects.… In this sense the rule of law is contrasted
with every system of government based on the exercise by persons in authority of wide,
arbitrary, or discretionary powers of constraint.”
CONTN….

By the rule of law he means:

1) the absence of arbitrary or discretionary power on the part of government;
2) every man is subject to the ordinary law of the land administered by ordinary and
usual tribnals;
3) the general principles of law, the common law rules of the constitution, in
contradistinction to the civil law countries of Europe, are the consequences of rights of
the subject, not their source.
 CONCEPT OF RULE OF LAW- FIRST PRINCIPLE

SUPREMACY OF LAW
Everyman shall be governed by Law, absence of discretionary power

Firstly, the rule of law demands that no person should be subject to punishment except for a
breach of a pre-established law, and it is the ordinary courts that are the proper venue for
determining whether such a breach of law has occurred. The rule of law is therefore
incompatible with the “exercise of wide, arbitrary or discretionary powers of constraint” by
government officials.
 CONCEPT OF RULE OF LAW- SECOND PRINCIPLE

EQUALITY BEFORE LAW

“equality before law and equal subjection of all classes to the ordinary law of
land to be administered by the ordinary law courts”
Secondly, under the rule of law everyone is equal in the eyes of the law.
This implies that government officials should not enjoy special immunities (save for the
monarch) and should be held accountable for their actions before the ordinary courts and
should be governed by the law passed by the ordinary legislative organs of the state.
 CONCEPT OF RULE OF LAW- THIRD PRINCIPLE

PREDOMINANCE OF LEGAL SPIRIT

Thirdly, at least in the United Kingdom where there is no comprehensive written
constitution, the rule of law flows from the judicial recognition of individuals’ rights.
This aspect of the rule of law consists in the array of legal safeguards that protect
individuals from arbitrary action taken by government, with the courts empowered to act
as the custodians of those safeguards.
The rights of the people must flow from the customs and traditions of the people
recognised by the courts in the administration of justice.
CONTN….. THIRD PRINCIPLE OF RULE OF LAW

• With us the law of the constitution, the rules which in foreign countries naturally form
part of a constitutional code, are not the source but the consequence of the rights of
individuals, as defined and enforced by the courts; . . . the principles of private law have . . .
by the action of the courts and Parliament so extended as to determine the position of
the Crown and its servants; thus the constitution is the result of the ordinary law of the
land."
 DICEYS CRITIQUE

• The first, and perhaps most trenchant, is that the Dicean formulation is merely a
reflection of the laissez-fairism of the Whig tradition in which Dicey was working in the
mid to late nineteenth century.
 QUESTIONS TO CONSIDER

• Do we have Rule of Law in India?

• What are the main judgments on the concept of Rule of Law?
• What are the pre-requisites for ensuring Rule of Law?
• What are the developments after Dicey’s formulation?
• Is it part of the Basic Structure Principle?
THANK YOU…
LEGISLATIVE POWERS OF ADMINISTRATION
UNIT 2
 INTRODUCTION

 What are legislative powers of Administration?

 Does this contradict the principle of separation of powers?
 What is the need for ‘delegated legislation’?
 What are the various types of rule- making power?
 How rule making power is put under control?
 What do you mean by the ‘doctrine of ultra vires’?
 Can essential legislative functions be delegated?
 What are Parent Acts?
 Are delegated legislation part of the Parent Act?
 What is the doctrine of ‘Proportionality’?
NEED FOR ADMINISTRATIVE RULE MAKING

 Emergence of the concept of Welfare State

 Technical Nature of the Legislations

 Viability and scope for experimentation

 Administrative technicalities and overburdening involved in law making by the

legislature

 Crisis Legislation

 When discretion is required in government action

 CONSTITUTIONALITY OF ADMINISTRATIVE
RULE MAKING
Delegated Legislation
That which proceeds from any authority other than sovereign power and is therefore
dependent for its continued existence and validity on superior or supreme authority.”

When is delegated legislation permissible?

It is permissible only when the legislative policy is adequately laid down and the delegate
is empowered to carry out the policy within the guidelines given by the legislature.
https://tcw.nic.in/Acts/MTP-Act-1971.pdf
What is legislative policy?
The legislative model used to tackle a certain issue via legislation. It is reflected in the
preamble, objectives and scheme of the Act, factual and circumstantial background
CONTN….

