Unit -1

SYALLABUS

INTRODUCTION

Evolution and Development of Administrative Law: Nature, Scope and

Definition of Administrative Law-Constitutional Law and Administrative Law

Rule of Law: Droit Administartif and Indian Perspective

Separation of Powers

Previous year Question

1. Administrative Law has been characterized as the most "outstanding legal development of
the twentieth century". Deliberate upon the reasons behind its phenomenal growth and
continuing importance.
2. In England we know nothing about administrative law and we wish to know nothing"
Critically examine Dacey’s aversion to administrative law (2021).
3. The rule of law has given to the countries following the common law system, a philosophy
to court the governmental power and to keep it within bounds; it has provided a sort of
touchstone to judge and test administrative law providing in the country at a given time"
Analyse the statement with the help of radical interpretation and judicial precedents.
4. Define Administrative Law and discuss the reasons for its phenomenal growth in India?
5. Explain the doctrine of "Separation of Powers." Critically examine to what extent the
doctrine has been incorporated in the Indian Constitution.
6. Define Administrative Law? What is its nature and scope?
7. In England we know nothing about administrative law and we wish to know nothing."
Critically examine Dicey's aversion to administrative law.
8. Delineate the scope of administrative law and discuss the reasons for its phenomenal
growth in India.

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9. Critically examine Dicey's formulation of the concept of Rule of Law with special
reference to the French Droid Administratif.
10. Discuss this doctrine of separation of powers. Does the doctrine of separation of powers
play the same role in India and in the U.S.A.? Do you think that the Judiciary is violating
this doctrine through Judicial law making? Explain.
11. What is meaning of administrative law? Also Discuss the nature and scope of
administrative law in u welfare state. Is there any difference between administrative law
and constitutional law? Explain.
12. Discuss the concept of Rule of Law Do you think that the doctrine of the 'Rule of Law is
one of the most effective judicial weapons to restrain misuse or abuse b administrative
authority? Explain.
13. Write notes on the following
(i) Causes of the growth of Administrative Law
(ii) Droit Administratif.
14. Write a short note on
(1) Doctrine of separation of power
(2) Rule of Law
15. Define Administrative Law. Explain the Importance Administrative Law in the modern
society.

16. Rule of law does not mean rule according to Statutory law, Pure and simple, because such
a law may Itself be harsh, Inequitable, discriminatory or unjust. Rule of law connotes some
higher kind of law which is reasonable, just and non-discriminatory. Discuss with the help
of decided cases.
17. What do you mean by the doctrine of separation of powers? "There is broad separation of
powers under the Constitution, and hence one organ of the state should not encroach upon
the domain of another. Tho Judiciary should not therefore cook to perform legislative or
executive functions." Do you agree with the statement? Discuss with the help of recent
judicial pronouncement.

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 Introduction

Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely.”

James Madison: “Concentration of powers is tyranny.”

“The accumulation of all powers, legislative, executive, and judiciary, 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 Administrative Law How it came? How it came

Police state Welfare state

➢ Welfare of the country ➢ Protection and promotion of economic
and social well-being.
➢ Maintenance of law and order ➢ Equal opportunity
➢ Administration of justice ➢ Equitable distribution of wealth.
➢ Collection of taxes ➢ Protector, provider, entrepreneur,
economic controller

Laissez-Faire

➢ Minimum government control

➢ Policy which is based on the idea that governments and the law should not interfere with
business, finance, or the conditions of people’s working lives.

Indian Scenario

British Rule

➢ Profit-Ruling
➢ Many Acts were passed by the British Government regulating public safety, health,
transport etc.

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 ➢ The Stage Carriage Act 1861: The practice of granting administrative license.
➢ Northern canal and Drainage Act 1873.
➢ The Defence of India Act, 1939.

Independent India – Welfare State

➢ Preamble-Sovereign Socialist Secular Democratic

➢ Republic, Justice, Liberty, Equality and Fraternity.
➢ DPSP PART 4

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 Ministry of environment, forest and climate change

1. Cabinet Minister
2. Minister of state
a. Regional Officer
b. Subordinate offices

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 c. Autonomous organization
d. Authorities/ tribunals
e. Boards
f. Institute

The essential commodities Act 1955

Sec 3 of the act empowers the central govt to add a commodity or add a commodity

Drugs and Cosmetics Act, 1940 and rules 1945.

Chapter -II The Drugs Technical Advisory Board.

Sec 5: - The Drugs technical Advisory board

Sec 12: - power of the central govt. to make rules

Why make administrative law

To keep governmental powers within the limits of law and protect private rights and individual
interests.

Administrative Tribunals

National Green Tribunals

Income tax Appellate Tribunal

National company law tribunal

Definitions Of Administrative Law

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K. C. Davis: Administrative law is the law concerning the powers and procedures of
administrative agencies including especially the law governing judicial review of administrative
action.

Further Explanations:

According to him administrative agency is a governmental authority, other than a court and other
than a legislative body, which affects the rights of private parties through either adjudication or
rulemaking.

Ivor Jennings: Administrative law is the law relating to the administration. It determines the
organization, powers, and duties of administrative authorities.

Criticisms:

• It does not include the remedies available to an aggrieved person when his rights are
adversely affected by the administration.
• It is a very wide definition.
• It ignores the distinction between Constitutional Law and Administrative Law. It lays entire
emphasis on the organization, powers, and duties to the exclusion of the manner of their
exercise.

Dicey: Administrative law as denoting that portion of a nation’s legal system which determines:

• The legal status and liabilities of all state officials.

• The civil rights and liabilities of private individuals in their Dealings with officials as
representatives of the State.
• The procedure by which those rights and liabilities are Enforced.

Various drawbacks:

• It does not cover several administrative law aspects, for example, it excludes the study of
several administrative authorities such as public corporations that are not included in the
phrase State officials.
• It excludes procedures of administrative authorities or their Various powers and functions.

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Wade and Phillips: Administrative law is a branch of public law which is concerned with the
composition, powers, duties, rights, and liabilities of the various organs of the government which
are engaged in administration.

Jain and Jain: Administrative law deals with the structure, powers, and function of the organs of
administration, the limits of their powers, the methods and procedure followed by them in
exercising their powers and functions, the method by which their powers are controlled including
the legal remedies available to a person against them when his rights are infringed by their
operation.

Reasons for the growth of Administrative Law

1. Change in the philosophy of State: The change in the role played by the State from Police
State to Social Welfare State.
2. Urbanizations: Emergence of factory System led to the migration of people to urban areas.
This led to the increase in the need for proper facilities like housing, roads, drainage system.
Fulfilling the needs of all by passing legislations by the legislature overburdened the wing,
ultimately resulted in the delegation of powers to the administrative wing and growth of
administrative law.
3. Emergency situation: Passing of laws by the Legislature is a lengthy process. So, it is not
expected from a legislature to pass a law to meet an emergency situation.
4. Inadequacy of legislative process: It has no time to Deal with all the details. Example:
Drug and Cosmetics Act and Drug and cosmetics rules.
5. Inadequacy of Judicial System: It is slow, costly, formalistic. No speedy disposal.
Example: Industrial tribunal, Labour Court.
6. Experiment: The administrative process is flexible.
7. Technicalities: Administrative tribunals are bound formalities, procedures as followed in
the courts.
8. Preventive measures: Administrative authorities Can take preventive measures.
9. Effective enforcement of preventive measures: Administrative authorities can take steps
to enforce preventive measures. Example: Revocation, suspension of license.

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 Nature and Scope
1. It is a branch of public law.
2. It is not a codified law.
3. It is law relating to public administration.
4. Constitutional law and administrative law concerned with the functions of the
government and are branches of public law.

Holland: The Constitutional law describes the various organs of government at rest, while
administrative law Describes them in motion. In other words, the structure of the legislature and
executive comes within the Purview of Constitutional Law, but their functioning Comes within
the sphere of administrative law.

While constitutional law deals mainly with the structure, powers, organization, and functions of
the three apex organs of the government of a state. Administrative law refers mainly to the
operation of the administration vis-à-vis the individual.

Constitutional law administrative law

Art 32

Art 226,227

Art 136

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 Scope
1. It deals with administrative authorities.
2. Rule making power of administrative agencies.
3. Judicial functions of administrative authorities like National Green Tribunal, Income
tax Appellate Tribunal, Labour Court, etc. Procedures to be Followed.
4. Administrative powers.
5. Limitation on the powers.
6. Judicial Control over administrative actions.
7. Remedies against the abuse of powers like Writs.
8. Liability of the State in contract and tort.

Sources Of Administrative Law

➢ Constitution- It is the fundamental law of the land. All the legislative actions of the
administration have been brought within the purview of Article 13. Article 13(3)(a)-Law
includes any ordinance, order, bye- laws, rule, regulation, notification, custom, usage
having the force of law. Article 323 A and 323 B- Administrative tribunals.
➢ Statutes- Statues formulates administrative bodies. The powers and functions of the
authorities are prescribed under it.
➢ Judicial Decisions- The Judgments, guidelines or directions given by the court are also the
important source of administrative law.
➢ Ordinance: Ordinance making powers are given under Article 123 and 213 to the
President and the Governor respectively.
➢ Delegated Legislation- Legislation made by the administrative authority. It is subject to
Judicial or parliamentary control.

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 Rule of law

Rule of law simply means a situation in which the people in a society obey its laws and enable it
to function properly.
The entire basis of the administrative law is the Doctrine of The Rule of Law

The expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite',
i.e., a government based on the principles of law not of men. It is the reverse of tyranny, the anti-
thesis of the rule of anarchy.

The expression rule of law rule of law’ indicates the state of affairs in a country in which
everything must be done according to law.

The rule of law is used in contradiction to rule of man and rule according to law means that the
law, rules which is based on the principle of the freedom fraternity accountability and non-
arbitrariness.

Rule of law can be used in 2 senses

1. Formalistic sense: - Organized power as opposed to a rule by one man

2. Idealistic sense: - Regulation of the relationship of the citizens and govt. In this sense the
concept becomes ethical code for the exercise of public power in any country. The content
of the code may different for different societies but the basic principle of the code includes
equality, freedom and accountability.

Sir Edward Coke

Originator of the concept Rule of Law.

The Chief Justice in England at the time of King James I. Coke was the first person to criticize
the maxims of Divine Concept. He strongly believed that the King should also be under the
Rule of Law.

A.V. Dicey

developed by Prof. A.V. Dicey in his book ‘Introduction to the law of the Constitution’ published
in 1885.

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A.V. Dicey in his classic work ‘The Law and The Constitution’ and he defined the Rule of law as,
“…. with us every official, from Prime Minister down to constable or collector of taxes, is under
the same responsibility for every act done without legal justification as any other citizen….”.

According to Prof. Dicey, rules of law contain three principles, or it has three meanings as stated
below:

1. Supremacy of I.aw.
2. Equality before Law.
3. Predominance of Legal Spirit.

Supremacy of I.aw

1. Absolute supremacy of regular law

2. Exclusion of arbitrary power, arbitrariness, even wide discretionary power on the part
of the govt.
3. He believed whenever there is discretion there is a roof of arbitrariness.