 Delegation of legislative power is mandatory

 There has to be limit on the legislative powers of delegation
What are the permissible limits of delegation?
LIMITS OF DELEGATED LEGISLATION

 Pre-Independence Position
R v. Burah ILR (1879) 4 Cal 172
i. Only conditional legislation is permitted
ii. No limits on delegation of legislative powers.
Jatindra Nath Gupta v. Province of Bihar AIR 1949 FC 175
Power to modify an Act and extending the life of the Act is not an essential
legislative function.
Excessive Delegation- What are the limits of Delegation : Is it the American
Model or the British Model that India is following?
In England, parliament has conferred wider legislative powers on the
executive. In US due to the doctrine of separation of powers, legislative powers
cannot be delegated and there is distinction between “legislative powers”
and the power to “fill in the gaps.”
In Re Delhi Laws Act, 1912 AIR 1951 SC 332
Presidential Reference- Article 143 of the Indian Constitution

 Section 7 of Delhi Laws Act, 1912- Power was extended to the provincial
government for extending of Laws to Delhi Area any law in force in British India.
 Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947delegated power to
the province of AM any law in force in any other province with modifications and
restrictions.
 Section 2 of the Part C States (Laws) Act, 1950- The Central government could
extend to a Part C state any law in force in a Part A State (and not by the
Parliament) at any time (after 1950 as well) and even modify the law before
extension. If there is any existing law it could be repealed or modified by the
Government when the law was being extended.
 MAJOR HIGHLIGHTS

1. That part of it was bad which authorised the Government to repeal a law
already in force in a Part C.
2. The power to effect modification in a State Law in its application to a Part
C State envisaged only such modifications as did not change the
underlying policy of the sought to be extended.
The Delhi Laws Act case achieved two ends:
1. It legislated delegation of legislative power by the Legislature to
administrative organs
2. It imposed an outer limit on delegation by the Legislature. No Indian
legislature can delegate unlimited legislative power to the Administration. If
delegation is too broad, the Courts can declare the same as excessive and
hence invalid.
CONTN….

 The Doctrine Separation of powers is not a part of the Indian Constitution

 Indian Constitution was not an agent of anybody and therefore, the
doctrine of delegatus non protest delegare has no application.
 Parliament cannot abdicate or efface or abdicate itself by creating a
parallel legislative body.
 Power of delegation is ancillary to power of delegation
 The limitation on delegation of power is that the legislature cannot part with
its essential legislative power that has been expressly vested in the
Constitution. Essential legislative power means laying down the policy of
the law and enacting that policy into a binding rule of conduct.
 Two approaches

First Approach
 Indian Legislature could delegate its power to any extent subject to the limit
that it did not efface itself, r abdicate its powers which meant that the
legislature should never give up its control over the delegate that it must not
destroy its own legislative power; that it must retain in its hands the ultimate
control over the authority so as to be able to withdraw the delegation
whenever the delegate did something wrong or foolish.
Second Approach
 The legislature should not delegate the essential legislative function which
comprised of the formulation of policy and enacting it into a binding rule of
conduct. It means that the legislature should lay down standards or policy in the
delegating Act and the delegate may be left with the power to execute the
policy.
 Delegation is valid only when it is confined to legislative policies and guidelines.
A delegate must exercise its jurisdiction within the four corners of its delegation.
 THE DOCTRINE OF EXCESSIVE DELEGATION

“The legislature can delegate its legislative power subject to its laying down the policy.
The legislature must declare the policy of the law, lay down legal principles and provide
standards for the guidance of the delegate to promulgate delegated legislation,
otherwise the law will be held bad on account of “excessive delegation. In applying the
test of delegated legislation the courts also examine the procedural safeguards
contained in the Act against the misuse of power.”
 Gwalior Rayon Mills v. Asst. Commissioner of Sales
Tax
 In this case, the question of the extent to which the executive could exercise functions
delegated to it by the legislature in its role as a tax collector was given some finality.

MATHEW J: “So long as the Parliament retains the power to repeal the delegating provision, it
does not abdicate its legislative function and therefore there should not be objection to
delegation howsoever broad its extent.”

KHANNA J: “Our constitution makers have entrusted the power of delegation to the
representatives of the people, so that the said power may be exercised not only in the name of
the people but also by the people speaking through The rule against excessive delegation of
the legislative authority flows from and is a necessary postulate of the sovereignty of the
people. The rule contemplates that it is not permissible to substitute in the matter of legislative
policy the views of the individual officers or other authorities, however competent they may be
for that of the popular will as expressed by the representatives of the people.”their
representatives.
 VALIDITY OF DELEGATING PROVISION
 SKELETON LEGISLTION
Case: Ravi Sankar Bagla v. State of Madhya Pradesh (1954)
https://www.lawyerservices.in/Harishankar-Bagla-and-Another-Versus-State-of-Madhya-Pradesh-1954-05-14
 POWER OF INCLUSION AND EXCLUSION, AMENDMENT OF SCHEDULE
Case: Edward Mills Co. v. State of Ajmer (1955), Humdard Dawakhana Wakf v. Union of India 1960
https://www.lawyerservices.in/Edward-Mills-Company-Limited-Beawar-and-Others-Versus-State-of-Ajmer-and-
Another-1954-10-14
 POWER OF EXCEMPTION AND MODIFICATION OF THE STATUTE
Case: AN Parasuraman v. State of TN, Baburam Jagdish Kumar & Co. v. State of Punjab (1979)
https://www.lawyerservices.in/A-N-Parasuraman-and-Others-Versus-State-of-Tamil-Nadu-1989-10-05
https://www.lawyerservices.in/Hamdard-Dawakhana-Wakf-Lal-Kuan-Delhi-and-Another-Versus-Union-of-India-and-
Others-1959-12-18
 REMOVAL OF DIFFICULTIES
Case: Central Inland Water Corporation v. BN Ganguly (1986)
https://indiancaselaws.wordpress.com/2013/01/29/central-inland-water-v-brojo-nath-ganguly-and-anr/
 POWER TO IMPOSE TAX
Case: Orient Weaving Mills v. Union of India (1963)
https://www.lawyerservices.in/Orient-Weaving-Mills-Private-Limited-Versus-Union-of-India-1962-02-28
THANK YOU……
CONTROL OVER
DELEGATED LEGISLATION
UNIT 2
TYPES OF CONTROL

Parliamentary Control
Direct Control
• Direct General Control
• Direct Special Control
Indirect Control
PARLIAMENTARY CONTROL

• US – LIMITED CONTROL PREDOMINANCE OF JUDICAL CONTROL

• UK- PARLIAMENTARY SOVEREIGNTY PREVAILS
• INDIA- EXECUTIVE IS RESPONSIBLE TO THE PARLIAMENT
DIRECT GENERAL CONTROL

• Through debate on the Act which contains delegation

• Through questions and notices: Section 59 of Procedure and Conduct of Business in
Rajya Sabha/Lok Sabha Rules
• Moving resolutions and notices
DIRECT SPECIAL CONTROL

“Laying on the table of the Rules and Regulations framed by the administrative authority”
• Laying with no further directions
• Laying with negative resolution
• Laying subject to affirmative resolution
• Laying in draft subject to negative resolution
• Laying in draft subject to an affirmative resolution
INDIRECT CONTROL

Section 320 of Lok Sabha Rules of Procedure

• Whether the rules are in accordance with the general object of the Act
• Whether the rule contain any matter which could be more properly be dealt within the Act
• Whether it contains imposition of tax
• Whether directly or indirectly it bars jurisdiction of the Court
• Whether it is retrospective
• Whether it requires expenditure from the Consolidated Fund
• Whether there has been delay unjustifiably in publication of laying down
• Whether for any reason it requires further elucidation.
PROCEDURAL CONTROL OVER LEGISLATION

1. Drafting
Daiichi Sankyo Co. ltd.V. Jayaram Chigurupati 2010
2. Antenatal Publicity
The position in United States- Federal Administrative Procedure Act, 1946
The position in England: Statutory Instruments Act 1946
Section 30 (3) of Chartered Accountants Act, 1949-https://indiankanoon.org/doc/412749/
Section 43 of Co-operative Societies Act, 1912-
https://indiankanoon.org/doc/86200430/#:~:text=Section%2043%20in%20the%20Co%2Doperative%20Socie
ties%20Act%2C%201912&text=(1)%20The%2023%20%5BState,the%20purposes%20of%20this%20Act
Section 23 of General Clauses Act, 1897-https://indiankanoon.org/doc/623056/
CONTN…

3. Consultation
Section 16 (5) Electricity (Supply) Act, 1948 - https://indiankanoon.org/doc/1577406/
Official Consultation with a named body
Consultation with administrative boards
Consultation with a specialised statutory board
Consultation with interested persons
Preparation of rules by the affected interests
CONTN…

4. Post-natal Publicity

State of Orissa v. Sridhar Kumar 1985

Harla v. State of Rajasthan 1951
State of Kerala v. P.J. Joseph 1958
 JUDICIAL CONTROL

• General Officer Commanding in Chief v. Subhash Chandra Yadav 1988- Judicial review of rules
https://indiankanoon.org/doc/600280/
 That the enabling Act is ultra vires the Constitution
In re Delhi Laws Act 1951
Mohini Jain v. State of Karnataka 1992
Kishan Prakash Sharma v. Union of India 2001
St. Johns Teachers Training Institute v. Regional Director, NCTE-
https://www.lawyerservices.in/St-Johns-Teachers-Training-Institute-Versus-Regional-Director-
and-Another-2003-02-07
CONTN…

• Test for Excessive Delegation of Powers

Scheme of the statute including Preamble
Facts, circumstances and background
History of legislation
Complexity of the problem which the state has to face
Liberal construction to be given to the statute, policy and guidelines
Statute even if skeletal will be valid
CONTN….