Equality before Law

1. There must be equal subjection of people to the ordinary law of the land
administer by ordinary course of law,
2. He says every official from PM to a constable or a collector of district should
be liable in the same way if they acting without jurisdiction and authority.
3. In England all persons where subjected to one and same law and there is no
separate tribunal or special courts for the offices of the govt. and other
authorities

Pre dominance of Legal Spirit

Explaining the third principle, Dicey asserts that rights (e.g., right to personal
liberty, freedom from arrest etc.) are the result of judicial decision in particular
cases which have actually arisen between the parties. The constitution is not the
source but the consequence of the right of the individuals. Thus, Dicey
emphasized the role of the Courts as guarantors of liberty and suggested that it

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 would be secured more adequately if they were enforceable through the Courts of
law than by mere declaration of those rights in a document, as in the latter case,
they can be ignored, curtailed or trampled upon

Rule of Law Indian Perspective

The concept of rule of law runs like a golden thread through the entire fabric of the Constitution
of India, 1950.

The doctrine of Rule of Law has been adopted in Indian Constitution. The Constitution of India
has been made the supreme law of the land. Any law which is found in violation of any provision
of the Constitution is declared invalid.

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

The ideals of the Constitution, justice. liberty and equality are enshrined (embodied) in the
preamble

Part III of the Constitution of India guarantees the Fundamental Rights.

Article 13 provides that the State should not make any law which takes away or abridges the
fundamental rights and any law made in contravention of this clause shall, to the extent of the
contravention, be void.

Article 14 The Constitution guarantees equality before law and equal protection of laws.

Article 21 guarantees right to life and personal liberty. It provides that no person shall be deprived
of his life or personal liberty except according to the procedure established by law.

Article 19 (1) (a) guarantees the third principle of rule of law (freedom of speech and expression).

Article 19 guarantees six Fundamental Freedoms to the citizens of India — freedom of speech and
expression, freedom of assembly, freedom to form associations or unions, freedom to live in any
part of the territory of India and freedom of profession, occupation, trade or business. The right to

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these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by
the State.

India, Constitution is supreme and the three organs of the Government viz. Legislature,
Executive and judiciary are subordinate to it. The Constitution provided for encroachment of one
organ (E.g.: Judiciary) upon another (E.g.: Legislature) if its action is mala fide, as the citizen
(individual) can challenge under Article 32 of the Constitution.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the
basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by
Parliament. It is also regarded as a part of natural justice. The principles of double jeopardy and
self-incrimination also found its rightful place in the Constitution. Articles 14, 19 and 21 are so
basic that they are also called the golden triangle Articles of the Indian Constitution.

The Constitution also ensures an independent an impartial Judiciary to settle disputes and
grievances for violation of fundamental rights by virtue of Articles 32 and 226.

• Compliance with the requirement of law

• Public interest security of social welfare
• National policy of reservation for backward classes and constitutional validity of creamy
lawyer.
• Pervasiveness of the concept of Rule of Law

K.K. Mathew said: “The rule of law is not like a twinkling star up above the constitution, it is
very much a terrestrial concept which has its habitat within the four corners of the constitution."

Various judicial pronouncement that enunciated the concept of Rule of Law.

Kesavanda Bharti vs. State of Kerala (1973) – The Supreme Court enunciated the rule of law as
one of the most important aspects of the doctrine of basic structure.

Menaka Gandhi vs. Union of India, AIR 1978 – The Supreme Court declared that Article 14
strikes against arbitrariness.

The state of Bihar vs Rani sonabati Kumari 1961

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The supreme court held that it is of the essence of the rule of law that every authority within the
State. Including the Executive Government should consider itself bound by and obey the Law.

Indira Gandhi Nehru vs. Raj Narian, 1975– Rule of law is the intrinsic part of democracy
which enter is the basic structure of the Indian constitution.

Article 329-A was inserted in the Constitution under 39th amendment, which provided certain
immunities to the election of office of Prime Minister from judicial review. The Supreme Court
declared Article 329-A as invalid since it abridges the basic structure of the Constitution

P. Sambamurthy vs State Of Andhra Pradesh 1986

If ordinance is against the rule of law, it shall declare void.

Mrs. Veena Sethi vs State of Bihar, 1982

The reach of the rule of the law has been extended to the poor and downtrodden the ignorant and
the illiterate where constitution the large bulk of the society.

A.K. Kraipak V. Union of India the Apex Court held that ours being a welfare State, it is
regulated and controlled by the Rule of Law.

People’s Union for Democratic Right v. uoi 1982

A public-spirited person can represent the socially and economically weaker section of the
people under the extended umbrella of Rule of Law.

In A.D.M Jabalpur vs., Shivakanta Shukla (1976)– This case is popularly known as Habeas
Corpus Case. Justice H. R. Khanna observed that, “rule of law is the antithesis of arbitrariness.

Union of India v. President, Madras Bar Association, the Supreme Court held that “Rule of
Law has several facets, one of which is that disputes of citizens will be decided by Judges who
are independent and impartial.

Raman Dayaram Shetty v. International Airport Authority of India, the Supreme Court held
that the great purpose of rule of law is the protection of individual against arbitrary exercise of
power.

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In re: Arundhati Roy Justice Sethi observed that for achieving the establishment of the rule of
law, the Constitution has assigned the special task to the judiciary.

E.P. Royappa v State of Tamil Nadu

A new dimension was given to this article 14 and it was considered as a guarantee against
arbitrariness.

Recent cases

Shaheen Abdullah v. Union of India 2023

While the directing the govt. to take suo motto action against the hate speech the SC observed
that Court is charged with the duty to protect democratic character of the nation and in particular,
the rule of law.

State v. Bhupender Tomar 2021

Recently a Delhi court while denying anticipatory bail to Pinky Chaudhary, prime accused in the
alleged inflammatory and anti-Muslim sloganeering at Jantar Mantar "We are not a Taliban State.
Rule of law is sacrosanct governing principle in our plural and multi-cultural society,

Tehseen S. Poonawalla v Union of India 2018

While framing guideline against cow vigilantism, the court held that No citizen is above the law.
Every law breaker must be punished

Rajeev Suri vs DDA 2021

In this case the Honourable Sc discussed the principle of Rule of Law at length The principle of
Rule of Law coalesces two words – rule and law. The two words are not only connected with
each other but also control the meanings attributable to each other.

Anoop Baranwal vs Union of India Ministry of Law 2023

In this case supreme court observed that an independent Election Commission is necessary for a
functioning democracy as it ensures Rule of Law and free and fair elections.

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 Droit Administratif

This was prevalent in France,

Napoleon Bonaparte was the founder of the Droit administrative. It was he who established the
Conseil d’Etat. He passed an ordinance depriving the law courts of their jurisdiction on
administrative matters and another ordinance that such matters could be determined only by the
Conseil d’Etat.

Criticism by AV Dicey

a. The govt. official has wide discretionary power.

b. High Govt. official are subjected to distinct set of laws from citizen.
c. Administrative Tribunal- High Govt. official,
Ordinary Courts: Citizens (Private Individuals).
d. Tribunal biased towards Govt.
e. He only focused DA as only administrative adjudication of France.

Waline, the French jurist, propounds three basic principles of Droit administrative:

1. The power of administration to act suo motu and impose directly on the subject the duty to
obey its decision.
2. the power of the administration to take decisions and to execute them suo motu may be
exercised only within the ambit of law which protects individual liberties against
administrative arbitrariness;
3. the existence of a specialized administrative jurisdiction.

Meaning

1. A body of rules which determines the organization, powers and duties of public
administration and regulate the relation of the administration with the citizen of the
country.
2. Independence of Administration from judicial control. Th ordinary court cannot exercise
control over administrative functions:
a. No separation of powers.
b. NO application of article 32 and 226.

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 c. No judicial review Article 13.
3. They have power to set their own laws no subjected to follow parliament laws.

4 Concepts (body’s formulated to govern Administration)

a. Conseil-Du-Roi
b. Conseil-Du-etate
c. Arrets Blanco
d. Tribunal Des Conflicts

4 Authorities, organized body’s which runs administration.

1. Conseil-Du-Roi
a. Body of Members.
b. Given advice to the king on legal executive matters.
c. 16th Century- It started to act as a Judicial body: Cognizance (Deals every matter civil,
criminal, political of the govt. servants & public officials).
d. Powers to reject or withdraw the matters related to public officials and also file cases
against govt. pvt. Officials.

French Revolution, Biased towards dictates

Drawbacks:- Need for separation of powers.

Napoleon Bonaparte made changes after Blanco case and French revolution.

2. Conseil-Du-etat
a. Freedom to exercise adiministtrative powers.
b. It was established in 1799.
c. Father of Droit Administratif: Napoleon Bonaparte.
d. Initial Function: Administration, and should run according to law
a. Administrative power
b. Judicial power.
e. Compostion: 2 Ministers.
f. Republic as well as private can make application before the body regarding (any
grievance).

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3. Arrets Blanco
a. It became highest administrative court.
b. It was regarded as court of Appeal for all other administrative tribunals.
c. Power of Judicial review to all administrative Tribunals.
d. Supervise the form, contained and grounds of administrative decision.
e. Advices the govt. of frances on the preparation of bills and ordinances.
f. They cannot do anything opposed to Rule of Law.
4. Tribunal Des Conflicts
a. TDC is a adjudicatory mechanism.
b. It decides whether a matter should go before the ordinary courts as tribunals.
c. Composition:
It has judges, civil servant in equal numbers with the minister of Justice as the president.

Rules of Droit Administratif

1. Rules related to appointment, powers, functions of govt. officials.

2. Rules related to public welfare schemes.

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 SEPARATION OF POWERS

1. Montesquieu, Political Philosopher formulated this doctrine systematically in his book De

l ’esprit des Lois- The Spirit of the Laws, 1748.
2. John Locke: Discontinuous legislative power, Continuous executive power, and
Federative power.
3. Montesquieu’s division of power included a general legislative power and two kinds of
executive powers: an executive power in the nature of Locke’s federative power and a ‘civil
law executive power including executive and judicial power.
a. According to him, to promote liberty in its true sense, the Powers should be
separated and function Independently.
b. His doctrine in essence signifies the fact that one person of body of persons should
not exercise all the three powers of the government viz, legislative, executive and
judiciary. In other words, each organ should restrict itself to its own sphere and
retrain from transgressing the province of the other.
c. When the legislative and executive powers are united in the same person, or in the
same body, there can be no liberty. Again, there is no liberty if the judicial powers
be not separated from the legislative and executive powers. Miserable would be the
case were the same man or the same body exercises all the three powers.
4. It can be understood into 2 senses: Negative and Positive.
5. Wade and Philips: Separation of Powers may mean the following:
a. The same person should not form part of more than One of the three organs of
government.
b. One organ of the government should not control or interfere with the exercise of its
function by another Organ.
c. One organ of the government should not exercise the functions of another.