 The administrative legislation is ultra vires the Constitution

Dwaraka Prasad Laxmi Narain v. State of UP. 1960

Himat Lal K. Shah v. Commr. of Police 1973
Labh Chandra v. State of Bihar 1969
Kerala Samsthana Chthu Thozhilali Union v. State of Kerala 2006
https://indiankanoon.org/doc/1120277/#:~:text=On%20or%20about%201.4.,of%20arrack%2
0should%20be%20rehabilitated
THANK YOU….
ADMINISTRATIVE ADJUDICATION
UNIT 3
 TOPICS TO BE COVERED

1. Reasons for the growth of Administrative Adjudication

2. Distinction between Quasi-Judicial and Administrative Functions
3. Principles of Natural Justice or Fairness
1. Nemojudex in re sua
2. Audi alterampartem
3. Reasoned Decision
4. Institutional Decision
4. Administrative Appeal
5. High Court’s Superintendence over Tribunals in the light of S. P. Sampatkumar and
L.Chandrakumar's case
NEED FOR ADMINISTRATIVE ADJUDICATION
 AA is the bye product of an intensive government and consequential
socialization of law.

 It provides a system of adjudication which is informal, cheap, and quick

 Need to explore new public standards based on moral and social

principles away from the highly individualistic norms developed by the
Courts.

 Emphasis to be given on preventive rather than punitive justice.

 Provides functional approach to law

 In the administrative decision making process, the government develops its

own system which supplements the existing one.
 PRINCIPLES OF NATURAL JUSTICE

 NJ exists as a measure to protect oneself against the excess of organised

power. It could be the God and his laws, divine law or natural law.
 NJ is the higher law of nature or natural law
 It is based on common sense justice based on natural sense of what is right
and what is wrong.
 Rules of natural justice are not codified canons. They are principles
ingrained in the conscience of man
 It is not circumscribed by linguistic technicalities, grammatical niceties or
logical prevarication. It supplies omission of a formulated law.
 It is the substance of justice which has to determine its form.
MAIN PRINCIPLES OF NATURAL JUSTICE

 Nemo in propria causa judex, esse debet- No one should be made a judge
in his own cause, or the rule against bias
Bias is an operative prejudice, whether conscious or unconscious, in relation to
a party or issue, which may be the result of a preconceived opinion or a
predisposition or a predetermination to decide a case in a particular manner,
which is not founded on reason and actuated by self-interest, pecuniary or
personal.
 Audi Alterum partem- Hear the other party, or the rule of fair hearing, or the
rule that no one should be condemned unheard
Any wrong order may adversely affect a person and therefore a reasonable
opportunity should be given before passing order It ensures fair play and
justice to affected persons. It is important that “justice should not only be done,
but should manifestly and undoubtedly be seem to be done.”
 RULE AGAINST BIAS

 Personal Bias
Mineral Development Corporation ltd. V. State of Bihar (1960)
Real Likelihood of bias/Reasonable suspicion of bias
The test is not whether the fact of bias has affected the judgment but whether
a litigant could reasonably apprehend that a bias attributable might have
operated against him in the final decision

The test of bias is whether a reasonable man, in possession of relevant

information, would have thought that the bias was likely and whether the
person concerned “was likely to be disposed to decide the matter only in that
particular way.”
Contn….

 What is relevant is the reasonableness of the apprehension in the mind of the

party. Even if the deciding officer is impartial as if a right minded person would
think in the circumstances that there is a real likelihood of bias
 “Justice must be rooted in confidence; the confidence is destroyed when right
minded people go away thinking “the judge was biased.”
A.K. Kraipak v. Union of India 1969
http://www.legalservicesindia.com/article/1162/A.K-Kraipak-v.-Union-of-India.html
Padma v. Hiralal Motilal Desarda
Cases not amounting to Bias
Tata Cellular v. Union of India (1994)
G.N. Nayak v. Goa University (2002)
https://www.lawyerservices.in/GN-Nayak-versus-Goa-University-and-Ors-2002-01-29
 RULE AGAISNT BIAS

PECUNIARY BIAS
J. Mohaptra v. State of Orissa (1984)
https://indiankanoon.org/doc/1619801/
Jeejobhoy v. Collector (1965)
SUBJECT MATTER BIAS/DEPRTMENTAL BIAS
G. Nageswara Rao v. APSRTC (1959) I
G. Nageswara Rao v. APSRTC (1959) II
https://indiankanoon.org/doc/449421/
Krishna Bus Service Pvt Ltd. V. State of Haryana (1985)
RULE AGAINST BIAS

 Policy notion bias

T. Govindraja Mudaliar v. State of T.N. (1973)

 Doctrine of Necessity
The law permits certain thing to be done as a matter of necessity which would
otherwise not countenance on the touchstone of judicial propriety.
Ashok Kumar Yadav. State of Haryana (1985)
 2. AUDI ALTERUM PARTEM

ESSENTIALS OF THE PRINCIPLE

 Notice
Time, place and nature of hearing
Legal authority under which hearing is to be held
Settlement of specific charges which the person has to meet
Particular penalty or action which is proposed to be awarded

State of UP V. Vam Organic Chemicals ltd. (2010)

Joseph Vilangandan v. Executive Engineer (1978)
Essential Elements of the Principle

 Right to know the evidence against himself

Dhakeswari Cotton Mills v. CIT (1955)
 Right to present case and Evidence/oral hearing
Southern Painters v. Fertilizers and Chemicals Travancore ltd (1994)
 Right to rebut adverse evidence
Cross-examination
Kanungo & Co. v. Collector of Customer (1973)
Legal representation
No evidence should be taken at the back of the other party
Report of the enquiry to be shown to the other party
CONTN
REASONED DECISIONS OR SPEAKING ORDERS
Reason provides a link between fact and decision, guard against non-application
of mind, arbitrariness and maintain public confidence in judicial and administrative
authorities.
MJ Sivani v. State of Karnataka (1995)
Global Energy Ltd. V. CERC (2009)
https://www.lawyerservices.in/Global-Energy-Ltd-and-Another-Versus-Central-
Electricity-Regulatory-Commission-2009-05-11
 Reasons may be mandated by the Constitution
Anumathi Sadhukhan v. AK Chatterjee (1951)
Kishan Chand Arora v. Commr. Of Police (1961)
 Reasons may be mandated by law
Section 31 of Arbitration and Conciliation Act, 1996
Contn…

 Reasons may be mandated by the principles of natural justice

https://indiankanoon.org/doc/801705/
 Reasons may be mandated by the nature of functions which an
administrative authority exercises
Mahabir Prasad v. State of UP (1970)
https://indiankanoon.org/doc/219637/
Bhagat Ram Patanga v. State of Panjab (1972)
Divisional Forest Officer v. Madhusudhanan Rao (2008)
Kranti Associates p ltd. V. Masood Ahmed Khan (2010)
 Contn….

INSTITUTIONAL DECISION/ONE WHO DECIDES MUST HEAR

Local Government Board v. Aldridge v. (1915)
Morgan v. United States (1935)
Nageswara Rao v. State of AP (1959)
Kalinga Mining Corporation v. Union of India (2013)