SEPARATION OF POWERS: USA

• We can see the application of this doctrine in the US constitution.

• In US legislative, executive, and judicial powers are vested in separate entities.
1. Article Section 1: All legislative powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.

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2. Article II Section 1: The executive power shall be vested in a President of the United States
of America.
3. Article III Section 1: 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.
• US follows separation of powers but along with that they follow the concept of Checks and
Balances.

RELATIONSHIP BETWEEN LEGISLATURE EXECUTIVE AND JUDICIARY

JUDICIARY • Impeach the president.
• Approves treaties. Executive
Legislature
• Approves nominations.
[Administers and
[Frame Laws]
Implement Laws]
• Power to exercise veto.

Judiciary

[Interpret Laws]

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 SEPARATION OF POWERS: INDIA

• Under Indian Constitution:

(a) Legislative powers-Parliament.

(b) Executive powers- President.
(c) Judicial power- Supreme Court, High Court and Subordinate Courts.

The concept of separation of powers can be seen in the following Articles:

1. Article 50: Separation of judiciary from executive.

2. Article 122: Courts not to inquire into proceedings of Parliament.
3. Article 121: No discussion shall take place in Parliament of conduct of the judges of SC
or HC in the discharge of his duties except for the procedure of impeachment.
4. Article 361: President or Governor shall not be Answerable to any courts for the exercise
and performance of powers or duties of his office.

• When we look the constitutional provisions carefully then we can see that the doctrine has not
been accepted in India in its strict sense or rigid sense.

➢ Executive exercising Legislative and Judicial powers:

• Article 123: Issue ordinances.

• Article 357: President can exercise legislative function during the proclamation of State
emergency.
• Article 103: Questions As to disqualification of Members.
• Article 72: Power to grant pardon.
• Article 217(3): If any question arises as to the age of a Judge of a High Court, the question
shall be decided by the President.

➢ Judiciary exercises executive and legislative powers:

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 • Article 227: The High Court has supervisory powers over all subordinate courts and
Tribunals.
• Article 145 and 225: SC and HC can make rules for regulating the practice and procedure
of the court.

➢ Legislature exercises judicial and executive functions:

• Article 61: Procedure for impeachment of the President.
• Article 54, 55: Election of President by forming an electoral college.

In re Delhi laws act

Rai Sahib Ram Jawaya Kapur v. The State of Punjab 1955

In this case it was held that the Indian Constitution does not recognise the doctrine of separation
of powers in its absolute rigidity in dealing with the question whether publishing, printing and
selling of textbooks for the use of students may be regarded as an executive function of the State.
Mukherjee C.J., speaking for the Court observed: "It may not be possible to frame an exhaustive
definition of what executive function means and implies. Ordinarily the executive power
connotes the residue of governmental functions that remain after legislative and judicial
functions are taken away."

It cannot however be assumed that the legislative functions are exclusively performed by the
Legislature, executive functions by the executive and judicial functions by the judiciary alone. The
Constitution has not made an absolute or rigid division of functions between the three agencies of
the State. To the executive, exercise of functions legislative or judicial are often entrusted. For
instance, power to frame rules, regulations and notifications which are essentially legislative in
character is frequently entrusted to the executive. Similarly judicial authority is also entrusted by
legislation to the executive authority:

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Indira Nehru Gandhi v. Raj Narian (1975): Where the dispute regarding Prime Minister’s
election was pending before the Supreme Court, it was held that adjudication of a specific dispute
is a judicial function which parliament, even under constitutional amending power, cannot
exercise.

But 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.”

Kesavananda Bharati ... vs State of Kerala 1973

Separation of powers as understood as prevailing in India constitutes a part of the basic structure
of the Constitution of India.

S.R. Bommai vs Union of India

Federalism is one of the pillars of the Basic Structure of the Constitution.

Government of NCT of Delhi vs Union of India 2023

Supreme Court in this case held That Delhi govt has control over services Excluding Public Order,
Police & Land. Underscores Importance of Federalism stated, 'Governance of States Can't Be
Taken Over By Union’.

Anoop Baranwal vs Union Of India Ministry Of Law 2023

Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another
deeper and more relevant purpose: to act as check and balance over the activities of other organs.

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 Unit – II

SYLLABUS

ADMINISTRATIVE ADJUDICATION

Administrative Action: Classification of Administrative-Functions: Pure Administrative,

Quasi -Judicial and Quasi-Legislative

Administrative Discretion: Scope and Control

Administrative Adjudicatory Bodies: Tribunals-Need, Nature, Jurisdiction and Procedure-

Overview of Tribunals in India with Special Reference to Administrative Tribunals established
under the Administrative Tribunals Act, 1985-Civil Courts vis-à-vis Tribunals-Legal Status and
Jurisdictional Conflicts

Previous year Question

1. The commissioner of Police "CP" granted a licence to "A" for construction of a cinema
theater under the provisions of the relevant statute. Later, "CP" cancels the licence at the
direction of the state government. "A" challenges the cancellation of licence in court on the
grounds of failure to exercise discretion. Would "A" succeed in getting the cancellation
order set aside? Discuss with help of sufficient caselaw the instances when the courts may
interfere with the actions of the authority due to its failure to exercise discretion.
2. The 42 Constitutional amendment inserted Art 323 A and 323 B to the Constitution
enabling the Parliament to constitute administrative tribunals. The Administrative Tribunal
Act curtailed the power of judicial review of the High Court over such Tribunals. Discuss
the constitutional validity of the said provision with decided cases and other developments
thereafter.
3. Examine the validity of the following and give cogent reasons for your
a) The State Road Transport Corporation of Uttar Pradesh prepared a scheme whereby
only the bus routes between Lucknow and Allahabad were nationalized. The
scheme was drawn up on the directions of the Chief Minster Mr. Shyam of U.P

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 Anand and Suresh whose buses were running on the said routes alleged malafide
on the part of Chief Minister as they belonged to the party in opposition to Chief
Minister's party. As a proof of malafide Anand and Suresh recorded conversation
between Mr. Shyam and his friend whereby Mr. Shyam Says: "I will teach a lesson
to Anand and Suresh." Both Also filed an affidavit affirming the fact of malafide.
Decide the case and also mention what kind of proof is required to prove malafide.
How is malafide different from bias?
b) A notice of re-entry upon forfeiture of lease of land was served on "Sahil" a
newspaper company, by Land & Development Officer purporting to act on behalf
of Central Government as the lessors of the land on which the building of "Sahil"
was constructed. The ground of forfeiture was stated as 'unauthorized construction
on the land' Sahil challenged the action contesting that Sahil has started the
construction only after requisite sanction from the lessor. The action of lessor is
wholly malafide, as Sahil's paper has been critical of Governmental policies. The
government did not specifically deny the allegation but stated these allegations are
not relevant to the matter in issue. Decide referring judicial decisions.
4. What is quasi-judicial action? Has the relevance of strict classification of administrative
action been lost after Supreme Court's landmark judgment in A.K Kralpak v. Union of
India?
5. Write short notes on
a. "Wednesbury unreasonableness"
b. Administrative Tribunals.
6. Discuss the constitutionality of delegation of legislative power to the executive?
7. How does the judiciary exercise control over delegated legislation?
8. What is conditional legislation? Distinguish it from delegated legislation.
9. The maxim delegates non potest delegare does not lay down a rule of law Comment How
does the legislature exercise control over rule making power delegated by it to the
executive?
10. Discuss the need of delegated legislation in present day scenario. What are the constitution
limits of delegated legislation? Explain.
11. Write notes on the following:

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 (a) Difference between delegated legislation and conditional legislation
(b) Procedural control over delegated legislation

12. Explain the term Delegated Legislation. Do you think that the delegated legislation is a
need in the present welfare state in India? Discuss.
13. Discuss the method of judicial control over delegated legislation with the help of decided
cases.
14. Discuss the constitutionality of Delegated Legislation with special reference to In re Delhi
Laws Act. Also explain the difference between essential and non-essential legislative
functions.
15. While conferring the power of Delegated Legislation on the Administration, the enabling
act may specify the procedural safeguards to be followed in the exercise of that power"
What are the consequences of non-compliance with the requirement as laid down in the
Act? Discuss with the help of decided cases on this point.
16. What do you mean by delegated Legislation? "Essential Legislative Functions cannot be
delegated". Explain with the help of case law.
17. What is meant by the doctrine of ultra-vires? Explain how far the doctrine of ultra virus is
the chief Instrument in the hands of judiciary to control delegated legislation. Refer to case
law.
18. What do you understand by Delegated Legislation? Discuss the constitutionality of
delegated Legislation with the help of decided cases.
19. Explain the method of procedural control over the delegated Legislation with the help of
decided cases.

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 ADMINISTRATIVE ACTION

It is a very comprehensive term in which all the action of administration are included.

Administration is the meeting point of all the three points of the govt.

The executive performs the residuary of all these functions which are not vested in the two other
branches of govt. the legislature and the judiciary.

Definition of Administrative Action

The nature of the administrative action has been defined by the SC.

Ram Jawaya Kapur and Ors. vs The State of Punjab 1955

In this case speaking for the court, CJ Mukherjee observed that “it may not be possible to frame
an exhaustive definition of what executive function means and implies. Ordinarily the executive
power connotes the residue of governmental functions that remain after legislative and judicial
functions are taken away” thus administrative action is that action which is neither administrative
nor judicial in character.

Ingredients of Administrative Action

1. Administrative action is generally based on govt. policies and expediency.

2. Administrative action is subjective rather than objective.
3. While taking a decision on administrative authority may not only consider adduce by the
parties to the controversy but also use its discretion.
4. An administrative authority decision may held be invalid on the ground of
unreasonableness
5. Administrative authority is not required to follow the elaborate procedure of collecting
evidence.
6. Administrative authority may be delegated and sub delegated.

Jayantilal Amrit Lal Shodhan vs F.N. Rana 1963 held as same as above

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It is customary to divide functions of government into three classes, legislative, executive (or
administrative) and judicial.

Classification of Administrative Actions:

1. Pure administrative action.

2. Quasi-legislative action or rule making action.

3. Quasi- judicial action or rule decision action.

Pure Administrative Action:

This includes the actions which are neither legislative nor judiciary but administrative in nature.
Example: Preventive Detention action. B. Constitution of a Committee.

Quasi- legislative or rule making action

It includes the rule making power and delegated legislation. Under this organ the administration
performs the functions of legislation in such a situation where it is not possible for the legislature
to pass the law due to the conflicts arising. Example: ordinance. Civil servant efficiency rules
1973.

Quasi-Judicial Action or rule decision action

It includes such conditions under which the administration puts on the hat of the judiciary and
confers the special power of taking cases where the legal rights of the individual are affected
Example: preventive detention, acquisition requisition of property, power to issue license, Civil
servant efficiency rule 1973 where the disciplinary proceeding against an employee and servant.

AK Kraipak v. Union of India 1970

The court held that “in order to determine whether the action of administrative authority is quasi-
judicial or administrative in nature, one has to see the power conferred, to whom the power is

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conferred, the framework under which the power has been confirmed and the consequences of
exercise of such power”.