RULE AGAINST DICTATION

Mahadayal v. CTO (1958)
Orient Paper Mills ltd. V. Union of India (1970)
Contn…

DECISION POST HASTE

City Corner v. Collector
SP Kapoor (1981)
JUDICIAL REVIEW OF THE DECISIONS OF
THE ADMINISTRATIVE TRIBUNALS
 S. P. Sampat Kumar v. Union of India (1987)
“Though judicial review is the basic feature of the Constitution, the vesting of the power of
judicial review in an alternative Institutional Mechanism, after taking it away from the High
Court, would not be violative of the basic structure of the Constitution, so long it was ensured
that the alternative mechanism was an effective and real substitute for the High Court.”
 L. Chandra Kumar v. Union of India (1997)
In this case, the Supreme Court changed its earlier position regarding tribunals and held that
since judicial review is a fundamental, integral and essential feature of the Constitution, the
jurisdiction conferred on the High Courts under Article 226/227 and upon the Supreme Court
under Article 32 of the Constitution cannot be ousted even by a provision in the constitution. In
view of this, the courts and tribunals may perform a supplemental role in discharging the
powers conferred by Articles 226/227 and 32 of the constitution.
CONTN…
• Power of judicial review over legislative action vested in the High Courts and the Supreme
Court under Articles 226 and 32 respectively is the basic structure of the Constitution.
• Power of judicial superintendence over decisions of all courts and Tribunals within their
jurisdiction is the basic structure of the Constitution
• Judicial review of legislative action in exercise of power by subordinate judiciary or Tribunals
created under ordinary legislation cannot be to the exclusion of the High Courts and the Supreme
Court. However they can perform supplemental – as opposed to substitutional – role in this
respect.
• Tribunals constituted under Articles 323A and 323B have the power to test vires of subordinate
legislation except vires of their parent statutes. All its decisions would be subject to scrutiny
before Division Bench of their respective High Courts under Articles 226/227. No appeal would
lie directly to the Supreme Court under Article 136. The said direction would operative
prospectively.
• Appointment of Administrative members need not be stopped.
• Till a wholly independent body is set for the purpose of overseeing the working of the Tribunals,
all such Tribunals will be under single nodal ministry whose members would be appropriately be
a Ministry of Law.
THANK YOU ….
ADMINISTRATIVE DISCRETION
UNIT 4
ADMINISTRATIVE DISCRETION

1. Administrative Powers

2. Formulation and Execution of Policy

3. Need for Administrative Discretion

4. Limitations on Exercise of Discretion

5. Mala Fide Exercise of Discretion

6. Constitutional Imperatives and Use of Discretionary Power

7. Irrelevant Consideration

8. Non-exercise of discretionary Power

MEANING, DEFINITION AND NEED

• “DISCRETION” means choosing from amongst the various available alternatives but with
reference to the rules of reason and justice and not according to the personal whims.
• Such exercise is not to be arbitrary, vague and fanciful but legal and regular.
• “Discretion is a science or understanding to discern between falsity and truth, between
right and wrong, and not to do according to will and private affection.”
• It is necessary not only for the individualisation of administrative power but also because
it is humanly impossible to lay down a rule for every conceivable eventuality in the
complex art of modern government.
JUDICIAL BEHAVIOUR OF ADMINISTRATIVE DISCRETION
IN INDIA
1. CONTROL AT THE STAGE OF DELEGATION OF DISCRETION
Ultra vires Article 14 and 19 of the Constitution
2. CONTROL AT THE EXERCISE OF DISCRETION
i. That the authority is deemed not to have exercised its discretion at all, or there is
failure on its part to exercise discretion.
ii. That the authority has not exercised its discretion properly, or there is an excess or
abuse of discretion.
• Non exercise of discretion
Purtabpore Co. ltd v. Cane Commr. Of Bihar (1969)
• Malafide Exercise of discretion
Indian Rly. Construction Co. Ltd. v. Ajay Kumar (2003)
 DOCTRINE OF IMPLIED LIMITATIONS

State of Punjab v. Salil Sabhlok (2013)

Manoj Narula v. Union of India (2014)
ENGLISH LAW
Padfield v. Minister of Agriculture Fisheries and Food (1968)
CONSTITUIONAL CONTROL ON ADMINISTRATIVE
DISCRETION
• ARTICLE 14
State of W.B. v. Anwar Ali Sarkar (1952)
State of Punjab v. Khan Chand (1974)
• ARTICLE 19
Himat Lal Shah v. Commr of Police (1973)
State of Madras v.VG Row (1952)
State of MP v. Bharat Singh (1967)
THANK YOU…
REMEDIES AGAINST ADMINISTRATION
UNIT 5
REMEDIES AGAINST ADMINISTRATION

 Writs under Article 32 and 226

 Grounds for exercise of Judicial Review
 Procedural Aspects: Locus standi, Laches, Res Judicata, Exhaustion of
Alternative remedies
 Exclusion of Judicial Review: Exclusionary Clauses’
 Suits against Administration
 Notice under Section 80 CPC
 Period of Limitation
REMEDIES
 Article 32
Review is not of the decision of the administrative authority but of the decision
making process. Therefore, the Court cannot assume appellate jurisdiction
and reappreciate the primary or perceptive facts found by the fact-finding
authority.
 Article 136
It does not grant right of appeal but it is a discretionary power, it exists even at
the stage of hearing. Tribunal must have the trappings of a court.
Bharat Bank ltd v. Employees (1950)
i. Proceeding must start on an application in the nature of a plaint.
ii. It must possess the powers of a civil court in matters compelling
attendance of witnesses, discovery and inspection
iii. It should allow cross-examination and legal representation
iv. It should decide on the basis of evidence and according to law and
v. Its members must be qualified to be judges
Ujagar Singh v. State (Delhi Administration) (1979)
CONTN…
 Article 226
The power of the HC is discretionary and it cannot be used as a court of
appeal. It is supervisory in nature. It can strike down an impugned rule and
direct the authorities to reframe it , but it cannot itself frame it.