In article 14 and 21 of the constitution, the concept of natural justice is defined in case of
consequences suffered in administrative action:

1. No one should be made a judge in his own cause or the rule against bias.
Nemo Judex In Causa Sua

2. No man can be condemned unheard. Audi Alteram Partem

23 March 2023

Differences Between Legislative and Judicial Actions

Legislative And Judicial Actions:

Legislation is formulation of general rules which are to be operative in future. There is generality
about the application of legislative provisions.

Judicial functions are in contradiction to legislative function, it is particularly based on the facts
of a case and declares a pre-existing right. A judicial decision is taken on hearing the parties and
after examining the evidences. But this is not so in case of legislative actions.

✓ It is exercise by judicial action [-‘

✓ Limited to parties only.

Difference between Legislative and Administrative Action:

Publication:

if an order is legislative in character it has to be published in certain manner, but it is not necessary
in case of administrative action.

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Need of Compliance with the principle of natural justice: if an order is in legislative character
the compliance of principle of natural justice is not mandatory, but, if an order is an administrative
order and the authority was required to act judicially, principle of natural justice are required to be
observed.

Sub-Delegation: only in most exceptional circumstance, the legislative power can be sub-
delegated, but administrative process can be sub-delegated easily.

Duty To Give Reasons: The legislature while discharging legislative action are not bound to give
reasons, on the other hand every administrative authority must give reasons for their actions.

Quasi-Judicial Action Distinguished from Judicial Action (Important):

1. A quasi-judicial authority has some of the trappings of a court, but not all of them,
nevertheless there is an obligation to act judicially.

2. A Lis Inter Parties is an essential characteristic of a judicial action, but this may not be true
for a quasi-judicial action.

3. A court is bound to follow the rules of evidence and procedure while a quasi-judicial
authority is free from such requirements.

4. While a court is bound by judicial precedent, a quasi-judicial authority is not so bound.

5. In quasi-judicial acts the tribunal applies policy to the facts to decide the matter, on the
other hand the courts apply laws to the fact to pass their decisions.

(Legal suit between the parties, meaning of maxim written above).

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 Administrative Discretions:

Discretion implies power to make a choice between alternative courses of action.

Coke once said: discretion is a science or understanding to decide between falsity and truth,
between right and wrong and not to do anything according to the will and private affection.

Discretion in this sense means choosing from amongst the various available affection.

March 27, 2023.

Discretion ordinarily means choosing from amongst the various available alternative without
reference to any pre-determine criterion, no matter how fanciful that choice maybe.

Why Discretionary power is necessary

1. Change of expectation police state to welfare state.

2. Complexity and varying nature of problems.

3. New problems and lack of any previous experience to deal with them.

4. Difficult to foresee all the future issues and have rules accordingly.

5. Changes circumstances from case-to-case forces to apply different rule in different

perception.

Scope of Administrative Law

They range from simple ministerial functions like maintenance of birth and death register,
regulation of business activity, acquiring property for public purpose, investigation seizure,
confiscation, or detention of a person or subjective satisfaction of the administrative authority.

Why Controlling Mechanism to control administrative law

1. Failure to exercise discretion power.

2. Abuse or misuse of discretion.

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 3. Non-compliance with the principle of natural justice. Resulting in infringement in
fundamental rights.

Failure To Exercise Discretion:

A. Acting mechanically.

B. Abdication of powers.

C. Imposing fetters on the exercise of discretion.

D. Acting under dictation.

E. Non-application of mine.

Abuse or Misuse of Power (Discretion)

A. Exceeding jurisdiction.

B. Irrelevant consideration.

C. Leaving out relevant consideration.

D. Mixed consideration.

E. Malafide intention.

F. Improper purpose.

G. Colorable exercise of power.

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 March 28, 2023.

Administrative Adjudication.

Art 323A and 323B talk about administrative tribunal. Adjudication done by administrative
authority; they have to follow principles of natural justice.

Administrative adjudication means administrative decision-making power related to person or

property rights. It is the determination of questions of a judicial or quasi-judicial nature while
administrative department or agencies. It is a legal process of resolving a dispute or deciding a
case.

Need and causes for administrative Adjudication

1. Desire to have administrative body which should be quick, Cheap, informal.

2. To reduce or shift the burden of court.

3. To explore new public standard based on socialist approach rather than individualistic
approach.

4. Employee State Insurance Corporation. Adjudicated by administrative authorities.

5. Town Planning, including housing industrial and amenities requires new standard to be
framed, expertise specialization and experimentation is required which can only be dome by
administrative adjudication.

6. Developing of new standard with regard to Environmental hazardous and pollution control
rules can framed only by experts dealing with environmental issue laid down by administrative
authorities.

7. Represent a functional approach granting license tribunal national tribunal

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 To regulate the relationship between labour and management whole spectrum of industrial
harmony necessary for national development is to be kept in view. Therefore, decision is to be
reached not through strict principle of law but mutual give and take policy consideration by
the administrative adjudication.

Significance of Administrative Adjudication:

1. Policy consideration.

2. Inadequacy of judicial system.

3. Merits of the system of administrative adjudication.

4. Junctional approach to socio-economic problems.

5. Need for expertise.

6. Preventive measures.

7. Functioning of tribunal.

28 march 2023

Procedure of administrative Adjudication

✓ A person can bring a service matter before a tribunal by making an application. An

applicant can take the assistant of legal practitioner on receipt of application if after the

application the tribunal is satisfy the application is fit for adjudication of consideration it

will be accepted by the tribunal. However, if the tribunal is not satisfied it will reject the

application after recording the reason.

✓ The administrative authority is not bound to follow the procedure followed by the CPC

1908. While functioning under the provision of administrative tribunal, act and rules

framed the central govt. it has power to regulate own procedure

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 ✓ Procedure or rules can’t be contrary to the natural justice.

✓ The tribunal has all the power of civil court in respect of calling a person, administering

oath, compelling discovery and production of document, issuing commission, reviewing

its own decision etc.

✓ As regards contempt, the tribunal has the same jurisdiction as the high court. It can be

exercising its power in respect as high court exercise.

✓ A person can himself make application to the tribunal or can take assistance from legal

Practitioner of his own choice.

✓ All the procedure before the tribunal shall be deemed to be judicial proceedings, NGT,

industrial tribunal.

M.J. Sivani vs State of Karnataka 1995

The court reiterated that when the rules direct for recording reasons it is a syne qua nom and a
valid precedent for valid order.

Problem of administrative adjudication

1. Number and complexities

2. Un systematic system of appeal

3. Invariability of the decision

4. Un predictability of the decision

5. Combination of problem

6. Variety of reason

7. Unsystematic, vague

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 UNIT-III

SYLLABUS

DELEGATED LEGISLATION

Meaning, Reasons for Growth and Limits of Delegated Legislative Power.

Constitutionality of Delegated Legislation, Power of Exclusion & Inclusion and Power to

Modify Statute-Conditional Legislation and Delegated Legislation

Controls over Delegated Legislation: Parliamentary Control, Procedural Control and Judicial
Control

05th April 2023

DELEGATED LEGISLATION

1. Meaning: An instrument of a legislative nature made by an authority in exercise of power

delegated or conferred by the legislature.
2. It is also called as the subordinate legislation.
3. It is designed by several names such as rules, regulation, bye-laws, orders, schemes and
notification.
4. Article 13(3)(a): Law includes any ordinance, order, byelaws, rules, regulations,
notifications, custom or usage having in the territory of India the force of law.

Salmond Definition on Delegated Legislation: Delegated Legislation is that which proceeds from
any authority other than the sovereign power and is therefore, dependent for its continued existence
and validity on some superior or supreme authority.

Example: (i) The Environmental Protection Act, 1986 empowers the Centre under section 6 to
make rules for carrying out the purpose of the act. (This belongs to the ministry of Environment
and Forest- in the exercise of the powers conferred by section 6 of the act, the Centre thereby
makes the following rules which may be called as The Environment Protection Rules, 1986).

(ii) Similarly, The Income Tax Act, 1961 empowers the board to make rules for carrying out the
purpose of the Act.

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(iii) The Essentials commodities Act, 1955 empowers the government under Section 3 to regulate,
prohibit the production, supply and distribution of the essential commodities.

Reasons for the growth of delegated legislation

1. Pressure upon the Parliamentary time,

2. Technicality,
3. Flexibility,
4. Experimentation,
5. Emergency.
6. Confidential matters
7. Complexity of modern administration.

Constitutionality of Delegated legislation

1. Here, the question is about the permissible limits of the constitution within which the law-
making power may be validly delegated by the legislature.
2. In Re: Delhi laws Act, 1912:
a. A reference as made by the President to the Supreme Court under article 143 of the
Constitution to declare the constitutionality of 3 Acts.
b. The Delhi Laws Act, 1912, s. 7, s.2 of the Ajmer-Merwara Extension of Laws Act,
1947 & s. 2 of the Part C State Laws Act, 1960.
c. Opinion:
i. Doctrine of Separation of Power is not a part of Indian Constitution.
ii. Parliament was never considered as an agent of anybody. No application of
Delegatus Non Potes Delegare.- A delegated cannot further delegate.
iii. Parliament cannot abdicate itself by creating a parallel legislative body,
iv. Power of Delegation is ancillary to power of legislation.
v. The subordinate cannot supplant the parent legislation.
vi. The limitation upon the power of the legislature is that the legislature cannot
part with essential legislative power which is vested on it by the
Constitution.

10th April, 2023.

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 vii. The court held that the acts are valid but the part of the third statute which
delegated the power of the repeal and modification of legislative policy
because it amounted to excessive delegation of power.

Excessive Delegation

(1) From this we can understand that excessive Delegation of Legislative Power is
unconstitutional.

(2) In order to analyse that whether the legislation is suffering from excessive Delegation or not,-
check whether the statute delegates essential Legislative Function.

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St. Johns Teachers Training Institute v. Regional Director, National Counsel for teacher’s
education, 2003

a. In this case the question before the court was that whether any particular legislation suffers
from excessive Delegation has to be decided having regard to subject matter of the statute
delegated, the scheme, the provision of the statute including its preamble and the fact and
circumstances in the background in which the statute is enacted.
b. Rules cannot be made to supplant the provision of the enabling act but to supplement it.
c. What is permitted is the Ancillary or subordinate Legislative Function.

Classification or forms of Delegated Legislation

1. Title based Delegation. – rules, bye-laws, notifications.

2. Discretion based Delegation. - Supreme authority confers the power to the executive and

the executive makes laws based on condition upon its discretion.

3. Authority based Delegation. - Where the sub-ordinate can further delegate legislates.

4. Nature based Delegation- Normal: positive (to do) and negative (to refrain or omit);

Exceptional (Henry VIII clause).

11th April, 2023

Conditional Legislation

Condition upon the necessity of such legislation.

a. When the legislature makes the law which is full and complete in all respects.
b. But it is not brought into operation immediately.
c. The enforcement of the law is made dependent upon the fulfilment of the condition.
d. It is delegated to the executive to determine whether the condition has been fulfilled or not,
by exercising its own judgment.

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 e. No legislative function is delegated to the executive. The act passed by the legislature is
not brought into effect, instead it is left to the executive to bring the Act into force or
operation on the fulfilment of certain conditions.

These types of legislation are called conditional legislation. Ex: Air Prevention and control of
Pollution act, Environment Protection Act, 1986. Factories Act, 1948, Constitution 44th
amendment Act, 1978.

Case Law:

Field v. Clark. 1892

a. The legislature cannot delegate its powers to make law.

b. It can make law to delegate a power to determine some facts or state of things upon which
the law intends to make its own action depends.
c. To deny, this would stop the wheels of the government.
d. There are many things on which a law is dependent which cannot be known to the law-
making power and must therefore be the subject of enquiry and determination outside the
scope of the legislature.

King Emperor v. Benori Lal Sharma

a. An ordinance promulgated by the governor general providing for the setting up of special
courts was in question
b. But the operation of it was left to the provincial government which can bring satisfaction
that emergency had come into existence in the province concerned.
c. The Privy council held that it was a piece of conditional legislation wherein the local
application of the provision of the statute is determined by the judgment of Local
administration body as to its necessity.
d. In other words, this is not delegated legislation the law is complete and what is delegated
was the power to apply the act on fulfilment of certain conditions.

Sardar Inder Singh v. State of Rajasthan, 1967

An ordinance that is Rajasthan (Protection of Tenant) was promulgated in 1949 for two years and
section 3 of it conferred on the Rajpramukh the power to extend the life of the ordinance by

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modification in the Rajasthan Gazette. He extend its life by two years and further again by one
year. The court held that the section 3 of the Ordinance comes within the category of conditional
legislation as the power is to extend the life of it.

State of Bombay v. Narottomdas Jethabhai

a. Bombay City Civil Courts Act, 1948 established an additional civil court for greater
Bombay. It shall have the jurisdiction to try all suits not exceeding 10 thousand in value
(section 3) and the state government is empowered to invest the court with the jurisdiction
to try and dispose of all suits of value not exceeding Rs. 25 thousand by notification in the
official gazette.
b. The court held that the discretion given to the state Government is to determine the
circumstances under which the new court would be clothed with enhance pecuniary
jurisdiction. It is conditional legislation and the legislature is not conferred with the
legislative power on the government.

Procedural control over Delegated Legislation

The Indian Constitution has established a Welfare State1 which mandates that the State shall
legislate on innumerable activities touching human lives in order to promote the ‘maximum
happiness of the maximum number of people’.

Consequently, the State has to undertake legislation on a variety of subjects. In view of this
increasing legislative activity, the legislatures will not find adequate time to legislate on every
minute details and limit themselves to ‘policy matters and leaving a large volume of area to
executives to frame rules to carry out the purposes of legislation. Thus, the need for delegation
became indispensable and it was sought to be justified on grounds of ‘speed’, flexibility and
adoptability’

It is not a surprise to find that during the years (1973-77) spanning a period of 4 years Parliament
enacted 300 statutes but the rules framed by the executive exceeded 25000. This has been observed
by the apex court in the Arvind Singh’s case.

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Judicial control over Delegated Legislation

The court review or check the validity of delegated legislation by applying the doctrine of ultra-
vires. Ultra vires means beyond powers. An act which is done in excess of power is ultra vires

Utravires are of two types: -

▪ Substantive ultra vires; and

▪ Procedural ultra vires.

(1) Substantive Ultra Vires

When a subordinate legislation goes beyond the scope of authority conferred on the delegate to
enact, it is known as Substantive Ultra Vires

It is a 'the central principle' and 'foundation of large part of administrative law that a public
authority cannot act outside the powers and if the authority acts, ‘such act becomes ultra
vires and, accordingly void.

substantive ultra vires includes the following cases:

• Exercising power in excess of statutory limits;

• Acting in excess of jurisdiction.

• Breach of the principles of natural justice

(2) Procedural ultra vires.

When the rule making authority does not follow the procedure prescribed by the parent Act

When a subordinate legislation is enacted without complying with the procedural requirements
prescribed by the Parent Act or by the general law, it is known as procedural ultra vires.

Ground on which the delegated Legislation can be invalid are as follows: -

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When the Parent Act is unconstitutional: -

i. In india constitution is the supreme law of the land. According to the article 13(2)
the states shall not make any law which takes away or abridges the rights conferred
by part III. Any law made in contravention shall be void.
ii. Article 245 makes it clear that the legislative power of the parliament and that of
the state legislature are subject to the provision of the constitution.
iii. If enabling or parent act providing for the delegation of legislation is void, then the
subordinate or delegated legislation made under the act will also be declared to be
unconstitutional and void.

In Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 case, the parent Act authorized
the Deputy Commissioner to prohibit the manufacture of bidis in some areas during certain
periods. When the Deputy Commissioner passed such an order, it was held that the parent Act was
unconstitutional as it violated Article 19(1) (g) of the Constitution which confers a fundamental
right to carry on any occupation, trade or business. Thus, the Court, therefore, struck down the
order passed by the Deputy Commissioner.

1. Delegated Legislation is ultra-vires to constitution.

2. Delegated Legislation is inconsistent with the parent Act
3. Delegated legislation is inconsistent with general law
4. Delegate legislation is arbitrary and unreasonable.
5. Delegated legislation is malafide.
6. Delegated legislation operated retrospectively.
7. Where delegated legislation further delegates
8. When delegated legislation is beyond judicial review.

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 20 April 2023

Parliamentary control over delegated Legislation

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

The parliamentary control of delegated Legislation basically contains three main

procedures: -

The legislature is entrusted with the power to legislate.it can also delegates its power but it has a
power to control or supervise to the power delegated to executive.

Power tends to corrupt and absolute power corrupts absolutely

Memorandum on delegation –

A Parliamentary Control on delegation legislation in the stage of delegation of power

by the legislature.

A Bill that involves proposal for delegation of legislative power must have a
memorandum explaining the proposal scope, nature or character the points to be
covered in the rules particular of subordinate authority and the manner in which power
is to be exercised.

Laying procedure: -

a. the parliamentary control can be exercised if the houses of the parliament is

informed of the content of the Delegated Legislation.
b. Informs the legislature of the rules made by the executive authorities
c. An opportunity to the legislature to question or challenge the delegated legislation
d. To lay rules before the houses depends on the terms of the parent statute

e.g., Section 6 of the Essential Commodities Act 1956,

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 Every order made under this section by the Central Government or by any officer or
authority of the Central Government shall be laid before both Houses of Parliament,
as soon as may be, after it is made.

Sec 212(3) The Motor Vehicles Act, 1988, (3) which states that Every rule made by any
State Government shall be laid, as soon as may be after it is made before the State
Legislature

24 April 2024

Non- compliance with the lying provision: - Legal consequences

The consequences of non-compliance with the laying procedure depend on whether the provision
in the enabling act is mandatory or directory.

Narendra Kumar vs. uoi 1960.

Essential commodities Act 1950, Sec 3(5) and (6) are mandatory.

Non-Ferrous Metal Control Order 1958, (4). It has no effect unless laid before Parliament.

Atlas Cycle Industry Ltd. V. State of Haryana 1979.

Essential Commodities Act 1950 section 6(5). A notification fixing maximum selling price of
various category of iron steel, this was not placed before the parliament. The court held that: -

(a) Non- laying of the notification cannot result in nullification of the notification.

(b) The legislature never intended that non- compliance with the requirement of laying
should render the order void.

(c) The important point to be considered in the absence of provision prescribing the
condition, the period and the legal effect of the laying of the order before Parliament is
whether the provision is directory or mandatory.

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The court must ascertain the true intentions of the legislature which is the determining factor and
must be done by looking carefully to the whole scope, nature, and design of the statute.

Hukum Chand v. Union of India 1972

In this case the court held that, the laying provision is mandatory. The rules which were made
without laying before the parliament were struck down as being utravires the power of the
administrative agency.

The true consideration regarding a provision as directory or mandatory are: -

(1) Absence of any provision for contingency of particular provision has not been complied
with or followed.

(2) Serious and general inconveniences and prejudice that result to the general public if the
act of the govt. Is declared invalid for non-compliance with the particular provision.

The object behind the provision relating to laying a delegated Legislation is to keep supervision
and control over the authority.

The laying clause assume different form depending on degree of control which the legislature may
like to exercise.

The three kinds of laying which are generally used by legislature are: -

(1) Laying without further procedure.

(2) Laying subject to negative resolution

(3) Laying subject to Affirmative resolution.

✓ Each case depends on its own circumstances and the wording of the statute under which
rules are made
✓ Section 3(6) merely provide that Every order made under this section by the Central
Government or by any officer or authority of the Central Government shall be laid before
both Houses of Parliament, as soon as may be, after it is made.

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 ✓ It does not provide that it shall be subject to the negative or Affirmative resolution by either
house of the parliament. It does not specify that shall be subject to any modification. The
period for which the order is laid, penalty for non-complying as to laying.
✓ The condition of a laying is not a condition precedent but Condition subsequent to the
making of orders.
✓ The requirements under the section falls under the first category of laying simple laying as
it is directory and non-mandatory. The non laying of the notification before Parliament
does not make it void.

Kinds of Laying

(1) Laying without further procedure: - simple Laying, section 6 of the essential commodities
Act.

(2) Laying subject to Negative resolution: - The rules come into force as soon as they are made
and the laying procedure subsequently and if the parliament disapprove it will cease to operate
thereafter.

(3) Laying subject to Affirmative Resolution: - Some delegating statute require that rules are to
be laid before both the house of the parliament before they became enforceable.

In this case the rules are laid in the draft form and become effective when the houses pass
resolution affirming the rule.

1. Salaries and the Allowances of minister Act 1952. Sec (11).

2. The essential services maintenance Act 1968, Sec 2(2), here the parliamentary resolution
is a condition precedent for the validity of rule.

8 May 2023

Procedural control over Delegated Legislation

1. There are certain guidelines or procedure given in the parent act.

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 2. The procedural control works at the effective control `over the exercise of power by

administrative Authorities.

3. Procedural control over delegated legislation ensures effective participation of the people

in the making of delegated legislation.

4. It has positive impact on the acceptance and the effectivity of the delegated legislation.

Kinds of procedural control are: -

1. Consultation.

2. Ante-natal publicity or previous Publication

3. Post-natal publicity or publication.

1.Consultation –

I. Prior consultation of interests likely to be affected by proposed delegated Legislation:

From the citizen's post of view the most beneficial safeguard against the dangers of the
misuse of delegated Legislation.
II. Legislature is entrusted with the duty of enacting laws.
III. Introduction of Bill, Discussion on the bill and then passing of it.
IV. Delegated Legislation lacks public debate, misuse of power.

Consultation with the affected interest is the method that fulfills the requirement of public
participation in the rule making or presentation of the views by the people for whom the rules
are made and also works as safeguard against the misuse of power by the rule making authority.