 Article 227
Power of superintendence over administrative agencies exercising
adjudicatory powers. The nature of this power is administrative and judicial.
Wrong decision referable to grave dereliction of duty and flagrant abuse of
power by the subordinate courts and tribunals leading to grave injustice to the
parties attract the jurisdiction of the court. It is revisional and not appellate
jurisdiction. Hence limited and restrictive.
Contn…

It is used for want of jurisdiction, errors of law, perverse findings, gross violation
of the principles of natural justice and when finding is based not on evidence.
It is not confined to administrative superintendence it includes power of judicial
review also.
The jurisdiction under Article 226 and Article 227 are separate and
independent.
JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS:
GROUNDS
A. ILLEGALITY
 Lack of Jurisdiction
 Excess of Jurisdiction
 Abuse of Jurisdiction
 Failure to exercise jurisdiction
CONTN….

B. IRRATIONALITY (WEDNESBURY TEST)

If the decision is
 Without the authority of law
 Based on no evidence
 Based on irrelevant and extraneous consideration
 Outrageous in its defiance to logic or accepted norms of moral standard
that no sensible person, on the given facts and circumstances, could arrive
at such a decision.
Contn…

C. PROCEDURAL IMPROPRIETY
Procedure of a decision is as important as the decision itself because if
“procedure” is not fair, decision cannot be trustworthy. Requirement of a “fair
procedure” may arise in the following ways:
1. As a constitutional mandate where fundamental rights of the people are
violated
2. As a statutory mandate where statute lays down a procedure, it must be
followed by the administrative authority before taking action
3. As an implied requirement where statute is silent about the procedure, the
administrative authority must follow fair minimum administrative procedure
which guarantee ‘fair play in action.’ It includes:
i. Rule against bias- No one should be made judge in his own cause
ii. Rule of fair hearing- No one should be condemned unheard
CONTN….

D. PROPORTIONALITY
The doctrine is applied when:
 An administrative action invades fundamental rights
 Deference Principle: “Canon should not be used to shoot a sparrow”
Grounds of Proportionality:
1. Whether the relative merits of different objectives or interests have been
proportionately weighed and fairly balanced?
2. Whether the action under review was in the circumstances, excessively
restrictive or inflicted an unnecessary burden?
 PROCEDURAL ASPECTS

 Laches or unreasonable delay

The relief cannot be claimed in the ordinary manner because the limitation
period has expired, the same will not be granted by the High Court in exercise
of its extraordinary power.
Arun Kumar v. S.E. Rly (1985)
MS Mudhol v. SD Halegkar (1993)
Can laches extinguish fundamental rights?
Tilokchand Motichand v. HB Munshi (1969)
Ramchandra Shankar Deodhar v. State of Maharashtra (1974)
CONTN…

ALTERNATE REMEDY
SC and HC cannot refuse relief under Article 32 and 226 on the ground of
alternative remedy, if the person complains of violation of his fundamental rights.
But if the person invokes the jurisdiction of the High Court for ‘any other purpose’ in
exercise of its discretion, the HC may refuse relief.
AV Venkateswaran v. RS Wadhwani (1961)
Contingencies where the Court may still exercise writ jurisdiction in spite of the
availability of alternate remedy:

1. Where a writ seeks enforcement of fundamental rights

2. Where there is a failure of the principles of natural justice
3. Where orders or proceedings are wholly without jurisdiction
4. Where the vires of the law is challenged.
CONTN….

RES JUDICATA
If a petition has been heard and dismissed then the same petition on same
grounds cannot be filed in the same court again, but if the petition has been
dismissed otherwise than on merits, the person may be fit to file a fresh writ in
another forum.
The principle of res judicata and constructive res judicata apply to writ
petitions also, therefore, if the final decision has been given by a competent
court which has become final, any petition under Article 32 or 226 will be
barred.
State of UP v. Nawab Hussain (1977)
UPSRTC v. State of UP (2005)
THANK YOU….
LIABILITY FOR WRONGS
(TORTIOUS AND
CONTRACTUAL)
UNIT 6
LIABILITY FOR WRONGS (TORTIOUS AND
CONTRACTUAL)
• Government Tortious Liability-Old view, Kasturilal and later developments, Government
Torts
• Contractual Liability of Government
• Formation of Contract
• Estoppel
• Contracts and Statutory Discretion
• Article 14 and 19 (1)(g)
• Contracts and Writs
• Doctrine of Legitimate Expectation
LIABILITY FOR TORTIOUS WRONGS-GROUNDS