Consultation is the process of full and effective deliberation, exchange of mutual viewpoint,
this process will enable to arrive at an accurate or at least satisfactory conclusion to a matter.

It is beneficial for both the rule making authority and for the person on whom the rule is to be
applied.

Section 33 in the Drugs and Cosmetics Act, 1940 which states that the Central Government
may 169 [after consultation with, or on the recommendation of, the Board] and after previous

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 publication by notification in the Official Gazette, make rules for the purposes of giving
effect to the provisions of this Chapter.

Publication

it means the action of making something generally known.

It can be of two types

1. Ante-natal publication.
2. Post-natal Publication.

Ante-natal publication

Prior publicity of proposed rules and regulations- publicity of statutory rules to inform those
likely to be affected by the proposed rules and regulations so as to enable them to make
representation for consideration of the rule-making authority.

Example 212 of the Motor Vehicle Act 1988.

Publication, commencement and laying of rules and notifications. —
(1) The power to make rules under this Act is subject to the condition of the rules being made
after previous publication.

(2) All rules made under this Act shall be published in the Official Gazette, and shall unless
some later date is appointed, come into force on the date of such publication.

Section 29 of The Minimum Wages Act, 1948

29. Power of the Central Government to make rules. The Central Government may, subject to
the conditions of previous publication, by notification in the Official Gazette, make rules
prescribing the term of office of the members, the procedure to be followed in the conduct of
business, the method of voting, the manner of filling up casual vacancies in membership and the
quorum necessary for the transaction of business of the Central Advisory Board.

Section 23 in The General Clauses Act, 1897 that talks about ante natal publication

23 Provisions applicable to making of rules or bye-laws after previous publication. —Where, by

any 41 [Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given

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subject to the condition of the rules or bye-laws being made after previous publication, then the
following provisions shall apply, namely: —

(1) publish a draft of the proposed rules or bye-laws shall be published for the information of the
persons likely to be affected thereby;

(2) the publication shall be made in such manner as that authority deems to be sufficient.

(3) There shall be published with the draft a notice specifying a date on or after which the draft
will be taken into consideration;

(4) any objection or suggestion which may be received by the authority having power to make the
rules or bye-laws from any person with respect to the draft before the date so specified;

(5) the publication in the [Official Gazette] of a rule shall be conclusive proof that the rule or bye-
law has been duly made.

POST- NATAL Publication

“Ignorance of law is no excuse" A person who has violated a law is not entitled to the Defence
that they did not know of the law.

There are several statutes whose effective application depends upon the sub- delegation

Rights of the individual pr other matter are defined in the rule so it become pertinent to public the
sub-ordinate legislation.

212 of the Motor Vehicle Act 1988, sec 25 of the Environment Protection Act 1986.

State Of Maharashtra vs Mayer Hans George 1964

In the absence of any statutory requirement the rule is that subordinate or delegated legislation
should be published in the usual form, that is, by publication within the country by such media as
are generally adopted to notify to all persons concerned and publication in the Official
Gazette is the ordinary method of bringing a notification or rule to the notice of persons concerned.

Sometimes the present statute prescribes mode or manner of publication.

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Example, The Gujarat Agricultural Produce Markets Act, 1963

In some cases, the court consider the manner of publication and in some cases allow the substantial
compliance to the mode if publication of subordinate legislation.

Harla v. State of Rajasthan 1951

The supreme court has held that the delegated legislation can not take effect unless published.

UNIT- IV
SYLLABUS
NATURAL JUSTICE

Principles of Natural Justice

Audi Alterem Partem-Rule against Bias-Reasoned Decision
Consequences of Violation of the Principles of Natural Justice.

Previous Year Questions

1. "Ranbir" is an Engineer and also currently pursuing LL.B., evening Course from XYZ
University was dismissed from services on the charge of misconduct, after holding an
enquiry. The presenting Officer of the company was legally qualified person. "Ranbir" was
denied legal representation by the enquiry officer on the ground that he is qualified and can
defend himself. Is this decision of the enquiry officer valid? Discuss referring to judicial
decisions.
2. How far the doctrine of necessity permits exclusion of principles of natural justice?
Analyze with help of decided cases.
3. Kamlesh, Head of the Department, wrote confidential reports in respect of two of lower.
division clerks named Ramesh and Suresh. While he praised the work of Suresh and gave
him "very Good" rating, he gave "Poor" rating to Ramesh. Both Ramesh and Suresh
appeared before a departmental committee for promotion which included Kamlesh as a

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 member. Suresh was selected for promotion and was rejected. Will Ramesh succeed if he
challenges the selection? Substantiate your answer with reasons and case law.
4. What is meant by the maxim audi alteram partem? Discuss the two main elements of the
maxims.
5. Principles of natural justice are not rigid and inflexible in nature. Explain the statement
with relevant case law.
6. What is meant by personal bias? What are the tests applied by the courts in deciding the
same? Elucidate with sufficient case law on point. What do you understand by Fair
hearing"? Whether the right to cross examination as an integral art of fair hearing is an
inflexible rule of natural justice? Discuss with relevant case law (15 marks)
7. Discuss the need of administrative direction in a modern complex society. What is the
role of the Judiciary in keeping the administration within legal limits? Explain.
8. What do you mean by the term 'Natural Justice?" Bias vitiates all Judicial and quasi-
Judicial proceedings." Do you agree with this statement? Explain with the help of case
law.
9. "The "Audi alteram partem' rule is a very flexible, malleable, and adaptable concept of
natural justice, to adjust the need for speed and obligation to act fairly, it can be modified,
and the measures of its application cut short in reasonable proportion to the exigencies of
the situation" How far do you agree with the above statement? Illustrate your answer with
decided cases.
10. Explain the Natural Justice concept of 'Bins Under what type of circumstances the
presence of "personal Bias" have the effect of invalidating an action?
11. X filed a complaint against Y for professional misconduct. The enquiry committee was
appointed to enquire the conduct of Y. One of the members of the enquiry committee was
known to X, as he has represented him (X) in an earlier case also. Discuss the validity of
the decision of the enquiry committee.
12. What do you understand by the term 'Natural Justice"? "The concept of fairness in
administrative adjudication generally includes right to cross- examination and legal
representation." Do you agree with this view? Support your answer with recent judicial
pronouncements.

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Natural Justice.

Natural Justice is an ideal element in Administrative Law

Principles of natural justice are an extension of fairness in the administrative process.

In a broader sense, natural justice implies ‘the natural sense of what is right and wrong’ and ‘fair,
just and equitable’.

The principles of natural justice are applied to control the procedure by infusing the attributes of
procedural fairness, regularity and equitability. The procedural fairness can be ensured by giving
reasonable opportunity to a person against whom an adverse action is proposed to be taken to
present his opinion or version in Defence that’s why this action should not be taken against him.

Natural Justice is also known as natural law, universal law, divine justice or fair play in action.

Natural Justice is an expression of English common law having its origin in “Jus Naturale” i.e.,
Law of Nature: it involves the procedural requirement of fairness.

In England, it was initially applied to the courts but later projected from the judicial to the
administrative sphere. It is justice that is simple and elementary, and Fair play in action.

Fair exercise of power of Administration is possible when the power is used according to fair
play.

Natural justice is one of the most relevant and highly operational concepts of administrative law.
According to Justice Chinappa Reddy in the matter of Swadeshi Cotton Mills v. Union of India
(1981):

Natural justice, like ultra vires and public policy, is a branch of the public law and is a
formidable weapon, which can be wielded to secure justice to the nation.

The significance of the principles of natural justice was further explained by the Supreme Court in
Sangram Singh v. Election Tribunal, Kotah (1955) as under:

There must be ever present to the mind the fact that our laws of procedure are grounded on
a principle of natural justice which requires that men should not be condemned unheard,

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The Universal Rule of fair procedure is Audi alteram Partem i.e., hear the other party. Thus,
hearing means Natural justice or fairness.

As Justice Krishna Iyer in Shrikrishnadas Tikara v. State of Madhya Pradesh (1977) cautioned
that natural justice cannot be petrified or fitted into rigid moulds.

Elaborating the same approach, Justice Arijit Pasayat in Canara Bank v. Debasis Das (2003) held
that whether the particular rule of natural justice should be implied and what its context should be
in a given case must depend to a great extent on the facts and circumstances of that case.

Lord Reid in Redge v. Baldavin observed that in modern times opinions have sometimes been
expressed the effect that the natural justice is so vague as to be practically meaningless, but I would
regard as tainted by the perennial fallacy that because something cannot be cut and dried or nicely
weighted or measured therefore it does not exist.

In the case of AK Kraipak v. Union of India, the SC held that the purpose of the rule of natural
justice is to prevent miscarriage of justice and if one falls to see why those rules should be made
inapplicable to administrative enquiry.

Principle of Natural Justice

RS Das b. Union of India the SC stated that.

“It is well established that rules of Natural Justice are not rigid rule, they are flexible, and their
application depends upon “the setting and background of statutory provision. Nature of the right
which way be affected and consequences which may entail; its application depends upon fact and
circumstance of each case.

The Concept of natural Justice entails two principles:

1. Nemo Judex in causa sua.

2. Audi Alteram Partem.
The first principle of Natural justice is rule against bias. It means that deciding Authority must
be impartial and neutral that bias disqualification an individual from acting as judge flows from
two principles:

a. No one should be judge in his own cause.

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 b. Justice should not only be done but seem to be done.
In this regard, the judgment in Dimes v. Grand Junction Canal Company (1852) is referred to as
a landmark authority wherein Lord Campbell observed that the maxim, no one can be a judge in
his own case should be held sacred. It should be applicable to a cause where the judge is not a
party but has an interest.
Gajendra Gadkar in M/s Builders Supply Corporation v. the Union of India and Others (1965)
observed that it is obvious that pecuniary interest in a subject matter, however small it may be,
would disqualify an authority for being as a judge. It does not matter even if the interest in any
way influenced the decision or not, the process would be void.

Types of Bias

a. Pecuniary Bias (Manak Lal v. Premchand)

b. Personal Bias.
c. Subject-matter bias
d. Departmental bias
e. Policy bias.
Manak Lal v. Premchand, these observed that it is obvious that pecuniary interest however small
it may be in a subject-matter or in the proceeding good wholly disqualify a member to act as a
judge.

Personal Bias

In the case of SP Kapoor v. State of HP,

“Where the promotion considers the confidential report of the candidate prepared by an officer
who himself was one of the candidate for promotion. The SC quashed the selection.

Subject Matter Bias

Gulapali Nageshwar v. AP SRt in this case the SC quashed the decision of AP govt. which
nationalize road transport on the ground that the secretary of the transport department who gave
hearing was interested in the subject-matter.

Departmental bias

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In the case of State of UP v. RS Sodi the question was whether state police should investigate the
alleged fake encounter. Allegation were levelled against local police. According to SC
investigation into the matter bar the local police and independent agency was desirable.
Accordingly, the court directed CBI to investigate into the allegation.

Policy Bias

The Sc in the Govinda Raj Mudaliar v. State of Tamil Nadu observed that policy bias is inherent
in administrative process, and it cannot be eliminated.

Policy Bias may mean total absence of the pre-conception in the mind of the judge then no one has
ever had a fair trial, and no one knows well.

AUDI ALTERAM PARTEM

Procedural fairness is an important feature of rule of law. The basic postulates of procedural
fairness are impartiality in decision making and fair hearing.

Audi Alteram Partem means ‘hear the other side’ or ‘both the parties must be heard’ or ‘no one
can be condemned unheard.

Elaborating the attributes of fair, effective and adequate hearing, Justice Venkataraman Aiyar in
Union of India v. T.R. Verma AIR 1957 SC 882 observed:

“Rules of natural justice required that a party should have the opportunity of adducing all
relevant evidence on which he relies, that the evidence of the opponent should be taken in
his presence and that he should be given the opportunity of cross- examining the witnesses,
examined by the party and that no materials should be relied on against him without his
being given an opportunity of examining them”.

Rule of hearing: The maxim includes two ingredients.

a. Notice:
b. Hearing
I. Notice:

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The basic Principle of Natural Justice is that before any action is taken, the affected interest must
the given notice to show cause action against the proposed action the proposed action and seek his
explanation.

Essential Requirement

a. Adequacy of notice (time, place and nature of hearing).

b. Legal Authority and jurisdiction under which the hearing is to be held.
c. The matter of facts and law as regard charge.
II. Hearing
The second requirement of Administrative A that party concern must be given opportunity of being
heard before any adverse action is taken against him.

Maneka Gandhi v. Union of India

The passport of the petitioner was impounded by govt. of India in public interest. No opportunity
was before taking any impugned action the SC held that the order was violative of Principle of
Natural justice.

There are two types of hearing:

a. Oral hearing
b. Fair Hearing.
Three principles:

a. Cross examination
b. Legal representation.
c. Right to know evidence

18th May, 2023

NATURAL JUSTICE PRINICIPLE IN ADMINISTRATIVE LAW

The most fundamental principle of Administrative Law.

It is needed because:

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1. It ensures fair procedure (achieved through fair hearing).
2. Safeguard against the misuse of governmental Authority.
3. Justice Bhagwati in the case of Maneka Gandhi v. Union of India held that fair playing
action is one of the important principles of the natural justice.
4. It is a great humanising principle.
5. Lord Esher: sense to distinguish.
6. Lord Parker: Between wrong and right.
7. Mohinder Gill v. Chief Election Commissioner: The concept of Natural justice should be
every action whether judicial, qasi judicial has to be followed in every case.
8. Purpose of Natura Justice:
a) Rule of Law
b) Fair play
c) Loophole of law.
d) Fundamental rights.
9. Committee of ministers’ power or friend’s committee laid down the following guidelines
regarding Natural Justice:
a) No one shall determine in his own case.
b) No one should be convicted without a hearing.
c) A party has a right to know all the causes of the decision e.g. speaking order,
reasoned decision.
d) From where we get:
i. Preamble
ii. 14, 21, 22, 39A
iii. 32, 226
e) Fair hearing includes two things.
i. Oral Hearing: Legal Representative
ii. Fair Hearing: documentation must have relevance.
10. Consequences of Violation of principle of Natural Justice.
The decision will be void.
a. If any decision is rendered in violation of principle Justice that would be void.
b. A void order is legal and valid unless quashed by a competent Authority.

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 c. A Void order is void in the eyes of law. Nullity, void ab-initio.
d. Ridge v. Baldwin
e. State of Kerala v. MK Kunhikannan Nambiar, the SC said that the word void is not
determining of its impact. The word has a relative rather than absolute meaning. It
connotes the idea that the order is invalid or illegal it can be voidable.
f. A void order can’t be said to be non-existent in all cases or in all situations ordinarily,
such an order well impact be effective among the party until it is successfully avoided
or challenged in the higher court.
g. Jurisdiction: void
h. Rule against bias: voidable.

UNIT- V

LAW OF WRITS, OMBUDSMAN & RTI

Syllabus

Judicial Review of Administrative Actions

Public Law Remedies (Writ Remedies)-Private Law Remedies

Transparency and Accountability in Governance: Institution of Lokpal and Lokayuktas

(Ombudsman)-The Right to Information Act, 2005- -Judicial Standards and Accountability

1. Advice the following keep in mind the right of issuance of writ through judicial review.
a) A minister of Aviation announced in the Parliament for starting a flight to Gulf
from different airports in India within 6 months period. However, no flight was
started within the stipulated time. A non-resident Indian wants to file a writ of
Mandamus in the High Court compelling the Minister to start the flight. Advice and
give reasons.

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 b) An authority exercises jurisdiction in a matter which did not directly fall within its
jurisdiction. Which writ can be issued, Mandamus or Certiorari or both.
2. Write short notes on
(a) Quo Warranto
(b) Certiorari
(c) Lokpal
3. Discuss the various statutory remedies available to a person aggrieved by any action of an
administrative authority.

4. Write short notes on

(a) Lokpal and Lokayukta Act, 2013
(b) Judiciary and the RTI
(c) Writ of Habeas Corpus. What are the limits of Judicial review in Administrative
action ?

5. Discuss the scope and significance of public interest litigation in the present day context.
Do you think that "a" writ petitioner who comes to court for relief in public interest must
come not only with clean hands like any other writ petitioner, but also with a clean heart,
clean mind and clean objective? Give your opinion in the light of Judicial decision.

6. Write notes on the following.

(a) Writ of Quo warrants
(b) Institution of Lokpal in India.

7. What are the grounds on which a High Court or Supreme Court can issue a writ of Habeas
Corpus? Whether the writ of Habeas Corpus can be suspended during emergency? Explain.
"In the matters of larger public interest, the requirement of locus standi has been liberally
construed" Discuss with the help of judicial decisions.

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 8. The purpose of the office of the Lokpal is not to adjudicate but to provide regular machinery
for investigating grievances against the administration in a discreet and informal way."
Critically ex- amine the above statement by giving powers and functions of the office of
the Lokpal.

9. Explain the nature of the writ of Mandamus and the grounds on which it can be issued?
10. Examine the nature of the powers of the High Court under Article 226 of the Constitution
and distinguish it from the power of the Supreme Court under Art 12 of the Constitution
11. Discuss the nature of the writ of Habeas Corpus. Explain the grounds on which it can be
issued. Whether the production of the body of the detained person before the court is an
essential feature of the writ ? Refer to case law.
12. Write short notes on any two of the following.
(a) Lokpal,
(b) Public Interest Legislation.
(c) Writ of Mandamus.
13. Define the writ of certiorari What are the grounds on which the writ may be issued? Who
may apply for the writ? Discuss
14. What do you understand by the term 'Lokpal”? "The purpose of Lokpal is not to adjudicate
but to provide a regular machinery to investigating grievances against the administration
in a discreet and informed way Discuss its suitability in the present-day context in India.

Judicial Review is a great weapon through which arbitrary, unjust, harassing, and
unconstitutional laws are checked.

Judicial review is the cornerstone of constitutionalism, which implies limited Government.

Judges exercise judicial power with the authority of judicial review i.e., a court’s power to review
the actions of other branches of government, especially the court’s power to invalidate legislative
and executive actions as being unconstitutional.

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Judicial Review of Administrative action is part of enforcing the constitutional discipline over
the administrative agencies while exercising their powers. Administrative action may be statutory,
having the force of law, or non-statutory, devoid of such legal force.

Justice H.R. Khanna in case of ADM Jabalpur v. Shivakant Shukla opined that judicial review
has become an integral part of our constitution and power has been vested in the High Courts and
the Supreme Court to decide about the constitutional validity of the provisions of statutes. If the
provisions of the statutes are found to be violative of any of the articles of the constitution which
is the touchstone for the validity of all laws, the Supreme Court and the High Courts are
empowered to strike down the said provision.

In S.R. Bommai v. Union of India, the Supreme Court held that Judicial review is an essential
component of the rule of law, which is a basic feature of the Indian Constitution.

Types of Review

Generally, there are four types of reviews.

1. Legislative Review
2. Judicial Review
3. Constitutional Review
4. Administrative Action Review

Grounds for Judicial Review of Administrative Actions

The administrative body is subjected to give a decision and there may be a chance that the decision
is not fair. Therefore, there is a need for judicial review of quasi-judicial action of the
administrative body. On certain grounds judicial review can be applied; if the administrative
agency is operating:

1. Ultra Vires
2. In excess of jurisdiction
3. In lack of jurisdiction
4. In violation of the principles of natural justice or
5. Violating the constitutional provisions

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Apart from the ground of ultra vires, which is common to all statutory bodies, the other grounds
are there where the court has the competence of judicial review.

The Judiciary is separate and Independent and vast powers are conferred on Judiciary to adjudicate
the disputes, entail fines & penalties, and foremost, the interpretation of the law. It is a court’s
authority to review the actions of other branches or levels of government, concerning the court’s
power to invalidate legislative and executive actions as being unconstitutional.

The Right to Information Act, 2005

Previous year Question’s

1. What is the objective of Right to Information Act 2005. Discuss the ground of refusal

to disclose information?

2. Write a short on Judiciary and RTI?

3. Can the information relating to disclosure of assets by individual judges of the

supreme court to the chief justice of india be obtained under the RTI act 2005?

Elucidate with case law.

4. Are the political, parties “Public Authorities” subject to RTI.

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5. Explain the democratic dimension of Right to Information in the context of Scientific
development in information and communication Technology with regard to recent
development. Refer relevant provision and judicial decision.

RTI

The right to information is implicitly guaranteed by the Constitution. However, with a view to
set out a practical regime of securing information, the Indian Parliament enacted the Right to
Information Act, 2005 and thus gave a powerful tool to the citizens to get information from
the government as a matter of right.

Historical Background

The right to information gained power when the Universal Declaration of Human Rights was
adopted in 1948 providing everyone the right to seek, receive, information and ideas through
any media regardless of frontiers.

The International Covenant on Civil and Political rights 1966 states that everyone shall have
the right to freedom of expression, the freedom to seek and impart information and ideas of all
kinds. According to Thomas Jefferson “Information is the currency of democracy” and
critical to the emergence and development of a vibrant civil society. However, with a view to
set out a practical regime for the citizens to secure information as a matter of right, the Indian
Parliament enacted the Right to Information Act, 2005.

Genesis of RTI law started in 1986, through judgement of Supreme Court in Mr. Kulwal Vs.
Jaipur Municipal Corporation case, in which it directed that freedom of speech and
expression provided under Article 19 of the Constitution clearly implies Right to Information,
as without information the freedom of speech and expression cannot be fully used by the
citizens.

Historical Background

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 The right to information gained power when the Universal Declaration of Human Rights was
adopted in 1948 providing everyone the right to seek, receive, information and ideas through
any media regardless of frontiers.