• Respondeat Superior (let the principal be liable)

• Quifacit per alium facit per se (he who acts through another does it himself)
• Socialisation of compensation
 CASE LAWS

• P & O Steam Navigation Co. v. Secy. Of State for India (1861)

• Secy. Of State for India in Council v. Hari Bhanji (1882)
• Union of India v. Harban Singh (1959)
• State of Rajasthan v. Vidyawati (1962)
• Kasturi Lal Ralia Ram Jain v. State of UP (1965)
• State of MP v. Chironji Lal (1981)
• Lala Bishambar Nath v. Agra Nagat Mahapalika (1973)
• Rudal Shah v. State of Bihar (1983)
• Saheli v. Commr of Police (1990)
• State of Maharashtra v. Kanchan mala Vijaysing Shirke (1995)
LIABILITY OF THE ADMINISTRATION IN CONTRACT

• Article 294
• Article 298
• Article 299
• Article 300
FORMATION OF CONTRACT

1. The contract must be expressed to be made by the President or the Governor, as the
case may be
Chatturbhuj Jasani v. Moreshwat Parashram (1954)
2. The contract must be executed on behalf of the President or the Governor as the case
may be
Davecos Garments Factory v. State of Rajasthan (1970)
3. The contract must be executed by a person authorised by the President or the Governor
as the case may be
Bhikraj Jaipuria v. Union of India (1962)
4. The government cannot ratify a contract if it does not comply with the requirements of
Article 299 (1) as to enable it to enforce against a private party
CONTN…..

5. The contracts which do not comply with the requirements of Article 299 are absolutely void
despite ratification and the party shall have no claim except where the government has taken
any benefit under such contract.
State of UP v. Murari Lal & Bros. (1971)
6 Contractual obligation cannot clog the constitutional power of the government regarding
eminent domain.
Public Works and Transport Development v. Adoni Ginning Factory (1959)
7. Since the requirement of Article 299 are mandatory, these cannot be waived by the
government.
Motilal Sugar Mills Co. ltd v. State of U (1979)
CONTN….

8. Contractual Obligation and Writ

Instances of breach of contractual obligation by the State or its authorities and agencies
may be divided into:
i. Where promissory estoppel is against the state
ii. Where breach of a statutory rule or regulation is alleged by the petitioner
iii. Where public law element is involves which the party seeks to invoke
iv. Where breach of a contractual obligation is alleged which arises only out of the
terms of the contract.
DOCTRINE OF LEGITIMATE EXPECTATION

• This doctrine was developed by the Supreme Court in order to check the arbitrary
exercise of power by the administrative authorities. Locus standi is relaxed to allow
standing even when legitimate expectation from a public authority is not fulfilled.
Example: if the government has made a scheme for providing drinking water in villages in
certain area but later in changed it, so as to exclude certain villages from the purview of the
scheme, then in such a case, what is violated is the legitimate expectation of the people in
the excluded villages for tap water and the government can be held responsible if the
exclusion is not fair and reasonable.
CONTN….

ENGLAND
Schmidt v. Secy. Of State for Home Affairs (1969)
McInnes v. Onslow Fane (1978)
INDIA
State of Kerala v. KG Madhavan Pillai (1989)
National Building Constrn. Corpn. v. S. Raghunathan (1998)- LE does not have any role when
administrative action is based on public policy
T. Vijayalakshmi v. Town Planning Member (2006)- LE is not a legal right rather it is an
expectation of a legal right
P. Susheela v. UGC (2015)- Legitimate expectation must yield to the larger public interest.
T. Vijayalakshmi v. Town Planning Member (2006)-Administrative authority cannot postpone its
decision on any important decision for an indefinite period
CONTN….

Union of India v. Shri Hanuman Industries (2015)

1. The doctrine is founded on the principle of reasonableness and fairness and also on public
interest in executive policy or law.
2. The doctrine cannot be used to fetter changes in administrative policy in public interest.
3. Legislative expectation is different from anticipation which cannot amount to an assertible
expectation
4. It should be justifiable, legitimate and protectable
5. It can be invoked as a substantive and enforceable right.
6. It cannot be invoked if it has the effect of jeopardising public interest for private benefit
7. It shares space with promissory estoppel and the principle of natural justice
THANK YOU….