The International Covenant on Civil and Political rights 1966 states that everyone shall have
the right to freedom of expression, the freedom to seek and impart information and ideas of all
kinds. According to Thomas Jefferson “Information is the currency of democracy” and
critical to the emergence and development of a vibrant civil society. However, with a view to
set out a practical regime for the citizens to secure information as a matter of right, the Indian
Parliament enacted the Right to Information Act, 2005.

Genesis of RTI law started in 1986, through judgement of Supreme Court in Mr. Kulwal Vs.
Jaipur Municipal Corporation case, in which it directed that freedom of speech and
expression provided under Article 19 of the Constitution clearly implies Right to Information,
as without information the freedom of speech and expression cannot be fully used by the
citizens.

In Maneka Gandhi vs. Union of India, Justice V. Krishna Iyar opined that “A government
which functions secretly not only act against the democratic decency but buried itself with its
own burial.” In a democratic setup there must be direct participation of the people in the
democracy. This participation is meaningless unless the citizens are well informed.

It a means by which citizen seek information from Govt. Authority.

It promotes a framework of partnership between public and governmental Authority.

Objectives of Right to Information Act, 2005

• To empower the citizens; - To provide for setting out practical regime of RTI for citizen to
secure access to information under the control of public Authority.

• To promote transparency and accountability: - to empower the citizen. Promote

transparency and accountability in the making of the public authority.

• To contain corruption

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 • To enhance people’s participation in democratic process: to make our democracy work for
the people in real sense.

Information Exempted from Disclosure

• Sub-section (1) of section 8 and section 9 of the Act enumerate the type of information
which is exempted from disclosure. Sub-section (2) of section 8, however, provides that
information exempted under sub-section (1) or exempted under the Official Secrets Act,
1923 can be disclosed if public interest in disclosure overweighs the harm to the protected
interest.

• The information which, in normal course, is exempt from disclosure under sub-section (1)
of Section 8 of the Act, would cease to be exempted if 20 years have lapsed after
occurrence of the incident to which the information relates. However, the following types
of information would continue to be exempt and there would be no obligation, even after
lapse of 20 years, to give any citizen:

• Information disclosure of which would prejudicially affect the sovereignty and integrity
of India, the security, strategic, scientific or economic interest of the State, relation with
foreign state or lead to incitement of an offence.

• Information the disclosure of which would cause a breach of privilege of Parliament or

State Legislature.

Important section

2(f) 'information" means any material in any form, including records, documents, memos, e-
mails, opinions, advice, press releases, circulars, orders, logbooks. contracts, reports, papers,
samples, models, data material held in any electronic form and information relating to any private
body which can be accessed by a public authority under any other law for the time being in force.

2(I) "right to information" means the right to information accessible under this Act which is held
by or under the control of any public authority.

Public authority [Section 2(h)]

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Section 2(h) defines “public authority”. Public authority is an authority or body or institution of
self-government which is directly or indirectly related to the government. Such authority may be
related to the government in any of the following ways:

I. It is established or constituted by or under the Constitution.

II. It is created by an Act of Parliament
III. It is created by an Act of State Legislature
IV. It is established or constituted by a notification issued or order made by the
appropriate government.

Section 12 of the Right to Information Act, 2005 deals with the constitution of a statutory
body known as the Central Information Commission.

According to this provision, the central government shall constitute a body called the Central
Information Commission by passing a notification in the Official Gazette. The Central Information
Commission is entitled to exercise the powers conferred to it and perform its duties and functions
as per this legislation.

Section 15. deals with Constitution of State Information Commission. — (1) Every State
Government shall, by notification in the Official Gazette, constitute a body to be known as the
(name of the State) Information Commission to exercise the powers conferred on, and to perform
the functions assigned to, it under this Act.

Power and functions of Information Commissions

Section 18 of the Right to Information Act, 2005 talks about the powers and functions of the
Information Commission.

1. As per this provision, it is a duty of the Central Information Commission and the State
Information Commission to inquire the complaints received from any person.
I. who has been unable to submit a request for information to a Public
Information Officer.
II. who has been refused to get access to the information requested under this
statute.

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 III. who has not been receiving any response for the application he/she made
for information?
IV. who has been required to pay an unreasonable amount of fee.
V. who believes that the information provided by the officers are false,
misleading and incomplete in nature?
2. Where the Central Information Commission and the State Information Commissions, while
inquiring are satisfied with the reasonableness of the complaints, it may intimate an inquiry
and the Central Information Commission and the State Information Commissions have the
same power as of the civil court while intimating a suit under the Civil Procedure Code,
1908, like to:
I. summon the attendance of any person or compel any person to
give written or oral pieces of evidence on oath or order him to
produce the documents or things.
II. require the discovery and inspection of any documents.

Penalties

Section 20 of the Right to Information Act, 2005 deals with the provision related to penalties.

If the Central Information Commission or the State Information Commission is of opinion that the
Public Information Officer has not performed his duty and without the reasonable cause, reject or
refuse to entertain the application made by the complainant, or with malafide intention reject or
refuse the application made by the complainant, or intentionally provide false, misleading and
incomplete information, such officer shall be liable to pay a penalty of Rs. 250 per day till the
application is received or furnished and the Central Information Commission or the State
Information Commission may recommend disciplinary action against such Public Information
Officer either at central or state level.

Time Period for Supply of Information

I. In normal course, information to an applicant shall be supplied within 30 days from the
receipt of application by the public authority.

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 II. If information sought concerns the life or liberty of a person, it shall be supplied within 48
hours. In case the application is sent through the Assistant Public Information Officer, or
it is sent to a wrong public authority, five days shall be added to the period of thirty days
or 48 hours,

Importance of Right to Information Act, 2005

The Right to Information Act, 2005 did not create a new bureaucracy for implementing the law.
Instead, it tasked and mandated officials in every office to change their attitude and duty from
one of secrecy to one of sharing and openness. It carefully and deliberately empowered the
Information Commission to be the highest authority in the country with the mandate to order any
office in the country to provide information as per the provisions of the Act.

It empowered the Commission to fine any official who did not follow the mandate. Right to
information has been seen as the key to strengthening participatory democracy and ushering in
people centered governance. Access to information can empower the poor and the weaker sections
of society to demand and get information about public policies and actions, thereby leading to their
welfare.

Right to information opens up government’s records to public scrutiny, thereby arming citizens
with a vital tool to inform them about what the government does and how effectively, thus making
the government more accountable.

Improves decision making by public authority by removing unnecessary secrecy which prevails in
the offices.

Challenges

Different types of information are sought which have no public interest and sometimes can be
used to misuse the law and harass the public authorities. For example-

• Asking for desperate and voluminous information.

• To attain publicity by filing RTI Applications

• RTI filed as vindictive tool to harass or pressurize the public authority.

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 • Because of the illiteracy and unawareness among the majority of the population in the

country, the RTI cannot be exercised.

• Though RTI’s aim is not to create a grievance redressal mechanism, the notices from

Information Commissions often spur the public authorities to redress grievances.

In Hamdard Dawakhana v. Union of Indian Supreme Court for the first time declared RTI to be
part of Article 19 (1) (a).

State of U.P v. Raj Narain, it was held that right to information is included in article 19, justice
Mathew remark that that in a democracy, all agents of the public are responsible for their conduct,
and there can’t be too many secrets.

S.P. Gupta v. Union of India, known as the Judges Transfer Case, it was held that disclosure of
information about appointment of judges had to be done to respect the Right to Information
implicit in the right to freedom of speech and expression.

Union of India v. Association for Democratic Reforms, it was held that voters had the right to
know about the criminal background of any candidate, as this is essential to free and fair elections.

In Express Newspaper Ltd VS. Union of India, the court observed that the foremost purpose of
the right to freedom of speech and expression is that people should be able to form an opinion and
freely communicate it to others.

In RP Ltd. vs. Indian Express Newspaper. the court held that “Right to information is a basic right
and falls within the purview of Article 21 i.e., right to life and personal liberty”.

Vvi Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra
Agarwal, 2019 SCC (5 Judges Bench)

In this case, the respondent has asked for the information pertaining to the decision-making process
by the Supreme Court Collegium. Though the operation of the order of the Central Information
Commission (CIC) was stayed by the Supreme Court in December 2009, the case was referred to
a larger Bench in 2010 and was pending hearing until August 2017 when a 3 Judge Bench referred
the same to a 5 Judge Constitution Bench which recently heard arguments in the case and reserved
the same for judgement. The issue involved in this case was that the Court will decide whether the

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public disclosure of information pertaining to decisions made by the Collegium, curtails the
independence of the judiciary? Further, does Section 8(i)(j) of the RTI Act exempt the CJI from
publicly disclosing information, on the grounds of protecting the privacy of members of the
Collegium?

On 4th April 2019, the Constitution Bench reserved judgement. On 13 November, the Supreme
Court pronounced its judgement. It held that judicial independence does not stand in contradiction
with the need for transparency. It observed that whether information is subject to public disclosure
must be decided on a case-by-case basis, by weighing competing public interest claims. For
example, the right to information may have to be weighed against the right to privacy. On the first
CIC order pertaining to Collegium decision-making, it directed its CPIO to re-examine the request,
but by considering the objections, if any, by third parties, as stipulated under Section 11(1) of the
RTI Act. On the second CIC order pertaining to personal assets, the Court upheld the Delhi High
Court judgement and directed the CPIO to disclose the relevant information to Subash Agarwal.

Reserve Bank of India Vs. Jayantilal N. Mistry (2015)

The issue before the Court in this case was whether the Reserve Bank of India as well as other
banks can deny information sought by the public on the ground of economic interest commercial
confidence, fiduciary relationship with other Bank on the one hand and the public interest on the
other, and if not, to what extent can information be provided by the banks under the right to
Information Act, 2005? Answering the question in the negative, the Court held that the RBI was
to act in the interest of the public at large for it is the statutory duty of the Reserve Bank of India
to comply with the provisions of the Right to Information Act, 2005. The Court rejected the
argument that information could be withheld in view of the fiduciary relationship with other banks
and held that the RBI does not place itself in a fiduciary relationship with the financial institutions
because, the reports of the inspections, statements of the bank, information related to the business
obtained by the RBI are not under the pretext of confidence or trust.

Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors. (2011)

The question, in this case, was whether a student’s right to information under The Act involves the
right to request and evaluate his answer sheets and take certified copies with him? The Central
Board of Secondary Education stated that the reason it held the information is that there existed a

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fiduciary relationship and hence, came under the exemption provisions of Section 8(1)(e) of the
RTI Act. Fiduciary Relationship is defined as one party having confidence in the other party with
regards to his affairs, business, and or transactions. An examining body cannot be in a fiduciary
relationship with reference to students who take the exam. Therefore, there existed no exemption
under the Section, and answer books had to be provided to the student.

Conclusion

As it has been rightly said that no democracy can without well informed citizen. Right to
information has been given to every citizen, therefore it must be exercised and used by all
individuals and citizens as a matter of their own right as all citizens in this country exercise their
right to vote. So, the institutions should develop a system where individuals/citizens should be
prompted to ask for the information.

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